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66 Antitrust L.J. 701 (1997-1998)
Antitrust Analysis of Joint Ventures - An Overview

handle is hein.journals/antil66 and id is 711 raw text is: ANTITRUST ANALYSIS OF JOINT VENTURES:
AN OVERVIEW
GREGORY J. WERDEN*
I. INTRODUCTION
Since last Spring, the Federal Trade Commission has been considering
antitrust policy toward competitor collaboration, particularly in the form
of joint ventures. Conduct falling within the apparent scope of the FTC's
consideration is infinite in variety and diverse in its antitrust treatment.
Rather than undertake the daunting task of compiling a complete road
map to the antitrust analysis of all such conduct, this article sets out
general principles for the analysis of joint ventures, broadly defined' as
entities that play a role in the marketplace in their own right2 and
are owned or controlled3 by two or more persons (the joint venture's
* Director of Research, Economic Analysis Group, Antitrust Division, U.S. Department
of Justice. The views expressed in this article are not purported to be those of the U.S.
Department of Justice. Helpful comments were provided by Adam Hirsh, Elaine Johnston,
Chris Kelly, Cathy O'Sullivan, Mark Popofsky, George Rozanski, David Seidman, and
Phil Weiser.
I Far narrower definitions have been offered. See, e.g., Joseph F. Brodley, Joint Ventures
and Antitrust Policy, 95 HARv. L. REv. 1521, 1526 (1982):
[A] joint venture may be defined for antitrust purposes as an integration of
operations between two or more separate firms, in which the following conditions
are present: (1) the enterprise is under joint control of the parent firms, which
are not tinder related control; (2) each parent makes a substantial contribution
to the joint enterprise; (3) the enterprise exists as a business entity separate from
its parents; and (4) the joint venture creates significant new enterprise capability
in terms of new productive capacity, new technology, a new product, or entry
into a new market.
Moreover, the term joint venture appears to have been used in other areas of law and
in much antitrust case law to refer to a concept narrower than the broad conceptualization
of a joint venture used here.
That role can be as slight as submitting a single joint bid, supplying a single participant
with a minor input, or offering a single bundled product, such as the combined lift ticket
in Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 589-91 (1985). Although
manyjoint ventures are incorporated, have a place of business, employees, and such, none
of that is necessary to satisfy the broad definition used here.
I All participants in a joint venture commonly have ownership interests, but a joint
venture may feature ownership by some participants and contractual rights for others,
and the contractual rights may or may not be comparable to ownership rights. It is even
possible for no participant in a joint venture to own a share of the venture itself because

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