[Senate Hearing 106-597]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 106-597

      THE COMPETITIVE IMPLICATIONS OF THE BFGOODRICH/COLTEC MERGER

=======================================================================

                                HEARING

                               before the

                       SUBCOMMITTEE ON ANTITRUST,
                    BUSINESS RIGHTS, AND COMPETITION

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                                   on

  EXAMINING THE COMPETITIVE AND NATIONAL SECURITY IMPLICATIONS OF THE 
          PROPOSED MERGER BETWEEN BFGOODRICH/COLTEC INDUSTRIES

                               __________

                             JUNE 10, 1999

                               __________

                          Serial No. J-106-31

                               __________

         Printed for the use of the Committee on the Judiciary

                    U.S. GOVERNMENT PRINTING OFFICE
65-461 CC                   WASHINGTON : 2000





                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire

             Manus Cooney, Chief Counsel and Staff Director

                 Bruce A. Cohen, Minority Chief Counsel

                                 ______

      Subcommittee on Antitrust, Business Rights, and Competition

                      MIKE DeWINE, Ohio, Chairman

ORRIN G. HATCH, Utah                 HERBERT KOHL, Wisconsin
ARLEN SPECTER, Pennsylvania          ROBERT G. TORRICELLI, New Jersey
STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont

             Pete Levitas, Chief Counsel and Staff Director

        Jon Leibowitz, Minority Chief Counsel and Staff Director

                                  (ii)
                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page
DeWine, Hon. Mike, U.S. Senator from the State of Ohio...........     1
Kohl, Hon. Herbert, U.S. Senator from the State of Wisconsin.....     4

                    CHRONOLOGICAL LIST OF WITNESSES

Statement of Hon. David M. McIntosh, a Representative in Congress 
  from the State of Indiana......................................     5
Statement of Hon. Dennis J. Kucinich, a Representative in 
  Congress from the State of Ohio................................     8
Prepared statement of Kevin Arquit, head of the antitrust 
  practice of Rogers & Wells, LLP, and Steven Newborn, managing 
  partner of Rogers & Wells' Antitrust Group.....................    12
Panel consisting of Terrence G. Linnert, senior vice president 
  and general counsel, BFGoodrich Co., Cleveland, OH; Carl R. 
  Montalbine, senior vice president and general manager, Aircraft 
  Landing Systems, AlliedSignal, South Bend, IN; David R. Oliver, 
  deputy under secretary of defense, acquisition and technology, 
  Department of Defense, Washington, DC; Alan Reuther, 
  legislative director, International Union, United Automobile, 
  Aerospace and Agriculture Implement Workers of America, 
  Washington, DC; and Einer Elhauge, professor of law, Harvard 
  Law School, Cambridge, MA......................................    15

                ALPHABETICAL LIST AND MATERIAL SUBMITTED

DeWine, Hon. Mike:
    Prepared statement of Kevin Arquit, and Steven Newborn.......    12
    Letter submitted from Senator Jesse Helms, dated June 10, 
      1999.......................................................    14
Elhauge, Einer:
    Testimony....................................................    63
    Prepared statement...........................................    65
Kucinich, Hon. Dennis J.:
    Testimony....................................................     8
    Prepared statement...........................................    10
Linnert Terrence G.:
    Testimony....................................................    15
    Prepared statement...........................................    17
McIntosh, Hon. David M.:
    Testimony....................................................     5
    Prepared statement...........................................     6
Montalbine Carl R.:
    Testimony....................................................    21
    Prepared statement...........................................    23
        Court cases, letters and charts..........................    31
Oliver, David R.:
    Testimony....................................................    58
    Prepared statement...........................................    58
Reuther, Alan:
    Testimony....................................................    60
    Prepared statement...........................................    61

 
      THE COMPETITIVE IMPLICATIONS OF THE BFGOODRICH/COLTEC MERGER

                              ----------                              


                        THURSDAY, JUNE 10, 1999

                           U.S. Senate,    
 Subcommittee on Antitrust, Business Rights
                                   and Competition,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:06 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Mike DeWine 
(chairman of the subcommittee) presiding.
    Also present: Senator Kohl.

OPENING STATEMENT OF HON. MIKE DeWINE, A U.S. SENATOR FROM THE 
                         STATE OF OHIO

    Senator DeWine. The hearing will come to order.
    I want to welcome you to the Antitrust, Business Rights and 
Competition Subcommittee hearing on ``The Competitive 
Implications of the Proposed Goodrich/Coltec Merger.''
    As many of you know, this proposed merger between 
BFGoodrich and Coltec Industries has attracted a great deal of 
controversy and attention. I have been following the progress 
of the deal since it was first announced in November of last 
year. At that point, Goodrich announced it would be relocating 
its headquarters from Ohio to North Carolina, resulting in the 
loss of 170 good-paying jobs in Ohio. That job loss alone 
obviously was a matter of concern, and my office immediately 
contacted Goodrich to discuss the issue.
    Not long after this announcement, I received a letter from 
David Burner, the chief executive officer of Goodrich. Further, 
my staff had several conversations and a meeting with Goodrich 
officials. In the letter that I received and in the subsequent 
meeting and conversations, we were told that only the 170 
headquarters jobs would be lost as a result of this merger. We 
were led to believe that the merger would not affect any of the 
other Goodrich jobs in Ohio.
    Permit me at this point to read a portion of the letter 
that I received from Mr. Burner on November 23 of last year. It 
states as follows:
    ``* * * [O]ur corporate headquarters in Richfield and our 
aerospace headquarters * * * will relocate to Charlotte. A 
total of 170 jobs will leave Northeast Ohio * * *'' The 170 
jobs represent about 5 percent of BFGoodrich's Ohio employment, 
which totals almost 3,400 jobs at more than a dozen sites 
around the State, including major operations in Akron, Avon 
Lake, Brecksville, Cincinnati, Cleveland and Troy. None of 
these other Ohio-based jobs will be affected by the relocation 
of the headquarters. Let me repeat: None of these other Ohio-
based jobs will be affected by the relocation of the 
headquarters.''
    Now, as we can see, the clear implication of that letter is 
that only the headquarters jobs would be lost. My office had 
very specific discussions with Goodrich representatives, and my 
staff came away from these discussions with the same conclusion 
that I reached: only the headquarters jobs were going to be 
lost.
    Now, I was already troubled by the potential loss of 
headquarters jobs in Ohio, but my concern grew dramatically 
last February, when my office received confidential documents 
submitted to the Defense Department--the Defense Department 
which was at that time examining the deal. These documents 
indicated that Goodrich was considering to do far more than 
just move the headquarters. In fact, Goodrich was considering 
closing the Cleveland Pneumatic landing gear facilities--
putting 650 additional Ohio jobs at risk.
    In fact, included as a packet of information submitted to 
the Department of Defense on February 1, 1999, by Goodrich is a 
chart showing three possible restructuring options Goodrich 
could pursue to achieve a cash reserve needed to pay for the 
costs of the merger. All three options had one striking 
similarity: they all included closing the Cleveland plant.
    This chart is not the only evidence that the Cleveland 
facility is in danger. In fact, on February 3, 1999, Goodrich 
submitted a letter to the Department of Defense providing a 
more detailed explanation of their plans for the landing gear 
operations. And let me read into the record some excerpts from 
that particular letter. Again, this is a February 3, 1999, 
letter from Goodrich to the Defense Department.
    ``The Company has been searching for business options and 
alternatives (including closing and moving equipment and 
operations from Cleveland * * *) for several years in an 
attempt to put its landing gear business on a more sound 
footing * * * After struggling mightily to improve productivity 
at the Cleveland facility, it determined that an important 
component of any long-range program would include closing this 
facility. Several options for doing so have been considered but 
rejected as not being economically feasible * * * This 
situation highlights one of the main attractions of the merger 
with Coltec * * * With the combined volumes of the two firms, 
one or more options may be attractive. In particular, the 
combined firm might well choose to close the Cleveland plant 
and plating facility * * *''.
    Now, this letter paints a far different picture about the 
fate of more than 600 Ohioans than the one that was offered to 
my office when the merger was announced. The letter makes it 
clear that Goodrich has been considering the Cleveland plant 
for years, and the merger with Coltec offers a good opportunity 
to do so. At no time was my office given any indication that 
the Cleveland facility could be closed until we obtained the 
aforementioned materials. Again, as I said earlier, we were all 
led to believe that only the headquarters jobs were at risk.
    Now, I should mention, in all fairness to Goodrich, that no 
final decision on the future of the facility has apparently 
been made. We have been told that a more thorough examination 
of the Coltec landing gear facilities and other relevant 
financial data is needed before making the final determination. 
But, frankly, that does not change the fact that Goodrich is 
clearly considering the option of closing the Cleveland plant 
and has been actively considering it for years. In fact, the 
documents indicate that one of the reasons Goodrich is 
interested in purchasing Coltec is because it could make 
closure of the Cleveland facility more economically feasible.
    This is how I came to the conclusion that Goodrich was not 
being forthright with me, nor with my office, nor with the 
people of Ohio, when it described how the merger could impact 
the State of Ohio. In response to this fundamental question, we 
were told initially by BFGoodrich that only headquarters jobs 
would be lost. It is clear, however, based upon these 
confidential submissions to the Defense Department, that there 
was far more to the Ohio side of the story than the loss of 
corporate headquarters jobs. Frankly, we received carefully 
tailored legalistic answers--technically accurate, maybe, but 
certainly misleading. Essentially, Goodrich was telling one 
story to the people of Ohio and another story to the 
regulators. I expect more candor from Goodrich, which has been 
a good corporate citizen of Ohio for many years. And I hope it 
will continue to work and build on its long history in Ohio. 
The people of Ohio, and the Goodrich workers and their 
families, deserve more candor.
    So I am going to take this opportunity today to explore 
these issues with Terry Linnert, who is here representing 
Goodrich. We hope and we expect that we can find out once and 
for all exactly what Goodrich plans to do. For the hundreds of 
Ohioans who work at Goodrich's Cleveland plant, the recent 
controversy naturally has created a great sense of uncertainty. 
I am pleased to also have with us today Mr. Alan Reuther from 
the United Auto Workers, representing those workers in Ohio, 
and we are certainly going to take this opportunity to discuss 
the issue of jobs with Mr. Reuther and the other panelists. 
These workers need to know what the future holds for them, and 
I hope and expect to get some straight answers.
    It is clear, however, that antitrust analysis does not 
generally include employment issues. Today's hearing, by 
necessity, goes well beyond the issue of jobs in Cleveland. As 
we began to investigate the potential impact of the merger, it 
became clear the merger itself posed significant competition 
issues.
    This is not surprising. As this subcommittee has noted 
before, our Nation is in the midst of an unprecedented wave of 
consolidations, and the aerospace industry has certainly seen 
its share of mergers and acquisitions. In fact, in July 1997, 
this subcommittee held a hearing to examine the broad policy 
and competition issues raised by consolidation in the defense 
industry, and since that time the trend towards consolidation 
has continued. By focusing on the Goodrich/Coltec deal in 
particular, this subcommittee will have an opportunity to 
examine the impact of a specific deal, in a specific market, in 
the context, though, of the broader trend towards 
consolidation.
    Accordingly, we will focus our efforts on the competitive 
implications of this proposed merger, but there are a few 
points that should be made clear from the outset. First, two of 
the parties represented here today, BFGoodrich and 
AlliedSignal, are parties to private antitrust litigation. This 
subcommittee, obviously, is not a court of law, and we do not 
intend to resolve the antitrust dispute between Goodrich and 
AlliedSignal. That matter is properly before the district court 
in Indiana and the Seventh Circuit, and we will be very careful 
not to interfere in any way with those proceedings. 
Accordingly, let me caution our witnesses here today to keep in 
mind the ongoing court case and any protective orders that may 
now be in place. We are confident that this subcommittee can 
examine the competitive issues raised by the proposed merger 
without in any way releasing any confidential or proprietary 
information, and I expect our witnesses to take all necessary 
precautions in that regard.
    Another point, also related to the ongoing litigation, is 
that this hearing is going to examine issues from a perspective 
more broad than just a strict antitrust review. The antitrust 
issues, such as product market definition and whether or not 
the proposed merger ``substantially lessens competition'' as 
contemplated by section 7 of the Clayton Act, are not going to 
be resolved by this hearing. Those issues have been examined by 
the Federal Trade Commission and are currently being examined 
again by the Federal courts as a result of the private 
litigation. This subcommittee is going to take a broader look 
at the competition and national security implications of this 
proposed merger.
    Most importantly, I am troubled by the possibility that the 
only two major domestic landing gear manufacturers will merge, 
leaving the U.S. military with only one major domestic 
supplier. What impact will this have on the cost and quality of 
landing gear? Why does the Defense Department believe that such 
a merger is acceptable? And what types of factors go into their 
analysis of a deal such as this one? These are some of the 
questions that we expect to explore this afternoon.
    We will go into these issues in more detail, and we are 
glad to have here today, David Oliver, representing the 
Department of Defense. I would like to note that we often hear 
the testimony of our Government witnesses on separate panels, 
but Mr. Oliver has agreed to provide his testimony in the 
context of the complete panel, and we certainly appreciate his 
consideration. We think it will facilitate our hearing and make 
it more understandable.
    Let me at this point turn to my colleague on the committee, 
the ranking minority member, Senator Kohl.

 STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM THE STATE 
                          OF WISCONSIN

    Senator Kohl. Thank you, Mr. Chairman, and let me commend 
you for holding this timely hearing. Our subcommittee has 
studied defense industry consolidation before. We realize that 
this is a complex issue, and the Goodrich/Coltec merger reveals 
to us why.
    On the one hand, because Goodrich and Coltec are the only 
two domestic producers of aerospace landing gear, this deal 
will result in only one remaining U.S. manufacturer. From an 
antitrust perspective, that could create problems for 
suppliers, and it could also have troubling implications for 
the Department of Defense. More than that, even if these 
companies gain efficiencies, it may be at the expense of jobs, 
especially in northern Ohio.
    So if there is any way that the merged companies can make a 
commitment to our panel to minimize that pain, it would be nice 
for them to tell us that today. And I am very concerned by what 
appears to be attempts by Goodrich to mislead Senator DeWine.
    On the other hand, like many mergers, this one produces its 
fair share of benefits. For example, Coltec, which has a plant 
in Beloit, WI, is heavily leveraged. Hopefully, Goodrich will 
bring an even balance sheet to the table, creating a 
financially healthy company, dedicating more money for 
investment, and thereby generating more jobs instead of fewer. 
Perhaps that is why the Federal Trade Commission and the 
Department of Defense decided not to block this merger and why 
it is unclear whether the Seventh Circuit will uphold the 
temporary injunction stalling this deal when it hears arguments 
tomorrow in Chicago.
    That said, I again support you, Senator, for closely 
examining this merger. And although I have to leave for another 
commitment, I may submit a few written questions to our 
witnesses.
    Thank you, Mr. Chairman.
    Senator DeWine. Senator Kohl, thank you very much.
    Let me move directly to our two members of the first panel. 
Dennis Kucinich was elected to Congress in 1996. He represents 
the 10th District of Ohio, which includes parts of Cleveland, 
Lakewood, and Parma. Representative Kucinich previously served 
on the city council and as mayor of Cleveland. He is currently 
the ranking minority member of the House Subcommittee on 
National Economic Growth.
    Congressman David McIntosh was elected to Congress in 1994. 
He represents Indiana's 2nd District, which includes the cities 
of Muncie, Anderson, Columbus, and Richmond. He currently 
serves as chairman of the House Subcommittee on National 
Economic Growth.
    We will start with Representative McIntosh.

