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The Case of Coal: Should All Horizontal Mergers Be Held Illegal?

IN the last decade, decisions of the Supreme Court have breathed new life into the merger provisions of the antitrust laws. Some practitioners might say they have made Section 7 of the Clayton Act into a dragon with a tongue of flame. Such attorneys envisage all capital transactions as in danger of incineration and fear that the economy may be slowed by such a restrictive interpretation of anti-merger legislation." Mergers of competing firms have been the subject of particularly stringent rules. There is authority for the proposition that no such merger can be lawful.2 Let us test the validity of that rule in an industry which has seen little anti-merger litigation. One such industry is the mining of bituminous coal. For decades the word "chaos" has been repeatedly applied to the coal business.3 Congressional hearings have been held since at least 1918, seeking some solution to the industry's "excess capacity."4 It is an industry in which there