Boeing and McDonnell Douglas had been holding on-and-off negotiations on a possible merger as early as 1994. Talks broke down in January 1996, when McDonnell Douglas balked at a $10 billion offer from Boeing, arguing Boeing should pay closer to $12 billion to $13 billion. Analysts said the unfavorable long-term outlook of McDonnell Douglas’ business – particularly of its commercial aircraft division – limited Boeing’s offer.42
In April 1996, McDonnell Douglas announced plans to build a 400-seat jumbo jet to challenge the monopoly status of Boeing’s 747 in that category. It was thought to be a signal that McDonnell Douglas planned on stepping up commercial offerings to remain competitive, but it abandoned the jumbo plan in October, fueling speculation that McDonnell Douglas would exit the commercial aircraft business completely.43
In the meantime, Boeing acquired the space and defense units of Rockwell in August 1996, giving Boeing the preeminent position among contractors for the space shuttle and boosting its defense business, seen as a hedge against the cyclical demand for commercial aircraft.44 McDonnell Douglas, also, was eyeing a merger with Raytheon, a producer of radar systems for aircraft and a major defense contractor. Both were attempting to position themselves to win a $750 billion Pentagon contract for the Joint Strike Fighter in a competition with the largest U.S. defense contractor, Lockheed Martin.45 In November, the Defense Department narrowed the competitors for the Joint Strike Fighter contract to two by announcing that McDonnell Douglas’ proposal was no longer in the running.
By December 1996, McDonnell Douglas, the world’s largest manufacturer of military aircraft and number three manufacturer of commercial aircraft, faced with the loss of one of the most lucrative defense contracts in history, again went to the negotiating table with Boeing. Terms of the $13 billion merger were announced on December 15: The merged entity would be called “Boeing,” and Boeing’s CEO, Phil Condit, would be CEO of the new company. The company’s headquarters would be in Seattle – Boeing territory – not in McDonnell Douglas’ hometown of St. Louis. The merger came about after two embarrassing blows to the prestige of McDonnell Douglas, the loss of the Joint Strike Fighter contract and the cancellation of its jumbo jet project.46 Boeing would continue to market and produce McDonnell Douglas aircraft – the MD-80, MD-90, MD-95 and MD-11 – but for how long was unclear.
If approved, the merger would create a Boeing Company that was a world leader in both commercial and military aircraft production, and the leading contractor for NASA space programs. Boeing’s approximate 60 percent market share, combined with McDonnell Douglas’ less than 10 percent share, would give the merged entity about two-thirds of the world market for commercial aircraft, twice that of Airbus.47 A number of its patented technologies, some its own and some that would be acquired along with McDonnell Douglas, had been developed with government funding and then applied to commercial aircraft production, which would give Boeing a further advantage in production. Additionally, Boeing would have access to an army of McDonnell Douglas engineers and production facilities at a time when it was struggling to meet demand for the 737; the merger would allow production of the 737 to increase from 10 per month to 17 per month.48
The announcement of the merger set competition authorities into motion on both sides of the Atlantic. In the United States, there was immediate question not as to whether the merger would be examined by antitrust authorities, but which agency, the Justice Department or the Federal Trade Commission, would have jurisdiction to investigate the merger.49 In the European Union, rules require that a merger must be examined if the combined EU sales of the merging companies exceed €250 million, a limit easily dwarfed by the Boeing-McDonnell Douglas combination.50
EU competition authorities were also concerned about Boeing’s April 1997 announcement that it had concluded exclusive supply contracts with American, Delta and Continental airlines over the next 20 years. The deals with American, Delta and Continental, respectively the world’s first, second and seventh-largest airlines, would cripple Airbus’ attempts to increase its market share in the United States.51 Nonetheless, it would be difficult to argue that these exclusive supply arrangements were related to Boeing’s proposed merger. Boeing would have production capacity, with or without the addition of McDonnell Douglas, to honor its obligations under the contracts, including delivering planes on a shorter timetable and at a discount to prevailing prices.
Comparison of U.S. and EU Competition Policy
U.S. antitrust law and EU competition law share many common characteristics. Both aim to preserve a competitive market environment by preventing abuse of a dominant or monopoly position and to protect consumers by maintaining the free flow of goods and services. Yet the United States and European Union have developed competition laws under different historical circumstances and in response to different needs. Each body of competition law also contains a significant amount of “wiggle room.” As a result, there is substantial variation in the application and enforcement of competition policy on the two sides of the Atlantic.52
What happens when the economics of an industry, such as the commercial aircraft industry, presume a natural dominance by one or a few firms? Commercial aircraft production on both sides of the Atlantic has demonstrated not only a trend toward consolidation into fewer firms, but also a desire on the part of governments to promote a “national champion” producer. Competition authorities in the United States and European Union were likely to investigate the merger of Boeing and McDonnell Douglas. But which mentality would dominate: the desire to preserve competition or the desire to promote a national champion?