   STATEMENT OF HON. DAVID M. McINTOSH, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF INDIANA

    Representative McIntosh. Thank you, Mr. Chairman, and both 
Mr. Kucinich and I will have to leave for a vote. So if it is 
all right with you, I will submit my prepared testimony in full 
and summarize it for you so we can make sure both of us have a 
chance to speak.
    Basically, I commend you a great deal for holding this 
hearing and looking into this matter. Our subcommittee is also 
taking up an oversight hearing--actually, two oversight 
hearings on the BFGoodrich/Coltec merger, to determine whether 
the FTC has been able to properly evaluate this merger. And my 
concerns are three-fold:
    First, the anticompetitive effects that you addressed in 
your opening statement, particularly when we see the number of 
suppliers for airline landing gear shrinking from two down to 
one in the country. A tremendous impact on our commercial 
airlines as well as military purchasers of that equipment.
    Second, in my home state of Indiana, South Bend will be 
impacted by this merger. AlliedSignal provides the brakes and 
the wheels that are used on BFGoodrich and Coltec landing gear. 
The potential with one manufacturer of the finished product is 
that AlliedSignal will not be in the market anymore because 
BFGoodrich can produce all of the needed wheels and brakes in-
house. And so that is 1,100 jobs that are at risk in South Bend 
and something that brings a great deal of concern to me.
    AlliedSignal has been a great corporate citizen in that 
community, and brings a lot more than just those jobs, although 
the jobs are very, very important as, I think, the number six 
employer. But AlliedSignal also adds a lot to the South Bend 
community beyond simply a manufacturing industry in that area.
    The third is a concern that I have and share with you, Mr. 
Chairman, that not all of the facts are out and that you have 
personally had misrepresentations made to you, the same to the 
public. I have seen in the Wall Street Journal very similar 
misrepresentations about jobs not being lost in Ohio; 
therefore, presumably, the jobs could continue to be there in 
Indiana if the facility was open and able to be a viable 
alternative to the merged entity.
    We are going to look at that. We are going to look at all 
of the documents and find out and determine whether 
representations that may have been made in the process are 
being lived up to in the Federal Trade Commission's review.
    Finally, let me say--and, Mr. Kohl, address your point, 
because one of my colleagues, our Vice Chairman Paul Ryan, also 
mentioned it to me--that this merger is important to Coltec, 
which is in his district in Wisconsin. I am not against this 
merger per se. I believe in the free market. I think people 
should be able to do that. I understand there are some 
proposals for win-win solutions where there can be, instead of 
closure of the Ohio plant, a sell-off that would allow a 
willing buyer--and AlliedSignal is one such willing buyer--to 
establish a second alternative so that Coltec and BFGoodrich 
could continue with their strategic plan, have the synergy that 
comes about from that merger, but that the public could benefit 
from having two suppliers, competition to keep the price down, 
as well as increased quality.
    That is where I would like to see this ultimately come out. 
The role of the Government is to make sure that the 
anticompetitive effects and the national security implications 
are thoroughly reviewed and studied, and I appreciate your 
holding this hearing to make sure that those are being 
adequately addressed.
    Thank you for including us in this. Mr. Kucinich and I are 
working together on this subject. You will see strong 
bipartisan voices coming from the House.
    [The prepared statement of Representative McIntosh 
follows:]

            Prepared Statement of the Hon. David M. McIntosh

    Today, I am here, with Congressman Kucinich, to express my concerns 
over the proposed merger between BFGoodrich Company and Coltec, Inc, 
and whether the merger violates the anti-trust laws.
    I serve as the chairman of the House Government Reform Committee's 
Subcommittee on National Economic Growth, Natural Resources and 
Regulatory Affairs. Representative Kucinich serves as the 
Subcommittee's Ranking Member. Together, Mr. Kucinich and I are 
conducting a bipartisan investigation of the Federal Trade Commission's 
(``FTC'') and Department of Defense's review of BFGoodrich/Coltec 
merger. Our first field hearing on the issue is scheduled for June 19th 
in South Bend, Indiana.
    Based on the information that we have reviewed so far, I have three 
main areas of concern that I would like to raise today.
    First, I am concerned about the potential anti-competitive effects 
of the BFGoodrich/Coltec merger. I am a strong believer in the benefits 
of a free market economy. However, in order to ensure fair competition 
in the marketplace, our antitrust laws require the FTC to review 
mergers with the potential to have a significant impact on market 
share. In entering a preliminary injunction against the merger on April 
30th , Judge Allen Sharp of the U.S. District Court for the Northern 
District of Indiana concluded that the merger may be anti-competitive. 
According to Judge Sharp ``the merger would likely result in a U.S. 
monopoly * * * that would likely result in higher prices for [landing] 
gears.''
    That is a real problem. If the merger would result in a monopoly 
that unfairly forces consumers to pay higher prices for landing gear, 
the FTC should oppose the merger. Similarly, such review is needed to 
ensure that the merger does not encourage less innovation in the 
marketplace, decrease incentives for safety, or damage our National 
Defense.
    Second, I am concerned about the potential adverse impact of the 
merger on the economies of South Bend and Cleveland. Chairman DeWine, I 
am sure you are well aware of the likely economic impact of the merger 
on Cleveland. I want to make the Committee aware that economic impact 
of the merger on South Bend's economy is potentially devastating as 
well.
    AlliedSignal, Inc. has a plant in South Bend that is an industry 
leader in manufacturing wheels and brakes for commercial and military 
aircraft. If BFGoodrich and Coltec complete this merger and, if as a 
result of the merger AlliedSignal is denied a fair opportunity to 
compete, AlliedSignal's South Bend business could be in significant 
danger.
    AlliedSignal is the sixth largest employer in South Bend, with 
1,100 employees. Most are high paying, technology driven jobs, 
averaging more than $18 per hour. These sort of high paying 
manufacturing jobs are vital to the South Bend community.
    But, AlliedSignal's contributions to South Bend are not solely 
economic. AlliedSignal has been a leading corporate citizen in South 
Bend for years. That is why civic leaders like Patrick M. McMahon, the 
Executive Director of South Bend's Project Future, are concerned about 
the potential impact of the merger. AlliedSignal and its employees 
serve their community by helping to organize civic and volunteer 
projects, making charitable contributions, and participating on local 
boards of directors for many non-profit organizations. I, for one, want 
to help ensure that these great contributions continue.
    Third, I am concerned about honest and open public debate on this 
issue. Based on our initial review of documents, I am concerned that 
BFGoodrich may have been less than candid regarding its intentions to 
close its landing gear operations in Cleveland.
    In public statements to the Wall Street Journal, the Cleveland 
Plain Dealer, and others, BFGoodrich indicated that the merger would 
not affect jobs in Cleveland. For example, according to BFGoodrich's 
November 23, 1998 press release announcing the merger, ``No other Ohio-
based jobs will be affected by the decision to relocate the 
headquarters. The company currently employs approximately 3,300 Ohioans 
at more than a dozen locations around the state, including major 
operations in Akron, Avon Lake, Brecksville, Cincinnati, Cleveland and 
Troy.'' In the same press release, BFGoodrich CEO David L. Burner noted 
that BFGoodrich has ``a long history here in Ohio, and many ties to the 
region. We intend to maintain those ties in as many ways as possible, 
including through the more than 3,000 Goodrich employees who will 
remain in Ohio.''
    However, in documents presented to the Department of Defense, 
BFGoodrich indicates a much different plan. In a letter addressed to 
the Department of Defense on February 3, 1999, BFGoodrich's attorney 
indicated that ``[f]or much of the ownership of [Cleveland Pneumatic 
Corporation], BFG has evaluated the possibility of reconfiguring its 
manufacturing and assembly capacity for landing gear. After struggling 
mightily to improve productivity at the Cleveland facility, it 
determined that an important component of any long range program would 
include closing the facility.''
    In another document presented to the Department of Defense on 
February 1, 1999, BFGoodrich presents three options for restructuring 
its operations after the BFGoodrich/Coltec merger. All three options 
included the following phrase ``Close Cleveland/Plating * * * Now.''
    It is my hope that today your committee will be able to shed some 
light on this issue.
    Now, I am not here to say ``no'' to this merger. There is a win-win 
solution. I am told that if BFGoodrich sells its landing gear facility 
in Cleveland to AlliedSignal, everyone could win. BFGoodrich and Coltec 
would complete their merger, because the sale would ensure competition 
in the landing gear industry. AlliedSignal would obtain the opportunity 
to develop landing gear systems that use its aircraft wheels and 
brakes. And, workers in South Bend and Cleveland could keep their jobs 
and continue to have the opportunity to compete in the marketplace. 
This is a common sense solution; I hope all parties will reconsider it.
    And, I would emphasize that this solution is not only important for 
South Bend and Cleveland; but it is important for our Nation as well. 
Healthy competition leads to lower prices, increased innovation, and 
improved quality of safety, as industry leaders are forced to improve 
in an effort to compete in the marketplace. It is these positive 
benefits of competition that the antitrust laws are designed to 
protect.
    In addition, we may have a direct national interest in having at 
least two domestic suppliers of landing gear. The proposed merger of 
BFGoodrich and Coltec would leave the United States with only one 
domestic landing gear manufacturer for large commercial and military 
aircraft. After the merger, the only other major landing gear 
manufacturer in the world would be Messier-Dowty, which is owned by the 
French government. I know that the Department of Defense has looked at 
the issue and determined that it has no objection to the merger. But, 
I, for one, am still not convinced of the wisdom of allowing a merger 
that would leave us with only one domestic manufacturer of landing 
gear.
    Chairman DeWine, I know you plan to have David Oliver, Deputy Under 
Secretary of Defense Acquisition and Technology for the Department of 
Defense, testify here today. I hope he will be able to address this 
concern.
    In closing, I certainly appreciate the difficult task before you 
today. As in any antitrust dispute, the issues are complex and answers 
never easy. But, I am here because I want to ensure that the Hoosiers 
who work for AlliedSignal are given a fair opportunity to compete. 
After all, when applied correctly, that is what antitrust laws are 
designed to accomplish--fair competition.
    And, rest assured. If the 1,100 Hoosier workers at AlliedSignal are 
given a fair opportunity to compete, I have no doubt they will be 
successful. That's just the way it is in Indiana.
    Thank you for the opportunity to testify today on this important 
issue.

    Senator DeWine. Congressman, thank you very much.
    Congressman Kucinich.

   STATEMENT OF HON. DENNIS J. KUCINICH, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF OHIO

    Representative Kucinich. Thank you very much, Senator 
DeWine, and I want to thank you for holding this hearing and 
for your leadership in this important area which relates to the 
economic stability of a big industry in our State. So I thank 
you on behalf of my own constituency and the working men and 
women who have relied on your leadership. Also thanks to 
Congressman McIntosh for the chance to work with him on this 
issue.
    Unfortunately, we are going to have to leave for a vote, 
but I did want to make a few points, and I will submit my 
entire testimony for the record.
    Senator DeWine. It will be made part of the record.
    Representative Kucinich. BFGoodrich executives, including 
the BFGoodrich chief executive officer, made representations to 
public officials that the Cleveland facility would not be 
closed as a result of the merger. In fact, BFGoodrich only 
admitted to relocating jobs in its corporate headquarters to 
the merged company's new headquarters in the South, and the 
press release issued by BFGoodrich explicitly states that no 
other Ohio jobs will be affected by the decision to relocate 
the headquarters after the merger.
    However, BFGoodrich has also made diametrically opposite 
representations to officials within the Department of Defense 
and to the Federal Trade Commission. Specifically, BFGoodrich 
argued that these Federal agencies should not oppose the merger 
because of the efficiencies which would result from it. One of 
the efficiencies supposedly promised to the Federal regulators 
was the closing of the Cleveland plant. BFGoodrich revealed 
that every option being considered by the company once the 
merger was approved hinges on the closing of the Cleveland 
facility.
    Now, why would BFGoodrich tell public officials one story 
and tell Federal regulators the opposite story? I hope you are 
able to determine that in this hearing.
    The subject of today's hearing is not only a local issue. 
Closing the Cleveland facility will not only put hundreds of my 
constituents out of work, but it will put U.S. taxpayers over a 
barrel. The U.S. Government will be beholden to a monopoly 
maker of landing gear for military planes. This merger will 
create a legal monopoly. With the recent public disclosure of 
BFGoodrich intentions to close the Cleveland facility and the 
fact that the Federal regulators knew it but did not act on the 
knowledge that the merged company would be a monopoly, I 
believe that several significant questions should be asked of 
the Federal regulators.
    First, why did the Department of Defense not oppose this 
merger when it clearly concerned the complete and final 
consolidation within the domestic landing gear industry?
    Does it really benefit the Department of Defense and the 
taxpayer who foots the bill that the Government would not 
oppose the creation of a legal monopoly?
    What are the options available to the U.S. Government if 
the BFGoodrich/Coltec merged company, for whatever reason, 
cannot complete a contract?
    These are questions that ought to be asked.
    I am also hopeful that it will be asked of the Department 
of Defense: If the U.S. Government becomes aware that a 
contractor has shown a lack of integrity through 
misrepresentations made in an important decisionmaking process, 
would the U.S. Government have an obligation to consider 
suspension or debarment of that contractor from further 
Government business?
    Second, as I am sure the committee knows, the only 
remaining source for landing gear structures for U.S. military 
aircraft and commercial aircraft is the Messier-Dowty firm, a 
firm owned by the French Government. The BFGoodrich/Coltec 
merger raises this question: Are we prepared to divulge 
classified information about our military aircraft to a foreign 
government if the merged company is not able to fulfill a 
contract and the Department of Defense has to contract with a 
French company?
    Third, what consideration have the regulators given to some 
of the other well-known consequences of monopoly, namely, 
increased costs and loss of innovation. Direct competition 
between two or more domestic competitors imposes cost 
discipline on the competitors. That benefits the taxpayer. But 
will the creation of a monopoly lead to higher prices for 
landing gear equipment, making the cost to taxpayers higher? 
And what will be the consequences for U.S. commercial companies 
who also have to pay higher costs to the monopoly? Will the 
price of commercial airplane tickets go up as commercial 
carriers pass on to American consumers the higher prices of 
equipment?
    Further, without competition between two or more domestic 
competitors, what will force the merged company to maintain 
high quality and safety standards? Could the loss of 
competition cause a loss in workmanship quality down the road? 
Could the loss of competition that drives innovation result in 
future landing gear that is less than cutting edge, less than 
state of the art in terms of safety and combat effectiveness?
    Finally, Senator DeWine and Senator Kohl, the closing of 
the Cleveland facility caused by this merger will exact a 
significant cost on the workers, the families that rely on them 
in Cleveland, and the Cleveland community which is supported by 
the wages paid to these workers. The creation of this monopoly 
could have costly and even dangerous consequences for the U.S. 
taxpayers and consumers.
    Whatever anyone's position on the merits of the merger, it 
cannot be disputed that a regulatory process which allows 
merging companies to make diametrically opposed statements to 
public officials and regulatory agencies is fundamentally 
flawed. Public officials have a right to know accurate 
information about a petitioning company's intentions. Public 
officials have a right to know if these jobs are being 
eliminated so that this work can be done--if it is eliminated 
because they want the work done in non-unionized shops in other 
States. Public officials have a right to know, and the 
regulatory process should provide it.
    I thank Senator DeWine and Senator Kohl for their careful 
consideration of the topic of this important hearing, and I 
thank Mr. McIntosh for his participation.
    [The prepared statement of Representative Kucinich 
follows:]

             Prepared Statement of Hon. Dennis J. Kucinich

    Mr. Chairman, and distinguished members of the Committee, I 
appreciate the opportunity to appear before you to discuss the pending 
merger of BFGoodrich and Coltec Industries Inc. I am also pleased to be 
sharing this panel with my colleague from Indiana, Mr. McIntosh.
    I represent the West Side of Cleveland, Ohio, and the surrounding 
suburban communities. I became involved with this merger because of its 
impact on the BFGoodrich facility in Cleveland. That facility, called 
Cleveland Pneumatic Company, employs about 800 people, many of whom are 
my constituents. The jobs held by my constituents are high paying jobs, 
held by union workers, who have negotiated long term collective 
bargaining agreements with BFGoodrich.
    In the pursuit of federal and political approval of its planned 
merger, BFGoodrich executives, including BFGoodrich's Chief Executive 
Officer, made representations to public officials that the Cleveland 
facility would not be closed as a result of the merger. In fact, 
BFGoodrich only admitted to relocating jobs in its corporate 
headquarters to the merged company's new headquarters in the South. A 
press release issued by BFGoodrich explicitly states that ``[n]o other 
Ohio-based jobs will be affected by the decision to relocate the 
headquarters'' after the merger.
    However, BFGoodrich has also made diametrically opposite 
representations to officials within the Department of Defense and the 
Federal Trade Commission. Specifically, BFGoodrich argued that these 
federal agencies should not oppose the merger because of 
``efficiencies'' that would result from it. One of the efficiencies 
supposedly promised to the federal regulators was the closing of the 
Cleveland plant. It was reported on television in Cleveland last night, 
and in the Cleveland Plain-Dealer today, that in one such 
representation to federal regulators, BFGoodrich revealed that every 
option being considered by the company once the merger was approved 
hinged on closing the Cleveland facility.
    How could BFGoodrich tell public officials one story and tell 
federal regulators the opposite story? Over the last three months I've 
attempted to ascertain whether BFGoodrich was indeed saying one thing 
to public officials and another to federal regulators. On April 15, 
1999, I wrote a letter to BFGoodrich's Chief Executive Officer for 
information about whether the company intended to close the Cleveland 
plant. In that same letter, I asked for all documents related to the 
merger provided by BFGoodrich to the Federal Trade Commission and the 
Department of Defense. I did not even receive the courtesy of a 
response. Only after another letter requesting the same documents was 
sent to BFGoodrich by the House investigative subcommittee chaired by 
Mr. McIntosh and on which I am the Ranking Democratic member, did 
BFGoodrich provide any documents, and those are an incomplete set of 
documents.
    The subject of today's hearing is not only a local issue. Closing 
the Cleveland facility will not only put hundreds of my constituents 
out of work, but it will put U.S. taxpayers over a barrel. The US 
government will be beholden to a monopoly maker of landing gear for 
military planes. This merger will create a legal monopoly. With the 
recent public disclosure of BFGoodrich's intentions to close the 
Cleveland facility and the fact that federal regulators knew it but did 
not act on the knowledge that the merged company would be a monopoly, I 
believe that several significant questions should be asked of the 
federal regulators.
    First, why did the Secretary of Defense not oppose this merger, 
when it clearly concerned the complete and final consolidation within 
the domestic landing gear industry? Does it really benefit the 
Department of Defense and the taxpayer who foots the bill that the 
government would not oppose the creation of a legal monopoly? What are 
the options available to the U.S. government if the BFGoodrich/Coltec 
merged company, for whatever reason, cannot complete a contract?
    Second, as I'm sure the committee knows, the only other remaining 
source for landing gear structures for U.S. military aircraft and 
commercial aircraft is Messier-Dowty, a firm owned by the French 
government. The BFGoodrich/Coltec merger raises this question: Are we 
prepared to divulge classified information about our military aircraft 
to a foreign government if the merged company is not able to fulfill a 
contract and the Department of Defense has to contract with the French 
company?
    Thirdly, what consideration have the regulators given to some of 
the other, well-known consequences of monopoly, namely increased costs 
and loss of innovation? Direct competition between two or more domestic 
competitors imposes cost discipline on the competitors. That benefits 
the taxpayer. But will the creation of a monopoly lead to higher prices 
for landing gear equipment, making the cost to taxpayers higher? And 
what will be the consequence for U.S. commercial companies, which will 
also have to pay higher costs to the monopoly? Will the price of 
commercial airplane tickets also go up, as commercial carriers pass on 
to American consumers the higher prices of equipment? Further, without 
competition between two or more domestic competitors, what will force 
the merged company to maintain high quality and safety standards? Could 
the loss of competition cause a loss in workmanship quality down the 
road? Could the loss of competition that drives innovation result in 
future landing gear that is less than cutting-edge, less than state-of-
the-art in terms of safety and combat effectiveness?
    In conclusion, the closing of the Cleveland facility caused by this 
merger will exact a significant cost on the workers, the families that 
rely on them in Cleveland, and the community, which is supported by the 
wages paid to these workers. The creation of this monopoly could have 
costly and even dangerous consequences for the U.S. taxpayer and 
consumers. Whatever your position on the merits of this merger, it 
cannot be disputed that a regulatory process which allows merging 
companies to make diametrically opposed statements to public officials 
and regulatory agencies is fundamentally flawed. Public officials have 
a right to know accurate information about a petitioning company's 
intentions. Public officials have a right to know if these jobs are 
being eliminated so that this work can be done in a non-unionized shop 
in another state. Public officials have the right to know the truth, 
and the regulatory process should provide it.
    I look forward to this hearing, and the hearings that 
Representative McIntosh and I will be holding on June 19 in South Bend 
Indiana, and on July 7 in Cleveland, as a way of resolving these 
issues.

    Senator DeWine. We would like to thank you and, of course, 
excuse both of you. We know that the clock is running and you 
have to get over and vote. But I just want to thank you both 
for some very excellent statements, and we look forward to 
working with both of you on this issue in the future.
    Representative Kucinich. Thank you.
    Representative McIntosh. Thank you. And, Mr. Chairman, we 
will make any of the information we receive in our oversight 
investigation available to your committee so that you, too, 
will have all that.
    Senator DeWine. Good. We look forward to working with you.
    Representative Kucinich. Bipartisan effort. Thank you.
    Senator DeWine. Congressmen, thank you.
    Senator DeWine. We will now move to our second panel. I 
would now invite the members of the second panel to begin to 
come forward, and I will begin to introduce you at this point.
    Let me introduce the members of the panel. Our first 
witness is Terrence G. Linnert, who is a senior vice president 
and general counsel of the BFGoodrich Company. He joined 
BFGoodrich in 1997. Prior to joining BFGoodrich, he was a 
senior vice president and general counsel in the Senterior 
Energy Corporation.
    Carl R. Montalbine is a vice president and general manager 
of AlliedSignal Aircraft Landing Systems. His prior experience 
includes 3 years with Northrop B-2 Division and 16 years with 
Fairchild Republic.
    David R. Oliver is the Principal Deputy Under Secretary of 
Defense for Acquisition and Technology and was confirmed to 
this position by the U.S. Senate on May 21, 1998. Previously, 
Mr. Oliver worked for Westinghouse Electric Systems Group.
    Alan Reuther is the legislative director for the 
International Union, United Automobile, Aerospace, and 
Agricultural Implement Workers of America, the UAW. He has been 
legislative director for the UAW since May 1, 1991.
    Our final witness is Einer Elhauge, who comes to us from 
Harvard Law School. He joined the faculty of Harvard Law in 
1995 where he specializes in antitrust law.
    We welcome all of our witnesses.
    Let me also state that, before we start the testimony from 
this panel, I think it is important that we note that Professor 
Elhauge is a paid consultant for Crane Company, one of the 
parties involved in the litigation.
    Also, I would like to note that we have accepted the 
written statement of Kevin Arquit and Steven Newborn. They are 
also antitrust experts, and we will put their statements into 
the record, and without objection, they will be made a part of 
the record.
    [The prepared statement of Mr. Arquit and Mr. Newborn 
follows:]

        Prepared Statement of Kevin Arquit and Steven Newborn\1\
---------------------------------------------------------------------------

    \1\ Kevin J. Arquit heads the antitrust practice of Rogers & Wells 
LLP. Prior to joining Rogers & Wells in 1992, Mr. Arquit was General 
Counsel and then Director of the Bureau of Competition of the Federal 
Trade Commission.
    Steven A. Newborn is the managing partner of Rogers & Wells' 
Antitrust Group. Until March 1994, he was Director for Litigation at 
the Federal Trade Commission's Bureau of Competition, where he was in 
charge of the Commission's merger enforcement program. He was named to 
the Department of Defense's Antitrust Task Force that advised the 
Secretary of Defense concerning merger policy in the Defense Industry.
---------------------------------------------------------------------------
    We are pleased to have the opportunity to submit our views to the 
Subcommittee in connection with its hearing on the competitive 
implications of the BFGoodrich/Coltec merger.
    While we were approached recently by counsel for BFGoodrich and 
asked if we had an interest in commenting on any aspect of this merger, 
we have not been retained or compensated by any interested party to the 
merger and the views contained herein are our own. While we are not 
conversant in the specific facts surrounding this transaction, we are 
familiar with the merger review process generally and have been 
provided information about the review that occurred here.
    It is not uncommon, nor is it inappropriate, for competitors to try 
to convince the government that a particular merger should be 
challenged. What sets this transaction apart from any of thousands of 
other mergers that are granted government clearance every year is the 
extraordinary effort of two competitors--AlliedSignal Corp. and the 
Crane Co.--to take a second and third bite of the apple after full 
government review.
    This case is interesting because it provides a clear illustration 
of how these issues should be handled by the FTC and DOD. Although the 
FTC is always interested in what competitors, suppliers and (most 
importantly) customers have to say about a proposed merger, in the end, 
the agencies view this public input with an eye towards each party's 
financial or political self-interest in coming forward, and then make a 
decision based on the competitive effect that the transaction will have 
on the marketplace. After all, it is the purpose of the antitrust laws 
to protect competition as a whole and not individual competitors.
    Market shares are an important consideration in any merger analysis 
by the antitrust agencies. They are by no means the only determinant of 
consumer impact. Other key factors the FTC takes into consideration in 
reviewing mergers include: the existence and viability of foreign 
competitors; the need for large production scale to compete efficiently 
on a global basis; the ability of large buyers (in this case the 
Defense Department and commercial airline manufacturers) to use their 
market muscle to counter any threats to competition; and the likelihood 
that the combined entity will lead to lower cost or product 
innovations.
    The idea that DOD and the FTC missed the boat in approving this 
merger, as alleged by its critics, is hard to imagine, given the 
activist stance of both of late. Just this year, DOD has objected to 
several consolidations (including two proposals to acquire Newport 
News). Last year alone, the FTC challenged close to three dozen 
transactions that it concluded would lessen competition. The 
enforcement activity affected numerous key industries, including 
pharmaceuticals, petroleum, computers, and defense and aerospace.
    Nearly two years ago, this subcommittee conducted a hearing on 
``Defense Consolidation: Antitrust and Competition Issues.'' At that 
hearing, the subcommittee heard from Chairman Pitofsky of the FTC, 
Assistant Attorney General Klein from the Department of Justice, and 
Deputy Under Secretary of Defense Goodman. The subcommittee focused on 
whether the current review process and application of the merger 
guidelines provided sufficient assurance that defense consolidation 
would go far enough, but not too far. Each of the witnesses concurred 
that the review process and the merger guidelines were up to the task. 
In response to questioning by Senator DeWine, each witness assured the 
subcommittee that any additional major mergers would be carefully 
scrutinized.
    Secretary Goodman's description of the process and of DOD's 
objectives helps frame the issue for today's hearing. In 1997, 
Secretary Goodman testified as follows:

        Our objective is to ensure that we are maintaining competition 
        consistent with our acquisition strategies now and for the 
        foreseeable future. Competition involves not only the number of 
        bidders in a competition but also the quality of competition * 
        * *.
        In order to make this assessment, we gather information from a 
        variety of sources * * *. DOD also interact directly and 
        frequently with the antitrust agencies as the review proceeds. 
        The Department facilitates the antitrust agency review * * *. 
        DOD also communicates to the antitrust agencies its views 
        concerning the effects of the transaction.

    We understand that is precisely what happened here. Following the 
merger announcement, DOD and the FTC undertook parallel, full scale 
reviews of the proposed merger. The review at DOD lasted 4 months, 
until mid March, and the review at the FTC lasted 5 months, until mid 
April. Both agencies received information and documents from the 
parties to the transaction and from AlliedSignal and Crane. In 
addition, the staff of the FTC's Bureau of Competition requested and 
received from BFGoodrich all discovery material from the private 
litigation initiated by AlliedSignal and Crane. This level of scrutiny 
in itself is highly unusual. Here, consistent with the FTC's commitment 
carefully to scrutinize major mergers in the defense industry, we 
understand that representatives of AlliedSignal and Crane met with each 
FTC commissioner to argue their case. In the end, not one commissioner 
opted to challenge the merger, and DOD advised the FTC that it had no 
objection to the merger.
    With so many merger proposals in the pipeline, Government 
enforcement decisions have the potential to impact significantly every 
U.S. consumer as well as the future of many companies, big and small. 
More than ever, it is imperative that the Government stick by the same 
set of standards when ruling on mergers, whether it is BFGoodrich/
Coltec, AlliedSignal/Honeywell or countless transactions in the past. 
Government should continue to place the interests of consumers and 
competition over the financial interests of competing firms or the 
political interests of special interest groups.
    We have been actively involved in the merger review process for 
many years, both as government regulators and as private practitioners. 
We have worked with the Bureau of Competition staff who investigated 
this transaction as colleagues, and sat on the opposite side of the 
table from them as adversaries. Mr. Newborn served on the Defense 
Science Board's Task Force on Antitrust Aspects of Defense Industry 
Consolidation. Based on our experience and the scrutiny to which this 
transaction has been subjected, it is difficult to imagine that the DOD 
and FTC missed the boat on this merger.

    Senator DeWine. Finally, we are also entering into the 
record now a letter on this issue from U.S. Senator Jesse Helms 
of North Carolina, and without objection, that will be made a 
part of the record.
    [The letter of Senator Helms follows:]

                                 U.S. Senator, Jesse Helms,
                                     North Carolina, June 10, 1999.
Hon. Mike DeWine, Chairman,
Subcommittee on Antitrust,
Business Rights and Competition,
Committee on the Judiciary,
226 Dirksen Senate Office Building,
Washington, DC.
    Dear Mr. Chairman: I appreciate your interest in the proposed 
merger of BFGoodrich and Coltec, and I am grateful for your allowing me 
to share my views with your subcommittee. I certainly agree with you 
that vigorous competition is the engine that enables U.S. industries to 
lead the world in innovation and product development.
    I am persuaded that the BFGoodrich/Coltec merger will be beneficial 
for the landing gear industry, and I am satisfied that swift approval 
of this transaction is consistent with the principles of open 
competition which you and I share.
    This conclusion is supported, I believe, by several facts: First, 
the landing gear business is global in scope and requires the large 
production scale afforded by this transaction to compete efficiently; 
second, the merged entity will face competition from existing, viable 
domestic and foreign competitors; third, powerful buyers like Boeing, 
Lockheed Martin and the Department of Defense control the bidding for 
landing gears, thereby preventing suppliers from raising prices; and 
finally--and most importantly--no customer has opposed the merger.
    The opposition to the BFGoodrich/Coltec merger has come from 
AlliedSignal and Crane, whose motives appear obvious: Both offered to 
acquire Coltec, but were ultimately spurned. In the face of this 
rejection, both are now unleashing all available resources to prevent 
completion of the merger.
    AlliedSignal and Crane are now in court raising the same purported 
antitrust reasons for opposing the merger they initially proffered to 
the FTC. The FTC fully considered these arguments and rejected them for 
one clear reason: The theories lack factual support. This merger will 
not foreclose AlliedSignal and Crane from any aspect of the business 
which they now compete or aspire to compete.
    Mr. Chairman, the regulatory agencies have ably discharged their 
duties to the American people, and AlliedSignal and Crane will have 
their day in court. I do hope your subcommittee will not further delay 
completion of the BFGoodrich/Coltec merger.
    I'll very much appreciate your including this letter in the record 
of the proceedings.
            Sincerely,
                                               Jesse Helms,
                                                      U.S. Senator.

    Senator DeWine. Let me start from my left to right. Mr. 
Linnert, good afternoon.

PANEL CONSISTING OF TERRENCE G. LINNERT, SENIOR VICE PRESIDENT 
  AND GENERAL COUNSEL, BFGOODRICH CO., CLEVELAND, OH; CARL R. 
MONTALBINE, SENIOR VICE PRESIDENT AND GENERAL MANAGER, AIRCRAFT 
LANDING SYSTEMS, ALLIEDSIGNAL, SOUTH BEND, IN; DAVID R. OLIVER, 
DEPUTY UNDER SECRETARY OF DEFENSE, ACQUISITION AND TECHNOLOGY, 
     DEPARTMENT OF DEFENSE, WASHINGTON, DC; ALAN REUTHER, 
 LEGISLATIVE DIRECTOR, INTERNATIONAL UNION, UNITED AUTOMOBILE, 
   AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, 
 WASHINGTON, DC; AND EINER ELHAUGE, PROFESSOR OF LAW, HARVARD 
                   LAW SCHOOL, CAMBRIDGE, MA

                STATEMENT OF TERRENCE G. LINNERT

    Mr. Linnert. Good afternoon. Thank you, Mr. Chairman.
    Almost 2 years ago, in July 1997, this same subcommittee 
did undertake an oversight hearing on the questions of 
competition and consolidation in the defense industry and the 
administration's policy on defense mergers. Since then, your 
work has also included close looks at international antitrust 
and merger and acquisition activity in the telecommunication, 
energy, airline, information, entertainment, video, and sports 
marketplaces. All of those hearings raised the same questions 
as this panel presents to you today. There is a lot at stake in 
these types of transactions.
    Jobs are created or constricted, companies move or grow, 
products succeed or flop overnight. Missing an expanding market 
or not deploying a new technology or borrowing money at the 
wrong time can create a dinosaur. The results for the U.S. 
economy, our national security, and the economic health of our 
workers and shareholders can be disastrous.
    There will always be critics of these mergers beyond the 
appropriate interests of the Government or the courts. So be 
it. But those who usually carp the loudest are most afraid that 
they will lose a preferred position in a marketplace to new, 
more vigorous, more modern, and, yes, more formidable 
competition. And most frequently these corporate critics go out 
and get a deal of their own.
    Since the end of the Cold War, U.S. defense spending has 
declined dramatically. This reduced spending has driven 
consolidation throughout the defense industry. Other factors, 
such as globalization and requirements of scale and scope, have 
combined to drive consolidation throughout the defense and 
aerospace industry. Efficiencies of design and production and 
the need to generate and consume large amounts of capital 
quickly dictate corporate and management strategies that must 
be judged simultaneously in both the short and long term. For 
these reasons, just this week AlliedSignal a nearly $15 billion 
merger with Honeywell.
    One of the consequences of consolidation is typically the 
loss of some jobs. As part of the BFGoodrich merger with 
Coltec, approximately 170 headquarters positions will relocate 
to North Carolina. Similarly, the AlliedSignal/Honeywell merger 
will result in the closing of Honeywell's headquarters in 
Minneapolis and the elimination of 4,500 jobs.
    While these relocations have a human impact that we take 
very seriously, they should not overshadow the positive 
consequences of this merger. The plain fact is the merger of 
BFGoodrich and Coltec will produce significant benefits for 
employees, customers, shareholders, and our communities.
    Following the merger, BFGoodrich will employ 27,000 people 
worldwide. The size and diversity, financial and technical 
strength, and global reach of our businesses will create job 
stability and growth opportunities for our existing workforce.
    As a stronger worldwide competitor, we will be better 
positioned to compete for business abroad. A stronger, better 
BFGoodrich is good from our employees and our customers.
    Our customers are very sophisticated. They demand 
innovative and quality products backed by the highest levels of 
customer service and technical support, all at a fair and 
competitive price. Our customers are our lifeblood. If they had 
objected to this merger, it probably would not have gone 
forward. They have not objected because they are satisfied that 
they do have sufficient options to preserve healthy competition 
for their business, and they recognize the merger enables us to 
serve them better.
    I would like to frame this by showing you a chart, Senator, 
a chart that will show what the pre-merger suppliers are in 
three various businesses.
    This chart shows who the industry players are in the 
landing gear manufacture business, the wheel and brake 
business, and the brake controls business. Those are all parts 
of what has been referred to as an integrated landing system.
    If you look at the post-merger chart, you are going to see 
that not much changes as a result of this merger. In fact, 
there is no impact in either the brake control group of 
suppliers, the wheel and brake group of suppliers; there is one 
less landing gear manufacturer worldwide.
    Mr. Chairman, as you know, the Federal Trade Commission and 
the Department of Defense, like our customers, have each come 
to the same conclusion following lengthy and comprehensive 
examinations. Both agencies listened carefully to the arguments 
presented by AlliedSignal and Crane. Both agencies concluded 
that the merger should be allowed to proceed without objection.
    I would like to address more specifically your concern 
about the merger's impact on Ohio jobs. Following the merger, 
BFGoodrich will employ more than 3,000 people in Ohio in 
management, manufacturing, and research positions. Our 
performance materials business, with more than $1 billion in 
revenue, will remain headquartered in Brecksville, OH. Other 
BFGoodrich operations in Ohio are located in Akron, Avon Lake, 
Chagrin Falls, Cleveland, Columbus, Cincinnati, Dayton, Elyria, 
Green, Troy, Twinsburg, and Uniontown.
    We have actually been adding jobs in Ohio. Since January 
1997, our aerospace employment is up 14 percent. We remain 
committed to Ohio and to our workforce in Ohio. Following this 
merger, BFGoodrich will contribute more than $20 million per 
year in taxes to Ohio as part of its continuing presence in the 
State. As our company grows, we would hope to build on this 
significant employment base.
    Much has been said about the future of our Cleveland 
landing gear plant, Mr. Chairman. Let me be very clear about 
this. BFGoodrich management has made no decision about the 
future of this facility or any other landing gear facility. 
Having said that, I will tell you that the U.S. landing gear 
business is 15 percent below its peak volume, and customer 
demand is expected to remain low for the foreseeable future.
    In this business environment, a status quo cannot prevail. 
One of the attractions of the Coltec merger comes from 
combining the volume of the two firms and achieving more 
efficient capacity utilization. The added volume and financial 
strength will inure to the benefit of BFGoodrich and will allow 
more investment in its facilities.
    After the merger, we will look at our operations and 
determine how best to become a more efficient and lower-cost 
producer. This may include upgrading plants, reconfiguring our 
production mix, and perhaps closing facilities. The failure to 
make those hard decisions could cost us our competitive edge 
and even more jobs than if we ultimately decide to close a 
plant. But until the merger has closed, the planning cannot be 
done and no decisions have been taken.
    Our goals are the same, Mr. Chairman. We at BFGoodrich want 
to grow so that we can satisfy our customers, challenge, 
reward, and retain our employees, and provide financial returns 
for our shareholders. We can only achieve those goals by 
providing innovative, quality, least-cost products to our 
customers consistently and timely. By becoming a stronger 
competitor, we help the economy and our workforce.
    Mr. Chairman, let me tell you what BFGoodrich is committed 
to. We are committed to growing jobs and marketplace position. 
We are committed to sustaining a vigorous U.S. national defense 
position. We are committed to involving workers, shareholders, 
customers, management, and Government decisionmakers in our 
future business growth plans. Finally, we are committed to 
building and designing the best priced and best performing 
products for this or any other marketplace. We challenge 
AlliedSignal, Crane, Honeywell, or anyone else to come and 
compete with us fairly in the marketplace.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Linnert follows:]

               Prepared Statement of Terrence G. Linnert

    I am delighted to have the opportunity to appear before the 
Subcommittee to address the competitive implications of the merger 
between BFGoodrich and Coltec.
    Multibillion dollar mergers have become an almost daily occurrence. 
As this Subcommittee has no doubt heard before, technology and 
globalization fuel this consolidation. In addition, in the defense and 
aerospace industries, the end of the Cold War drives much of the 
consolidation. Defense spending reductions and the consolidation at the 
apex of the defense supply chain have placed ever greater demands on 
the component supplier community to become more efficient while at the 
same time increasing the risks of business. BFGoodrich is not here to 
complain about the difficulty of competing. Rather, BFGoodrich believes 
that the market forces of competition will determine the winners and 
the losers in these changing and challenging times. Mergers are an 
inevitable part of the restructuring of our industrial base. From the 
standpoint of competition policy, this is not a bad thing--most mergers 
are procompetitive or competitively neutral. Rigorous review by the 
regulatory agencies--here, the Department of Defense and the Federal 
Trade Commission--provide important reassurance that those mergers that 
may hurt competition do not go unchallenged. Our transaction has 
successfully undergone a review by both the Department of Defense and 
the Federal Trade Commission, and I can assure the Subcommittee that it 
was both rigorous and comprehensive. We welcome any inquiry the 
Subcommittee may have regarding the thoroughness of the work of the 
reviewing agencies.
    It is also a fact that mergers and consolidations may dislocate 
people and can result in the consolidation or relocation of some jobs. 
While that is not always the case, clearly the demands of a global and 
technologically advanced society require greater productivity and 
efficiency. At BFGoodrich, we approach this part of the merger business 
very carefully. Our work force is important to us and we recognize the 
contributions our employees make to our success. We are committed to 
providing opportunities to our employee community to grow within our 
organization. We do not approach layoffs or plant closings with zeal or 
happiness. When such actions are needed for the greater good, we take 
them reluctantly and only after due deliberation. It is ironic, then, 
that interest in the BFGoodrich/Coltec merger was fueled by 
AlliedSignal's false allegations that, in conjunction with the merger, 
BFGoodrich would close its Cleveland plant and eliminate 650 jobs. 
AlliedSignal announced earlier this week its planned $15 billion merger 
with Honeywell. As part of that merger, AlliedSignal plans to fire 
4,500 people to help it ``realize the efficiencies'' of its merger. We 
welcome any inquiry the Subcommittee may have regarding BFGoodrich's 
views on the important public policy issues associated with mergers and 
jobs.
    I have organized my written testimony in three sections: (1) the 
merger review process; (2) the competitive implications of the merger; 
and (3) the effect of the merger on U.S. jobs.
                       the merger review process
    BFGoodrich and Coltec agreed to merge in late November, 1998, and 
submitted the required H-S-R notifications in early December. Shortly 
thereafter, representatives of BFGoodrich met with representatives of 
the Department of Defense to discuss the proposed merger. Between 
December 1998 and March 1999, representatives of the parties to the 
merger met and spoke with representatives of the Department of Defense 
regularly. The parties provided extensive information about their 
businesses to the Department of Defense in response to a detailed 
questionnaire from the Department. The parties responded fully and 
completely to every question posed by the Department of Defense.
    We understand that representatives of Crane and AlliedSignal met 
with officials of the Department of Defense in multiple efforts to 
derail the merger. While we do not know the details of their arguments, 
we believe they raised many of the same competition concerns that have 
been presented in other forums. The Department of Defense carefully 
considered the arguments presented by all concerned; from time to time, 
we were asked by the Department of Defense to provide information 
responsive to Crane and AlliedSignal complaints, and we did. On March 
15, 1999, the Department of Defense notified the FTC and BFGoodrich 
that ``the Department will not object to the proposed acquisition of 
Coltec Industries by BFGoodrich.'' \1\
---------------------------------------------------------------------------
    \1\ Letter 3/15/99 from Jacques S. Gansler, Under Secretary of 
Defense, to Terrence G. Linnert.
---------------------------------------------------------------------------
    The FTC's Bureau of Competition conducted its own review parallel 
to that of the Department of Defense. While the Bureau of Competition 
conducted its investigation, AlliedSignal initiated private antitrust 
litigation in Indiana. With BFGoodrich's consent, AlliedSignal provided 
to the Bureau of Competition selected material it had obtained from 
BFGoodrich in discovery in the private lawsuit. BFGoodrich, at the 
request of the Bureau of Competition staff, provided the staff all of 
the discovery materials, including thousands of documents and pages of 
deposition testimony. The staff attorneys at the FTC diligently 
reviewed the material, evaluated the potential for anticompetitive 
effects, and concluded there were none.
    AlliedSignal and Crane were not satisfied with this outcome and 
insisted on meetings with the FTC commissioners. We are informed that 
AlliedSignal and Crane met with each commissioner and used evidence 
obtained in discovery in the private litigation in their effort to 
persuade the FTC to intervene. Not one commissioner concluded that the 
merger ought to be challenged. On April 26, 1999, the FTC advised 
BFGoodrich and Coltec that it had closed its investigation without 
taking any action.\2\
---------------------------------------------------------------------------
    \2\ April 26, 1999 letter from Richard G. Parker, Senior Deputy 
Director, Bureau of Competition, FTC, to Terrence G. Linnert.
---------------------------------------------------------------------------
    Over a five month period, two federal agencies, each charged with 
considering the competitive implications of mergers, have reviewed the 
BFGoodrich/Coltec merger and both have concluded that no further action 
was warranted. This is strong evidence that the merger will not have 
anticompetitive effects, particularly given the vigorous antitrust 
enforcement we have seen in this same time frame (Lockheed-Martin/
Northrop; General Dynamics/Newport News; Litton Industries/Newport 
News).
               the competitive implications of the merger
    The merger of BFGoodrich and Coltec is procompetitive. As a result 
of consolidation among aircraft manufacturers and a declining number of 
new aircraft program starts, business opportunities for landing gear 
structure manufacturers have diminished. The total number of aircraft 
produced declined from more than 900 per year in the early 1990's to a 
low of 416 in 1996. While production has picked up since 1996, it is 
not expected to exceed about 800 aircraft per year over the foreseeable 
future.
    The merged BFGoodrich/Coltec is likely to be better able to serve 
its customers in this environment. Significant cost savings are likely 
to result from the merger. These cost savings will enable BFGoodrich to 
offer savings to its customers, invest in more efficient equipment, and 
invest in additional landing gear projects.
    BFGoodrich presently competes with Messier-Dowty, a French firm, 
for landing gear. At Airbus, Messier-Dowty has won all the procurements 
in which BFGoodrich has competed. The merger will place BFGoodrich in a 
stronger position to compete for Airbus business.
    AlliedSignal contends that the merger will put BFGoodrich in a near 
monopoly position with regard to sales of landing gear. Nothing could 
be further from the truth. Our business is global and we compete with 
suppliers from around the world for business here and abroad. The 
following are among the landing gear manufacturers capable of providing 
main landing gear for large commercial aircraft: BFG/Coltec; Messier-
Dowty (a French firm); SHL (a subsidiary of Israeli Industries, which 
provides the landing gear for the Boeing 717); Heroux (a Canadian firm 
which provides landing gear for the C17); and Hydro-Mash (a Russian 
company). Several other firms presently manufacture nose gear for 
commercial aircraft and could increase capacity to supply main landing 
gear for large commercial aircraft. These companies include Liebherr, 
APPH, Sumitomo, and Castle Precision. Thus, after the merger, 
BFGoodrich would face competition from at least 8 firms that presently 
manufacture main and/or nose gear for commercial aircraft. These firms, 
and two others (EDE and Cessna) provide landing gear for regional, 
business and military aircraft.
    For several reasons, BFGoodrich cannot, and will not be able to, 
dictate terms to any aircraft manufacturer, or to unilaterally raise 
prices or to design landing gear in a way that disadvantages 
competitors' wheels and brakes and components. Whether the customer is 
Boeing or the Department of Defense or any other airframe manufacturer, 
the customer owns the data rights to the landing gear and to the 
interface between the landing gear and other system components. Indeed, 
on new programs, Boeing requires potential landing gear suppliers to 
jointly prepare the design of new landing gear at no cost to Boeing. 
Boeing then selects various suppliers to compete to produce the 
components and subsystems. If Boeing believes a supplier is not 
responsive or competitive, it can and will select another manufacturer. 
Moreover, many of the smaller landing gear components can be 
subcontracted. (BFGoodrich presently subcontracts 90 percent of its 
landing gear components.)
    BFGoodrich and AlliedSignal compete in the wheel and brake 
business, but nothing about this merger will enable BFGoodrich to 
discriminate against AlliedSignal's wheel and brake business. As noted 
above, the airframe manufacturer owns the data rights, and the wheel 
and brake manufacturer can obtain the necessary interface information 
from the airframe manufacturer. Airframe manufacturers actively promote 
multiple sources of wheels and brakes because it drives down the total, 
lifetime cost of aircraft.
    If this merger were likely to have anticompetitive effects, our 
customers would have objected. They have not. Our relationships with 
our customers are so important that, had they objected, we probably 
would not have gone forward with the merger. Indeed, prior to 
announcing the merger, my CEO, the President of BFG Aerospace and the 
CEO of Coltec met with the President and CEO of Boeing and we were 
advised that Boeing did not oppose the merger. We have also been told 
by Lockheed Martin and Bombardier that neither opposed the merger. As 
far as we know, no aircraft manufacturer has opposed this merger.
    I appear before the Subcommittee confident that this merger is good 
for competition and good for our customers. Those customers and the 
federal agencies charged with enforcing competition policy have agreed. 
I am confident that history will bear out those judgments.
                 the effect of the merger on u.s. jobs
    Following the merger, BFGoodrich will employ 27,000 people 
worldwide. The size and diversity, financial and technological strength 
and global reach of our businesses will create job stability and growth 
opportunities for our existing work force. The benefits and 
efficiencies in this merger, perhaps unlike others, are not centralized 
on employee reductions and layoffs. Rather, it is our hope that the 
merger will be a source of job growth as we realize the benefits of 
being more competitive both domestically and overseas.
    As part of the merger, approximately 170 headquarters positions 
will relocate from Ohio to North Carolina. This sort of headquarters 
consolidation and relocation is typical of mergers. There will be 4,500 
jobs lost as a result of the AlliedSignal/Honeywell merger, including 
1,000 due to Honeywell's relocation from Minnesota to New Jersey.
    I would like to address more specifically the Chair's concern about 
the merger's impact on Ohio jobs. In February, 1999, in response to an 
inquiry from the Department of Defense, BFGoodrich provided a 
preliminary, internal study that presented possible options for 
restructuring the landing gear business. Although each of the options 
presented by the study contemplated closing the Cleveland plant, 
BFGoodrich told the Department of Defense that ``its views concerning 
reconfiguration are necessarily tentative'' because it did not have 
cost information regarding any Coltec facilities.\3\
---------------------------------------------------------------------------
    \3\ February 3, 1999 letter to Kathy Brown, Senior Attorney, Office 
of General Counsel, Department of Defense from Tom D. Smith. There is 
absolutely no truth to allegations that BFGoodrich told the Department 
of Defense or the FTC that it would close the Cleveland plant.
---------------------------------------------------------------------------
    Let me be very clear about the future of our Cleveland landing gear 
plant: BFGoodrich management has made no decision about the future of 
this facility. Having said that, I must tell you that the U.S. landing 
gear business is 15 percent below its peak volume, and customer demand 
is expected to remain low for the next 10 years. In this business 
environment, status quo cannot prevail.
    After the merger, we will look at all of our operations and 
determine how best to become a more efficient and lower-cost producer. 
This may include upgrading plants, reconfiguring our production mix 
and, perhaps, closing facilities. The failure to make these hard 
decisions could cost us our competitive edge and even more jobs than if 
we ultimately decide to close a plant. Until the merger has closed, 
however, we do not have access to the information we need to make an 
intelligent decision and, as a consequence, no decisions have been 
taken.
    I promise you this--we will include all of our stakeholders in the 
process. We have already received a very appropriate and much 
appreciated invitation from Governor Taft of Ohio to consult with his 
office as we go forward in our planning and we have assured him that we 
will do so. Likewise, we will talk to the unions, other state, local 
and federal government officials as well as other interested groups to 
help us make the most informed and sound decision possible.
    Whatever decision is reached regarding any of our facilities, 
BFGoodrich remains committed to Ohio. Following the merger, BFGoodrich 
will employ more than 3,000 people in Ohio in management, manufacturing 
and research positions. Our Performance Materials business, with more 
than $1 billion in revenue, will remain headquartered in Brecksville. 
Other BFGoodrich operations in Ohio are located in Akron, Avon Lake, 
Chagrin Falls, Cleveland, Cincinnati, Columbus, Dayton, Elyria, Green, 
Troy, Twinsburg and Uniontown.
    We have been adding jobs in Ohio--since January 1997 we have added 
200 jobs to our aerospace work force in Ohio and aerospace employment 
is up 14 percent. We remain committed to Ohio and to our work force in 
Ohio. Following the merger, BFGoodrich will contribute more than $20 
million per year in taxes to Ohio as part of its continuing presence in 
the State.
    Our goals are the same as those of the Subcommittee. We at 
BFGoodrich want to grow so that we can satisfy our customers, 
challenge, reward and retain our employees, and provide financial 
returns for our stockholders. We can only achieve these goals by 
providing innovative, quality, least-cost products to our customers 
consistently and timely. By becoming a stronger competitor, we help the 
economy and the work force in Ohio and in the other states in which we 
have operations.

    Senator DeWine. Thank you very much.
    Mr. Montalbine.

                STATEMENT OF CARL R. MONTALBINE

    Mr. Montalbine. Thank you very much, Senator. It is a 
privilege to appear before you.
    I am Carl Montalbine, vice president and general manager of 
Aircraft Landing Systems, a business unit of AlliedSignal 
located in South Bend, IN. AlliedSignal's Aircraft Landing 
Systems division sells wheels and brakes, brake control 
systems, and integrated landing systems for commercial and U.S. 
military aircraft and employs approximately 1,400 people in its 
South Bend facility. I would like to thank Chairman DeWine and 
the subcommittee for inviting me to participate in the public 
debate of this issue.
    I have submitted written testimony, and I would like to 
take 5 minutes to discuss that testimony. At the outset, I 
would like to emphasize three points:
    One, the BFGoodrich/Coltec merger will have serious 
anticompetitive consequences.
    Two, Allied is not alone in concluding that the BFGoodrich 
merger is anticompetitive. Airlines, wheels and brakes 
manufacturers, and even U.S. military personnel at Hill Air 
Force Base concur.
    Three, the anticompetitive effects can be avoided by 
BFGoodrich selling its Cleveland Pneumatics landing gear 
business to Allied. This sale would ensure vigorous competition 
for landing systems, and AlliedSignal commits to you that it 
will keep jobs in Cleveland, and we will keep jobs there long 
term, not for just 2 years.
    To understand the negative effects of the merger, I have a 
diagram that illustrates how the merger will affect the 
industry's structure that you can see to your right. Goodrich, 
Coltec, and Messier control approximately 99 percent of the 
large commercial landing gear market. There are only three 
companies in the world--and they are shown on that chart--with 
the capabilities to design, manufacture, and test landing gear 
for commercial aircraft.
    Now, let me explain something. Previously, you just saw a 
chart that showed other landing gear companies--SHL, Liebherr 
Aerotechnic, AP Precision. Those are classified as the build-
to-print, mom-and-pop-shop-type operations. They do not really 
have the capability to design large commercial landing gears. 
And if you look at the record and you look at the programs they 
are on, it is obvious that that is the case as Cleveland 
Pneumatics and Menasco constitute almost 100 percent of Boeing 
landing gear content, and Messier-Dowty constitutes 100 percent 
of Airbus content. If SHL, Liebherr, and AP Precision were 
capable of designing gears of that size, where is their market 
share?
    Today, two of those three landing gear companies up there, 
Goodrich and Messier, also have their own wheel and brake 
operations. That leaves the third company, Coltec, as the only 
viable landing gear partner for AlliedSignal. AlliedSignal's 
experience in the past has been that if Coltec is not willing 
to cooperate with AlliedSignal on a particular program, 
AlliedSignal has no other viable partner with which to team in 
order to be a systems integrator for future aircraft programs.
    A good example of that was the Dornier 728. When Menasco 
decided it didn't want to participate, we tried to team with 
Liebherr Aerotechnic, and they were not capable of doing the 
design work that was required, and that deal fell through.
    In short, after the merger, only Goodrich and Messier will 
have access to landing gear needed to compete, and Messier is 
owned by a French firm controlled by the French Government. 
With that background, let me emphasize three points.
    The first point I want to emphasize is that AlliedSignal 
will be harmed by this merger. The combined BFGoodrich landing 
gear business will result in a U.S. monopoly for landing gear 
with overwhelming market power to harm Allied and others by 
vertically foreclosing or gaming Allied and raising Allied 
prices for landing gear.
    In terms of vertical foreclosure, landing gear is similar 
to Windows 95 operating system, and the wheels and brakes are 
like the browser. The browser, a wheel and brake company, must 
get the technical information from the operating system. 
BFGoodrich and Coltec will control the landing gear information 
necessary for Allied to understand the interface and to 
compete. Based on Allied's experience, BFGoodrich will have 
every incentive to game the information provided to Allied.
    In terms of price increases, BFGoodrich will also control 
the supply of landing gear that Allied needs to compete with 
BFG as a landing systems integrator. Allied purchases landing 
gear on projects such as the Joint Strike Fighter. BFGoodrich, 
who is competing with Allied on the Joint Strike Fighter, will 
have no incentive to sell landing gear to Allied at fair 
prices, if at all.
    The second point I want to emphasize is that these 
anticompetitive effects are recognized by numerous parties who 
know landing systems. Airlines, who are the customers for 
wheels and brakes, oppose this merger. SAS, AirTran, United, 
Northwest, American, Air New Zealand, and others have all 
indicated anticompetitive concerns. Significantly, not a single 
airline supports this merger as pro-competitive. Besides 
Allied, the other two major independent wheel and brake 
manufacturers in the world oppose this merger. ABSC, based in 
Akron, also opposes this merger, and I urge the committee to 
review the sworn affidavit of Mr. Ron Welsch, president of 
ABSC, which is attached to this written testimony. In addition, 
Dunlop Aviation, based in Coventry, England, also opposes this 
merger.
    The third and final point I would like to emphasize is that 
all of these problems can be avoided. According to published 
reports, BFGoodrich and Coltec will consolidate their landing 
gear facilities and will close the Cleveland business. Indeed, 
according to today's papers, BFGoodrich even told the 
Department of Defense that it planned to close Cleveland. The 
fact that BFGoodrich would prefer to close Cleveland rather 
than sell Cleveland to AlliedSignal only confirms the high 
value BFGoodrich places on being a monopolist in landing gear. 
BFGoodrich would prefer to spend money to mothball a business 
rather than receive money from Allied.
    I want to emphasize AlliedSignal's long-term commitment to 
the Cleveland landing gear business, again, not just for 1 or 2 
years. Senator, Allied, is committed to purchase Cleveland, 
keep Cleveland open, invest in Cleveland, and use Cleveland to 
compete vigorously. We promise to be a strong competitor.
    Thank you for your time.
    [The prepared statement of Mr. Montalbine follows:]

                Prepared Statement of Carl R. Montalbine

    I would like to thank Chairman DeWine and the subcommittee for 
giving me the opportunity to speak today.
    I am Carl Montalbine, vice president and general manager of 
Aircraft Landing Systems, a business unit of AlliedSignal located in 
South Bend, Indiana. AlliedSignal's Aircraft Landing Systems division 
sells wheels and brakes, brake control systems, and integrated landing 
systems for commercial and U.S. military aircraft and employs 
approximately 1,400 people at its South Bend facility. I am the senior 
executive for the entire AlliedSignal Aircraft Landing Systems business 
unit in South Bend and have ultimate responsibility for the profit and 
loss statement of the business unit.
                                overview
    BFGoodrich (``Goodrich'') and Coltec have announced a merger that 
will result in a single U.S. landing gear manufacturer (and one of only 
2 worldwide). A federal court in Indiana has preliminary enjoined the 
merger based on a finding that ``the merger would likely result in a 
U.S. monopoly for the sale of landing gear that would result in higher 
prices for such gears,'' and the Ohio Attorney General is also 
investigating the transaction. Moreover, according to published 
reports, Goodrich may close its landing gear operations in Cleveland 
after the merger.
    There is a simple solution to the anti-competitive effects of the 
Goodrich/Coltec merger. AlliedSignal has stated on more than one 
occasion that it is willing to purchase the Cleveland landing gear 
business--that is slated to be closed after the merger anyway--from 
Goodrich. AlliedSignal has further stated that it would invest 
significantly to modernize those operations so as to not only maintain, 
but increase, competition in the United States landing gear market. 
Moreover, AlliedSignal has publicly stated that it has every intention 
of maintaining the high-paying union jobs at the Cleveland landing gear 
business if it is sold to AlliedSignal.
                          personal background
    My background is in engineering. I have a Bachelor of Science 
degree in aeronautical engineering from the University of Cincinnati 
and a Masters degree in mechanical systems and applied mechanics from 
the Polytechnic Institute of New York. Before coming to AlliedSignal, I 
was in charge of systems engineering on the Northrop B-2 bomber. I was 
specifically hired by AlliedSignal to bring my expertise in systems 
integration to the company to help work on future bids for landing gear 
systems integration. At AlliedSignal, prior to holding my current 
position, I was director of engineering at AlliedSignal and manager of 
landing systems at AlliedSignal. Through these various positions, I 
have experience providing integrated landing systems, designing and 
manufacturing wheels and brakes, designing and manufacturing brake 
control systems, and, before AlliedSignal sold its landing gear 
business to Coltec in 1995, designing and manufacturing landing gear.
        alliedsignal's opposition to the goodrich/coltec merger
    As I already indicated, AlliedSignal opposes the merger and there 
is ongoing litigation with respect to this merger. Because of a 
protective order in the litigation, I personally have not reviewed the 
numerous documents produced by Goodrich, Coltec, and third parties 
during the course of the case. Nor have I had the opportunity to review 
the deposition testimony of various Goodrich, Coltec, and third party 
witnesses. My testimony therefore reflects what I know of the public 
statements that have been made with respect to the merger and 
AlliedSignal's experience and knowledge with respect to the landing 
gear, wheels and brakes, and integrated landing systems businesses.
    At the outset, it should be noted that AlliedSignal generally does 
not oppose mergers. AlliedSignal itself has been--and will continue to 
be--a company that seeks out merger opportunities to improve its 
competitiveness in the markets in which it competes. AlliedSignal 
almost never opposes mergers among its suppliers, customers, and 
competitors. Nor does AlliedSignal oppose the combination of Goodrich's 
and Coltec's aerospace businesses unrelated to landing gear systems, 
even though AlliedSignal competes with Goodrich and Coltec in these 
other aerospace lines of business. If AlliedSignal's opposition simply 
represented the complaints of a ``whining competitor''--as Goodrich and 
Coltec have suggested--then AlliedSignal would have challenged many 
aspects of the merger--which it has not.
    Instead, AlliedSignal's opposition to the merger has focused on the 
particular anticompetitive effects of the combination of Goodrich's and 
Coltec's landing gear businesses. There are only three companies in the 
world today capable of designing, developing, and manufacturing landing 
gear for large commercial aircraft, larger regional jets, and U.S. 
military aircraft: Goodrich, Coltec, and a French company, Messier-
Dowty. Goodrich and Coltec are the only two domestic suppliers. 
AlliedSignal believes that the merger of these two companies' landing 
gear operations--which would create a worldwide duopoly and a domestic 
monopoly--will have particularly adverse effects upon competition, not 
only in terms of sales of landing gear, but also in terms of sales of 
wheels and brakes (which must interface with the landing gear) and 
integrated landing systems (which requires access to a supply of 
landing gear).
        other wheel and brake suppliers agree with alliedsignal
    AlliedSignal is not alone in this view. There are five prominent 
wheels and brakes suppliers in the world: AlliedSignal, Aircraft 
Braking Systems (ABS), Dunlop, Goodrich, and Messier-Bugatti. Two of 
these companies--Goodrich and Messier-Bugatti--are affiliated with the 
two remaining landing gear companies. The other three companies oppose 
this merger:

   ABS submitted an affidavit in the litigation stating that 
        the ``post-merger Goodrich entity can be expected to exert 
        leverage by its landing gear market concentration to benefit 
        its Goodrich wheel and brake business'' and that the merger 
        will ``lessen competition in the integrated landing system, 
        landing gear, and wheel and brake markets.'' Tab A.
   Similarly, Dunlop submitted an affidavit in the litigation 
        stating that the merger will lessen competition in these 
        markets. Tab B.

    In short, every wheel and brake supplier not affiliated to one of 
the two remaining landing gear suppliers recognizes the anticompetitive 
effects of the merger.
   defense department personnel who know landing gear agree that the 
                   proposed merger is anticompetitive
    After the merger, the Defense Department will have only one 
domestic supplier of aircraft landing systems for its fighter, bomber, 
attack, and cargo aircraft. Although the Defense Department has not 
formally come out in favor of or opposition to the merger (wrongly, in 
my opinion), key procurement personnel within the Defense Department at 
Hill Air Force Base--the base responsible for landing gear sustainment 
on AirForce aircraft--have expressed their opposition to the merger. 
John Hamlen, for example, notes that several discussions have occurred 
at Hill Air Force Base among personnel in which concerns have been 
raised about the merger. Tab C. Frank Zuech similarly notes that these 
concerns have revolved around the merger limiting the Air Force's 
sources of landing gear and wheels and brakes and the possibility for 
higher prices. Tab D. And John King wrote a memo in January 1999 
outlining the Hill Air Force Base landing gear engineering group's 
collective concerns with the merger, noting that the merger could 
``adversely affect technical data availability, product support, and 
technical capability for future designs,'' that Goodrich after the 
merger would be like a ``non-regulated monopoly,'' that Goodrich could 
``leverage their control of the gear into control of wheels, brakes, 
and brake controls,'' and that Air Force personnel ``simply don't want 
to put all of our eggs in one basket.'' Tab E.
                    airlines agree with alliedsignal
    Significantly, airlines--including major U.S. carriers--also agree 
with these Defense Department personnel and AlliedSignal. Ed Doty of 
Scandinavian Airlines, who is involved in wheel and brake issues for 
eight different major airlines through the Star Alliance, believes that 
aftermarket wheel and brakes prices will rise and that Goodrich could 
leverage its control over landing gear to obtain sole source positions 
on future aircraft programs, adversely affecting airlines. Tab F. 
AirTran similarly believes that the merger will result in higher 
landing gear prices, that ``Boeing will pass any additional cost of 
landing gear resulting from the merger on to customers,'' and that the 
merger will have a ``negative impact on our ability to purchase wheels 
and brakes at a competitive price.'' Tab G. I also am told that 
personnel from United Airlines and Northwest Airlines have testified, 
but, because of the protective order, I have not seen their testimony. 
I am not aware of a single airline that has come out in favor of the 
merger.
                     background on landing systems
    An aircraft landing system consists of three key components: (1) 
the landing gear structure (or ``landing gear''), which absorbs the 
shock of an aircraft's landing; (2) the wheels and brakes (which are 
typically sold as a package and apply the friction to slow the aircraft 
upon landing); and (3) the brake control system, which allows the pilot 
to operate and control the rest of the landing system.
    AlliedSignal Aircraft Landing Systems's primary business focus 
among these three components is selling wheels and brakes. AlliedSignal 
Aircraft Landing Systems has designed, developed, and manufactured 
wheels and brakes for numerous commercial and military aircraft. On the 
military side, AlliedSignal makes the wheels and brakes for the F-22, 
F-18 E/F, and F-15 fighter and attack aircraft, the C-17 cargo 
transport aircraft, and the B-2 bomber. On the commercial side, 
AlliedSignal sells wheels and brakes for numerous Boeing and Airbus 
commercial aircraft, including the Boeing 717, Boeing 777, Boeing 767, 
Boeing 737, Airbus 330/340, and Airbus 319/320. AlliedSignal also has 
provided the wheels and brakes for the X-33, the prototype vehicle for 
the next generation Space Shuttle. In addition to this wheels and 
brakes business, AlliedSignal has a smaller brake control systems 
business and is providing brake controls for the F-22 fighter.
    Prior to 1995, AlliedSignal also had a niche landing gear business, 
primarily focused on designing and manufacturing the smaller landing 
gear used in U.S. military aircraft. AlliedSignal, for example, 
designed and manufactured the F-18 E/F landing gear. In 1995, 
AlliedSignal sold its landing gear business to Coltec and therefore 
today does not compete with Coltec and Goodrich in the sale of landing 
gear. The reason for this sale was the need to compete for integrated 
landing systems, a subject to which I turn next.
                          systems integration
    The design and development of the interfaces between the three key 
landing gear components is often referred to as ``systems 
integration.'' The task of integrating the landing system can be 
performed by either the airframe manufacturer or by an outside systems 
integrator. Systems integration typically involves performing the up-
front engineering work required to define the requirements for the 
landing gear system itself, including the structure, wheels and brakes, 
and brake control system.
    Historically, the airframe manufacturer--i.e., Boeing, Lockheed-
Martin, Bombardier, Northrop Grumman--performed the landing gear 
systems integration function themselves. Increasingly today, airframe 
manufacturers look to outside systems integrators to perform the 
systems integration on landing gear systems for new aircraft. 
Integrated systems bids are now the standard procedure for aircraft 
procured by the U.S. military as well as several major aircraft 
manufacturers. The reason is that outsourcing systems integration can 
lower costs and improve overall system design.
    Several years ago, AlliedSignal recognized this trend toward 
outsourcing systems integration and realized that in order to compete 
for future aircraft landing system programs, the company would need to 
be a systems integrator. To compete as a systems integrator, 
AlliedSignal would need access to landing gear (so as to have landing 
gear to integrate with the rest of the landing gear system). In 
particular, AlliedSignal needed access to landing gear from a company 
that could design and manufacture landing gear for larger aircraft such 
as Boeing and Airbus aircraft. AlliedSignal had two choices. It could 
undertake the massive investment in equipment and resources needed to 
upgrade its small landing gear operations and enter the business of 
supplying landing gear for larger aircraft. That did not make economic 
sense. Or it could acquire or ally itself with such a landing gear 
supplier. As I have noted, there were only three companies that had the 
ability to design and manufacture landing gear for such aircraft: the 
two merging parties, Goodrich and Coltec, and a French company, 
Messier-Dowty. Goodrich and Messier each had their own wheels and 
brakes business units that compete with AlliedSignal and therefore 
would have little incentive to cooperate with AlliedSignal. Hence, 
AlliedSignal turned to Coltec.
    In 1995, AlliedSignal and Coltec entered into a Strategic Alliance 
Agreement to compete for the sale of integrated landing systems. As 
part of this Strategic Alliance, Coltec insisted that AlliedSignal sell 
its small, landing gear business to it, so that Coltec would not be 
partnered with a competitor in the landing gear business. AlliedSignal 
agreed to this sale as part of an overall transaction that would 
provide the company access to landing gear for the sale of integrated 
landing systems. Under the Strategic Alliance Agreement with Coltec, 
AlliedSignal has submitted joint bids with Coltec for integrated 
landing systems on the Canadair Regional Jet, the Bombardier Dash 8-
400, the Joint Strike Fighter, and the X-33 project (the next 
generation Space Shuttle). The joint bids for the Joint Strike Fighter 
and X-33 were accepted and AlliedSignal and Coltec are currently 
working together on these projects, with AlliedSignal providing the 
wheels and brakes and overall systems integration, and Coltec providing 
the landing gear.
    It is my understanding that BFG and Coltec now argue there is no 
market for integrated landing systems. Their own conduct belies this 
argument. Coltec teamed with AlliedSignal under the Strategic Alliance 
specifically to sell integrated landing systems. Coltec and 
AlliedSignal today continue to work on integrated landing systems bids 
for future programs. BFG meanwhile has been as active as any company in 
bidding on programs involving systems integration. The reality is that 
there are numerous integrated systems bids upcoming or in the planning 
stages including the Joint Strike Fighter, Embraer 170, Embraer 190, 
the next generation Space Shuttle, the Lockheed-Martin Aerocraft, the 
Bombardier 90 seat regional jet, the Airbus A3XX, the Boeing New Small 
Aircraft, and the Boeing Large Aircraft Product Development. Not only 
is there a integrated systems market, but the vast majority of upcoming 
aircraft programs will likely involve integrated systems.
                  industry structure after the merger
    Tab H gives an overview of how the merger will affect industry 
structure. Today, two of three landing gear companies, Goodrich and 
Messier, have their own wheels and brakes operations. That leaves the 
third company, Coltec, as the only viable partner for AlliedSignal. 
AlliedSignal's experience is that if Coltec is not willing to cooperate 
with AlliedSignal on a particular program, AlliedSignal has no other 
viable partner with which to team in order to be a systems integrator 
for future wide-body, narrow-body, large regional jet, and U.S. 
military programs. After the merger, Coltec will no longer exist, 
meaning that AlliedSignal would no longer be able to purchase landing 
gear on reasonable terms and conditions in order to compete as a 
systems integrator. While prior to the merger, four companies--
Goodrich, Messier, Coltec, and AlliedSignal--could compete to supply 
integrated landing systems, after the merger only Goodrich and Messier 
would have access to the landing gear needed to compete. The merger not 
only would harm AlliedSignal as a buyer of landing gear and a 
competitor in the integrated landing systems market, it will harm 
competition for landing gear and integrated landing systems generally.
     the goodrich/coltec merger will greatly diminish landing gear 
                              competition
    It is my understanding that Goodrich and Coltec have suggested that 
the merger will not reduce landing gear competition because there are 
supposedly numerous other potential landing gear suppliers. That simply 
is not true. Developing landing gear for future aircraft requires 
specialized equipment and skills that only Goodrich, Coltec, and 
Messier-Dowty have.
    To supply a newly designed landing gear for future aircraft models, 
a company must be able to design, test and manufacture landing gear 
structures.
                         designing landing gear
    To design a landing gear, a company must have expertise in such 
areas as the load and stress placed upon a landing gear when an 
aircraft lands. Specialized analytical approaches are used in designing 
landing gear to account for these issues that involve interpreting the 
results from proprietary software. The ability to interpret and 
understand the results of this analysis requires considerable know-how 
that is a function of the experience of the personnel involved. The 
difficulty of this analysis significantly increases for larger landing 
gear and for landing gear used in the specialized circumstances of U.S. 
military aircraft.
                          testing landing gear
    Suppliers of new landing gear also must have the capability to 
perform drop tests, structural tests, and fatigue tests. Testing 
requires not only access to specialized equipment, but also personnel 
experienced in interpreting test results.
                       manufacturing landing gear
    Finally, suppliers of new landing gear must have the equipment to 
manufacture landing gear. Manufacturing landing gear requires large, 
specialized machine tools that are used to machine forgings. While some 
machining can be outsourced, only Goodrich, Coltec, and Messier-Dowty 
have the equipment to perform certain necessary machining to produce 
landing gear for larger aircraft, particularly wide-body aircraft.
        build-to-print shops do not have all these capabilities
    While only Goodrich, Coltec, and Messier-Dowty have these design, 
testing, and machining capabilities, it is my understanding that 
Goodrich and Coltec point to the existence of other ``mom and pop'' 
operations as evidence of other competition. There are ``build to 
print'' companies that have the capability (to varying degrees) to 
manufacture landing gear for aircraft up to a certain size, but none 
are credible competitors to undertake the entire task of designing, 
testing, and qualifying new landing gear on future aircraft models of 
these types. Not only do these companies not have these capabilities 
today, it would be very difficult for current ``build-to-print'' shops 
to develop these capabilities. As I have noted, AlliedSignal itself 
considered developing these capabilities before entering into the 
Strategic Alliance in 1995. AlliedSignal determined that it would cost 
about $150 million to do so and that it would take years to develop the 
engineering skills and reputation necessary to obtain an adequate 
return on the investment. For that reason, AlliedSignal decided it was 
not viable to upgrade from being a small landing gear provider to a 
company that could provide landing gear on larger aircraft. Because 
AlliedSignal already had engineers with designing and testing skills 
and know-how for U.S. military aircraft, AlliedSignal in 1995 was 
better positioned to become a major landing gear supplier (such as 
Messier-Dowty, Coltec, and Goodrich) than are build-to-print shops that 
operate today.
                          difficulty of entry
    It is my understanding that Goodrich and Coltec also have suggested 
that entry into the landing gear business is not difficult. That is 
wrong. As I just discussed, AlliedSignal contemplated upgrading its 
operations a few years ago and found that it was not possible on any 
reasonable economic basis. There are several reasons. There is a long 
lead time to acquire the necessary equipment and the equipment is very 
expensive. A company also would have to develop a team of engineers 
with sufficient know-how and experience to design, test, and 
manufacture the landing gear. It should be emphasized that it is not 
just a matter of hiring a few engineers, but rather a team of engineers 
with skills in design, structural analysis, and testing along with 
specific knowledge of chip cutting, plating, heat treating, and 
assembly. A potential entrant also would have to obtain proprietary 
design materials. Finally, a company would have to develop a reputation 
as a credible supplier of landing gear for new aircraft.
          harm to competition in the wheels and brakes market
    After the merger, the two remaining landing gear suppliers--
Goodrich and Messier--will each have their own wheels and brakes 
business units. Each company will have an incentive to design landing 
gear and distort the bidding process in a way that favors its own 
wheels and brakes operations. The result will be harm to competition 
and harm to AlliedSignal and other wheels and brakes suppliers.
                     how wheels and brakes are sold
    The sale of wheels and brakes to airline operators--i.e., airline 
passenger companies and companies such as Federal Express and UPS--
involves large up-front investments that are recouped over the life of 
the aircraft. These up-front investments come basically in two forms. 
First, in order to become ``certified'' as a wheel and brake supplier 
for a particular aircraft (a prerequisite for being able to sell wheels 
and brakes), a wheel and brake supplier typically will offer to invest 
significant amounts in designing and developing wheels and brakes for a 
new aircraft model along with perhaps making direct payments to the 
airframe manufacturer. This up-front investment will usually involve 
millions of dollars. Second, once certified, a wheel and brake supplier 
often will have to provide up-front inducements to airline operators 
(typically, free wheels and brakes on the initial aircraft sale plus 
some additional free spares) in order to persuade them to use the 
company's wheels and brakes. Again, these inducements will usually 
involve providing millions of dollars in free equipment.
    To recover these investments, a wheel and brake supplier expects to 
sell replacement wheels and brakes over the life of the aircraft. 
(After a certain number of landings, an aircraft's wheels and brakes 
must be overhauled and a wheel and brake supplier provides the 
replacement equipment.) A wheel and brake supplier usually will enter 
into a long-term agreement with an airline operator to provide wheels 
and brakes replacements for some period of time (such as ten years) in 
exchange for the up-front investment in free equipment. AlliedSignal 
recoups its up-front investments with sales of replacement wheels and 
brakes over the life of the aircraft.
       potential disadvantages that can be imposed on competitors
    Obviously, the more a company must invest initially in designing 
wheels and brakes for a new aircraft model and becoming certified, the 
less likely it is a company will be cost competitive or find it 
attractive to invest in a particular aircraft program. Therefore, a 
company that can raise a competitor wheel and brake supplier's initial 
costs can achieve a competitive advantage.
    It also is important to be one of the wheel and brake suppliers 
initially certified for an aircraft model. Once major airline operators 
have chosen a particular wheel and brake supplier for their initial 
purchases of a particular aircraft model, it is unusual for the airline 
operator to switch to another supplier because of the high costs of 
retrofitting an existing fleet. As a result, if a wheel and brake 
supplier is not initially certified, it will find a dwindling pool of 
potential customers available to which wheels and brakes can be sold to 
offset the initial up-front investment in the program. Hence, if a 
wheel and brake supplier can delay the certification of a competitor 
wheel and brake supplier, it will obtain a competitive advantage.
    Finally, with a sufficiently attractive offer, an airframe 
manufacturer may be willing to ``sole source'' wheels and brakes for a 
particular aircraft, meaning only one wheel and brake supplier will be 
allowed to sell wheels and brakes for a particular aircraft model. 
Hence, it is conceivable that a company that has leverage with respect 
to landing gear can offer not to charge monopoly prices for landing 
gear in exchange for a sole source position as a wheels and brakes 
supplier. Because the airframe manufacturer itself pays directly for 
landing gear while airline operators pay for wheels and brakes in the 
aftermarket, an airframe manufacturer may find such an offer 
attractive.
                      landing gear design process
    The Goodrich/Coltec merger will give Goodrich the opportunity to 
exploit its dominance over the landing gear marketplace to favor its 
own wheels and brakes operation. In particular, Goodrich can exploit 
its control over the landing gear design process. The landing gear 
usually is the first component designed. Once the landing gear is 
designed, the brake control system and then the wheels and brakes are 
designed to fit the specifications and interfaces created by the 
landing gear design. In order to work properly, an aircraft's wheels 
and brakes must have a proper interface with the landing gear.
    Obtaining timely information about the proposed landing gear design 
and its interface with wheels and brakes is crucial to being a cost-
effective producer of wheels and brakes. Early knowledge of technical 
factors such as the load sizes of a landing gear, the torque take out, 
and other general information about the materials, weight, and type of 
wheel and brakes desired can avoid the unnecessary costs that might 
result from developing wheels and brakes based on incomplete 
information or from having to rush to complete the design work because 
the information was not received in a timely fashion.
                     ``gaming'' the design process
    There is little doubt that the landing gear design process can be 
used to impose higher costs upon wheels and brakes suppliers not 
affiliated with the landing gear suppliers. As an example of such 
potential ``gaming,'' a landing gear systems integrator might announce 
restrictions for a wheel and brake design that seemingly pose costly 
technical challenges without informing other parties that other aspects 
of the design will compensate for the restrictions. A wheels and brakes 
designer without complete information in that situation might invest in 
unnecessary and costly research to meet the challenge. The landing gear 
also can be designed in ways that favor the landing gear company's own 
wheel and brakes division. For example, the vibrations of a wheel and 
brake must, accommodate or fit the frequency of the vibration of 
landing gear structure when an aircraft lands. A landing gear designer 
can tune the frequency of the landing gear so as to disadvantage a 
competitor's wheels and brakes. Similarly, a landing gear designer can 
change the way in which an axle is mounted or the spacing of a bearing 
so as to disadvantage a competitor's off-the-shelf products. Or the 
landing gear designer may tune the landing gear specifically to 
compensate for the oscillations of its own wheels and brakes, while 
forcing other wheels and brakes competitors to modify the oscillations 
of their own wheels and brakes to meet the landing gear design.
                      gaming has already happened
    It is my understanding that Goodrich and Coltec have argued that 
such gaming is not possible. But AlliedSignal itself already has 
experienced such gaming. The French firm Messier--which consists of 
Messier-Dowty (which supplies landing gear) and Messier-Bugatti (which 
supplies wheels and brakes)--supplies virtually all landing gear 
components and systems for Airbus. Messier-Dowty obviously has an 
incentive to promote and favor inclusion of Messier-Bugatti's wheels 
and brakes on Airbus programs. AlliedSignal has faced significant 
hurdles getting certified as a wheels and brake supplier on Airbus 
airplanes for such reasons. For example, AlliedSignal has been trying 
for months to obtain more information from Messier-Dowty on the 
upcoming A340-600 landing gear design, but Messier-Dowty has refused to 
provide it. (The attached Tab I is an AlliedSignal letter complaining 
about this problem.) On earlier versions of the A340, Messier designed 
the landing gear in ways that disfavored AlliedSignal's wheel and 
brakes and gave AlliedSignal the wrong specifications for the interface 
between its brake control system and the wheels and brakes, causing 
substantial problems that resulted in AlliedSignal incurring additional 
costs. And on the A319-320, several airlines requested that 
AlliedSignal's wheels and brakes be certified and AlliedSignal signed 
contracts with the airlines to deliver wheels and brakes on future 
aircraft (after being told by Airbus that AlliedSignal would be 
certified). After signing these contracts, Airbus then moved very 
slowly in certifying AlliedSignal's wheels and brakes in order to 
protect Messier-Dowty's position. AlliedSignal has suffered hundreds of 
thousands of dollars of financial penalties under these contracts 
because it was not certified in a timely fashion.
    After the merger, Goodrich will be the primary (if not only) 
supplier of landing gear to U.S. airframe manufacturers. With the 
reduction in landing gear competition, AlliedSignal expects to see the 
same type of gaming with future aircraft development programs that it 
has experienced at Airbus with Messier. Moreover, AlliedSignal also 
expects that Goodrich will try to leverage its dominance over landing 
gear into sole source positions on future aircraft programs.
                       harm to airline operators
    Such behavior will not only harm AlliedSignal but also airline 
operators. By driving up competitors' costs and either obtaining sole 
source positions or delaying certification of competitors, Goodrich 
will be able to reduce customer choice, raise wheels and brakes prices, 
and reduce the amount competitors are willing to offer airline 
operators to attract business. These results are harmful to airline 
operators. In addition, AlliedSignal invests millions of dollars each 
year in research and development of wheels and brakes. As a result, 
AlliedSignal competes not only in terms of price, but also quality, 
innovation, and service. If the merger results in AlliedSignal being 
excluded from future competitions or having its costs artificially 
raised, the result will not only be higher prices for wheels and 
brakes, but also reduced quality, innovation, and service. The merger 
also may make it difficult to justify maintaining current levels of 
research and development spending or to expand or even retain the 
personnel now used to provide systems bids and perform research and 
development.
                lockheed martin joint strike fighter bid
    When the Defense Department originally reviewed the Goodrich/Coltec 
merger, it was unclear whether Lockheed Martin's Joint Strike Fighter 
bid would be an integrated systems bid. Now, it is clear that it will 
be. Absent the merger, the two most important bidders would have been 
Goodrich and Coltec/AlliedSignal. The merger would remove the benefits 
of this competition, to the detriment of AlliedSignal and taxpayers as 
well.
 sale of goodrich's landing gear business to alliedsignal would solve 
                              the problem
    As I noted at the outset, I believe there is an easy resolution to 
the competitive problems posed by the merger. AlliedSignal has offered 
to buy Goodrich's landing gear business (the former Cleveland Pneumatic 
Company). If AlliedSignal acquires Goodrich's landing gear business, it 
will invest in the company and aggressively compete for new business in 
the landing gear market. Such an acquisition would preserve competition 
in the marketplace and preserve any job losses that might occur due to 
any consolidation of Coltec's and Goodrich's operations. I therefore 
believe the sale of Goodrich's landing gear operations to AlliedSignal 
is a reasonable pro-competitive resolution of this dispute that would 
still allow the rest of the Goodrich/Coltec merger to go forward.
                               conclusion
    I believe the evidence will be compelling that the Goodrich/Coltec 
merger is anticompetitive. A federal judge has already decided that 
such a conclusion can be reached. Other wheels and brake suppliers, 
Defense Department personnel, and airlines agree that the merger is 
anticompetitive. By contrast, while some companies have apparently 
decided not to get involved and therefore have chosen not to oppose the 
merger, I am not aware of any supplier, customer, or competitor of 
Goodrich and Coltec that has actually stated its support for the 
merger.
    Thank you again for giving me the time today to present testimony 
on this important subject.
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    Senator DeWine. Thank you very much.
    Mr. Oliver.

                  STATEMENT OF DAVID R. OLIVER

    Mr. Oliver. Senator, I appreciate this opportunity. I have 
submitted my comments for the record. Let me summarize the key 
points.
    In the Defense Department, we have two key issues, I think, 
in looking at each of these mergers to advise FTC and Justice, 
one of which is the security issue, and the second is with 
respect to whether or not we think there will be sufficient 
competition to keep the prices down and the technology 
advancing.
    With respect to security, in this area when we looked at 
it, we said the French company, whose facilities are really in 
Canada and the United Kingdom, we found was already the 
producer of choice for the F-18 C and D for the Navy, for the 
Harrier for the Marine Corps, and for the Air Force's F-22. In 
addition, they have many of the contracts for our newer 
airplanes. And so it was our conclusion, after we had talked to 
the services and also to the manufacturers who were using them, 
that they did not feel that there was a security issue, and we 
did not either.
    The second issue has to do with competition and the 
question is: What is the competition? And that is a difficult 
question because it depends on the industry and it depends on 
the situation. It depends upon what kind of technology you are 
involved in, and I don't pretend that is an easy question. And 
we wrestled with that for some time and took a great deal of 
data.
    What we came to the conclusion was that in this case the 
market would be almost evenly divided between the two 
competitors that would be left and that they were vigorous 
competitors and that since only 15 percent of this is the 
military and 85 percent of it is commercial, then you have the 
large commercial companies riding herd on them, plus the 
airlines, all of which--and the after-market issue, all of whom 
are actually less subject than we are to the niceties of 
ensuring that the companies behave in a competitive manner. So 
it was our conclusion that it was not a security problem and 
that you had a competitive environment.
    That is my discussion, sir.
    [The prepared statement of Mr. Oliver follows:]

                  Prepared Statement of Dave R. Oliver

                              introduction
    Mr. Chairman and distinguished members of the Committee, thank you 
for this opportunity to present the views of the Department of Defense 
(DOD) on our process for reviewing mergers in the defense industry and 
the application of that process to BFGoodrich's proposed acquisition of 
Coltec Industries. DOD has generally supported the process of 
consolidation in the defense industry to reduce excess capacity and 
overhead, the cost of which are ultimately charged to DOD contracts, 
raising the cost of the systems we buy. Throughout this process, 
however, we have reviewed various transactions in the defense industry 
carefully and thoroughly to ensure that we maintain competition for our 
current and future programs. In my remarks today, I will describe, 
first, the process by which the Department of Defense reviews 
transactions, and second, the application of that process to 
BFGoodrich's acquisition of Coltec, which led to our conclusion that 
the proposed merger would not create unacceptable adverse competitive 
implications on DOD acquisition programs.
          dod's response to proposed mergers and acquisitions
    In 1993, the Department asked the Defense Science Board, an 
independent advisory body to DOD of distinguished defense experts, 
business leaders, and academics, to form a Task Force on Antitrust 
Aspects of Defense Industry Consolidation to advise DOD on the role it 
should play in the antitrust review process. In its April 1994 report, 
the Task Force concluded, among other things, that due to the nature of 
DOD's role in defense industry procurements, DOD has an important stake 
in the antitrust review and special expertise that is critical to the 
analysis of industry transactions.
    The Task Force recommended that DOD review proposed transactions 
and advise the enforcement agencies of facts, concerns, and views 
relevant to the antitrust analysis, and that the enforcement agencies 
likewise notify DOD of any knowledge they possess that would be 
valuable to DOD's review.
       dod's role in reviewing proposed mergers and acquisitions
    The Department facilitates the merger investigation by the 
antitrust agencies. and develops its own judgment about the proposed 
merger or acquisition. The Department's merger and acquisition review 
process is now delineated in DOD Directive 5000.62, issued October 21, 
1996. The DOD General Counsel and my staff, under the DUSD (Industrial 
Affairs), lead DOD's review, which proceeds simultaneously with the 
antitrust agency's review.
    When we learn of a transaction, we begin by identifying each and 
every program (from those in the research and development phase to 
those in full production) and every market area (for example, 
satellites, radar) where the two companies are competing, are likely to 
compete in the future, or are involved in a potential supplier 
relationship. Specifically, we examine four areas:

   Horizontal overlaps in programs or market areas.
   Vertical integration in programs or market areas where one 
        party to a merger or acquisition is, or is likely to be, a key 
        supplier to the other party or its competitors.
   Organizational conflicts of interest where one party is 
        providing systems integration or technical assistance to a 
        program office, and the other party is either a future 
        competitor for programs managed by that program office or is 
        currently performing work for that office.
   Savings that may result to the Department from the merger or 
        acquisition.

    Our objective is to ensure that we are maintaining competition 
consistent with our acquisition strategies now and for the foreseeable 
future. Competition encompasses not only the number of bidders in a 
competition, but also the quality of the competition. In some cases, a 
business combination may improve the capabilities of a weaker firm, 
thus strengthening the competitive environment. In other cases, a 
reduction in the number of competitors may have no significant effect 
on competition because an adequate number of suppliers remain to ensure 
continued pressure for technological innovation and price competition. 
In still others, as we have found, some action may be required to 
maintain robust competition.
    In order to make this assessment, we gather information from a 
variety of sources--the Military Departments, the Defense Agencies, the 
parties to the transaction, and competitors who may choose to convey 
their views to us or the antitrust agency. DOD also interacts directly 
and frequently with the antitrust agencies as the review proceeds. The 
Department facilitates the antitrust agency review by arranging 
interviews with DOD program personnel or other technical experts and by 
providing an overall perspective on Department programs. DOD also 
communicates to the antitrust agencies its views concerning the 
competitive effects of the transaction.
         bfgoodrich's proposed acquisition of coltec industries
    The Department of Defense reviewed BFGoodrich's acquisition of 
Coltec Industries in a manner consistent with past reviews by DOD. Our 
finding that the transaction would not adversely affect competition on 
DOD procurements was based on our assessment of information gathered 
from DOD Military Departments and Agencies, the parties to the 
transaction, suppliers and competitors, as well as the prime airframers 
who select components to be incorporated on their platforms. Following 
our investigation, we informed the Federal Trade Commission of our 
conclusions.
    BFGoodrich announced its intention to acquire Coltec on November 
23, 1999. As part of our review, we talked with the parties, their 
suppliers, and their competitors, as well as the prime U.S. airframers. 
As a result of our review we focused on an area of potential DOD 
concern, military landing gear. According to parties, military landing 
gear is less than 1 percent and less than 4 percent of BFGoodrich and 
Coltec's business, respectively.
    Landing gear systems are comprised of various components such as 
the landing gear, wheels and brakes, and brake controls. Each of these 
components can represent a separate market. Three companies, 
BFGoodrich, Coltec's subsidiary Menasco, and Messier-Dowty, a French 
company, have the specific engineering and manufacturing capabilities 
to design and fabricate both large landing gear and gear made from 
specialty materials that DOD uses on high-performance tactical 
aircraft. Currently, the Department of Defense and U.S. commercial 
airframers purchase landing gear from all three companies. We were 
concerned that the merger would reduce the number of competitors for 
certain types of landing gear from three suppliers to two, with one 
being a foreign source. It is noted that Messier-Dowty, which has 
facilities in Canada and UK in addition to France, currently provides 
landing gear on several U.S. military aircraft. Following a thorough 
review of the market, including size, technology, etc., and continued 
discussions with the parties, suppliers and competitors, U.S. 
airframers, and DOD program managers, we concluded that the merger 
would not have an unacceptable effect on future landing gear 
competitions.
    A concern raised by competitors during the course of the merger 
review, which I understand has now become an issue in litigation, is 
the ability of the landing gear manufacturer to limit competition for 
other components of the landing system by the design of the interface 
points on the landing gear, specifically those for wheels and brakes. 
DOD believes that competition will continue for those components, 
nevertheless, we will monitor procurements for those components. Should 
it appear that anticompetitive practices are being exercised by the 
landing gear producers, DOD can take appropriate action to encourage 
competition.
                               conclusion
    In closing, I would like to thank you and the Committee for 
providing me this opportunity to discuss the Department's views on 
defense industry mergers and acquisitions, particularly BFGoodrich's 
acquisition of Coltec. I believe the Department has acted responsibly 
and effectively in reviewing this transaction and that our review was 
indeed careful and thorough. I would be pleased to answer your 
questions.

    Senator DeWine. Mr. Oliver, thank you very much.
    Mr. Reuther, thank you for joining us.

                   STATEMENT OF ALAN REUTHER

    Mr. Reuther. Thank you. My name is Alan Reuther. I am the 
legislative director for the UAW. We appreciate this 
opportunity to present our views on the proposed merger between 
BFGoodrich and Coltec Industries.
    The UAW represents about 300 workers at the BFGoodrich 
Landing Gear Division in Cleveland and another 40 workers at 
the Goodrich Plating Operations facility, which is a supplier 
for the Landing Gear Division.
    In addition, the UAW represents about 490 members at the 
AlliedSignal Aircraft Landing Systems operation in South Bend, 
IN, which produces wheels and brakes for the landing gear.
    The workers at the BFGoodrich and AlliedSignal plants are 
highly skilled employees. As a result, these are good-paying 
jobs with pay ranging from about $13 to $21 per hour, and also 
with excellent benefits.
    The UAW is very concerned that the proposed merger will 
lead to the loss of a substantial number of jobs for the UAW 
members, both at the BFGoodrich facilities in Cleveland and the 
AlliedSignal facility in South Bend. As has previously been 
indicated, Coltec has plants in a number of States, as does 
BFGoodrich. As you have indicated, Mr. Chairman, BFGoodrich 
officials have previously advised you that there have been 
discussions about post-merger consolidation of these 
operations, and in their written report to Federal agencies, 
they have repeatedly listed the closing of the Cleveland plants 
as an option in all of their post-merger consolidation plans.
    I think the most telling thing is that BFGoodrich officials 
consistently are refusing to make a commitment to keep the 
Cleveland plants open, and even today in the testimony, 
although they say that no decision has been made, they are 
explicitly not committing to keep the plants open in the 
future.
    At the same time, we also think that following the merger, 
BFGoodrich will cease to use AlliedSignal as a supplier for 
brakes and wheels since they produce their own brakes and 
wheels. This in turn will result in the loss of many jobs at 
the South Bend facility of AlliedSignal.
    The UAW submits that this is contrary to our national 
interest to allow the proposed merger. First, and most 
importantly, from our point of view, the loss of the jobs at 
the BFGoodrich plants and the AlliedSignal facility will be a 
terrible blow to our members. Also, the loss of these good-
paying jobs will have a devastating impact on the communities 
in which these workers live.
    Second, the loss of the highly skilled jobs we believe will 
undermine our defense industrial base, thereby weakening our 
ability to respond to future threats to our national security. 
In particular, we are concerned that it will be impossible to 
reassemble the skilled workforce that is currently employed in 
these facilities if they are closed.
    Third, by eliminating the dual U.S.-based sources for 
aircraft landing gear, we believe the proposed merger will 
reduce competition and that this creation of a monopoly will 
inevitably lead to higher prices that will have to be paid both 
by the Pentagon and ultimately by U.S. taxpayers.
    As has previously been indicated, there is absolutely no 
reason why the proposed merger is needed. AlliedSignal has 
already offered in writing and also here today in their 
testimony to purchase the Cleveland plants from BFGoodrich. We 
do believe this is a win-win situation. AlliedSignal is 
promising to put investment into the plants and to maintain the 
workforce and the union contract. If AlliedSignal is permitted 
to pursue this alternative, we can maintain the good-paying, 
family-supporting jobs that are so important to both of the 
communities in Cleveland and South Bend. Equally important, we 
can maintain the skilled workforce that is an important part of 
our defense industrial base. And we can also maintain a 
competitive environment that will be good for the Pentagon and 
the taxpayers of this country.
    For all of these reasons, the UAW urges the subcommittee 
and the entire Congress to stop the proposed merger of 
BFGoodrich and Coltec.
    In conclusion, we would like to thank you, Mr. Chairman, 
for the leadership that you have shown on this important issue.
    Thank you.
    [The prepared statement of Mr. Reuther follows:]

                   Prepared Statement of Alan Reuther

    My name is Alan Reuther. I am the Legislative Director for the 
International Union, United Automobile, Aerospace & Agricultural 
Implement Workers of America (UAW). The UAW represents 1.4 million 
active and retired workers in the automotive, aerospace, agricultural 
implement, defense and other industries.
    We appreciate the opportunity to present our views on the 
competitive implications of the proposed merger between BFGoodrich Co. 
and Coltec Industries. The UAW is particularly interested in this issue 
because we represent workers at the BFGoodrich plants in Cleveland, 
Ohio and workers at the AlliedSignal plant in South Bend, Indiana, who 
would both be adversely impacted by the proposed merger. We commend the 
Chairman of this Subcommittee, Senator DeWine, for holding this hearing 
on the proposed merger.
    The UAW represents workers at two BFGoodrich plants in Cleveland, 
Ohio. We represent about 300 workers at the BFGoodrich Landing Gear 
Division, and about 40 workers at the BFGoodrich Plating Operations 
facility. We have represented the workers at these two plants since 
1991. The Plating Operation facility is a supplier for the Landing Gear 
Division.
    The UAW also represents about 490 members at the AlliedSignal 
Aircraft Landing Systems operation in South Bend, Indiana, which 
produces wheels and brakes for aircraft landing gear. We have 
represented the workers at this facility since 1935.
    The workers at the BFGoodrich and AlliedSignal plants are highly 
skilled employees. Over the years they have acquired the specialized 
knowledge and skills that enable them to produce high quality aircraft 
landing gear. As a result, these are good paying jobs, with the pay 
ranging from $13.60 to $21.00, along with excellent pension, health 
care and other benefits. These are family supporting jobs, which also 
help to sustain the surrounding communities in Cleveland and South 
Bend.
    The UAW is very concerned that the proposed merger of BFGoodrich 
and Coltec will lead to the loss of a substantial number of jobs for 
the UAW members at the BFGoodrich plants in Cleveland and the 
AlliedSignal facility in South Bend. Coltec currently has plants in 
Texas, Washington and Ontario. In addition to the plant in Cleveland, 
Ohio, BFGoodrich also has a facility in Tennessee. We understand that 
BFGoodrich officials have previously advised Senate staff that there 
have already been discussions about post-merger consolidation of these 
operations. Furthermore, BFGoodrich officials have refused to give any 
commitments about the future of the Cleveland plants. At the same time, 
they have already announced that they intend to close their corporate 
headquarters in Ohio and move about 170 jobs to Coltec facilities in 
North Carolina. Accordingly, the UAW believes it is likely that 
BFGoodrich will close the Cleveland plants following the merger, and 
then shift the jobs and production to operations in other states where 
the wages and benefits are significantly lower.
    At the same time, we believe that following the merger BFGoodrich 
will cease to use AlliedSignal as a supplier of brakes and wheels for 
aircraft landing gear, since BFGoodrich produces its own aircraft 
brakes and wheels. This in turn will result in the loss of many of the 
jobs at the South Bend facility of AlliedSignal.
    The UAW submits that it is contrary to our national interest to 
allow the proposed merger of BFGoodrich and Coltec to proceed. First, 
the loss of a substantial number of jobs at the BFGoodrich plants in 
Cleveland and the AlliedSignal facility in South Bend will obviously be 
a terrible blow for the UAW members who are laid off. In addition, the 
loss of these good paying jobs will also have a devastating impact on 
the communities in which they live. The UAW believes Congress should do 
everything possible to stop these types of job-destroying, community-
undermining corporate mergers.
    Second, the loss of these highly skilled jobs will undermine our 
defense industrial base, thereby weakening our ability to respond to 
future threats to our national security. In order to maintain a strong 
national defense, we need to establish and maintain a strong, vibrant 
industrial defense capability. This includes maintaining the highly 
skilled, trained workforce that can produce various military systems. 
If the proposed BFGoodrich/Coltec merger results in the closing of the 
Cleveland plants and the loss of a substantial number of jobs at the 
South Bend facility, there will be irreversible harm to our defense 
industrial base. It will be impossible to reassemble the skilled, 
trained workforce that is currently employed at these facilities. As a 
result, we will have lost an essential piece of our defensive 
industrial base that would be needed to produce high quality aircraft 
landing gear in the event our nation should need to quickly increase 
production of this vital aircraft component in order to respond to a 
threat to our national security.
    Third, by eliminating the dual U.S. based sources for aircraft 
landing gear, the proposed merger will reduce competition in this area. 
We believe the creation of this monopoly will inevitably lead to higher 
prices that will have to be paid by the Pentagon and U.S. taxpayers.
    There is absolutely no reason why the proposed merger is needed. 
AlliedSignal has already offered in writing to purchase the Cleveland 
plants from BFGoodrich. In addition, AlliedSignal has promised to put 
substantial investment into the plants, and to maintain smooth 
operations by continuing the current workforce and union contract. If 
AlliedSignal is permitted to pursue this alternative, we can maintain 
the good paying, family supporting jobs in both Cleveland and South 
Bend. Equally important, we can maintain the highly skilled workforce 
which is essential to maintaining this part of our defense industrial 
base. And, by continuing dual sources for the aircraft landing gear, we 
can maintain a competitive environment that will benefit the Pentagon 
and the taxpayers of this country.
    For all of these reasons, the UAW urges this Subcommittee and the 
entire Congress to stop the proposed merger of BFGoodrich Co. and 
Coltec Industries. This proposed merger is contrary to the interests of 
the workers, their communities, and the entire nation.
    In conclusion, the UAW appreciates the opportunity to present our 
views on the proposed merger of BFGoodrich Co. and Coltec Industries. 
We look forward to working with the Members of this Subcommittee on 
this vital issue of direct concern to UAW members.

    Senator DeWine. Mr. Reuther, thank you very much.
    Professor Elhauge, you may proceed. Thank you.

                   STATEMENT OF EINER ELHAUGE

    Mr. Elhauge. Thank you for inviting me to appear.
    To summarize my written testimony, this merger essentially 
involves a merger to monopoly, the most anticompetitive form of 
merger possible. There are lots of distractions and details, 
but that is the central fact that concerns me about this 
merger. No court has ever sustained a merger involving such 
high market concentration.
    Now, one distraction is that this merger creates a monopoly 
of buyers as well as sellers, or what in economics we call a 
monopsony. Here, the monopsony is for buying components for 
integrated landing systems on airplanes. But it is well 
established as a matter of economics and law that monopsony 
power is just as evil as monopoly power. Both produce a 
subcompetitive level of market output that ultimately harms not 
only suppliers but consumers.
    For example, courts have struck down buying cartels or 
mergers that create monopsony power that is used against 
farmers, thus not only harming those farmers but producing 
lower farm output, and thus ultimately harming consumers in the 
grocery stores.
    In this particular case, the lower form of output is likely 
to take the form of lower market quality as firms faced with 
monopsony pricing are forced to cut back on research and 
development and, thus, not improve the quality of landing gear 
and component parts as much as they otherwise would have. So 
there is, I think a long-term concern for what this means for 
the quality of airline parts as well as for prices.
    A second distraction is that in addition to the two merging 
firms, there is a third firm in the world that can make the 
relevant products, the aforementioned Messier-Dowty, which is 
controlled by SNECMA. But this firm owned by the French 
Government does not have the same competitive significance as 
an independent firm in the U.S. market for several reasons.
    First, it is in a joint venture with one of the merging 
parties, so it is not entirely independent.
    Second, it is legally barred from at least some military 
markets and has so far not been an effective competitor for 
landing gear on U.S. military planes other than currently 
participating in the demonstration phase of the NATO Joint 
Strike Fighter.
    Third, it has never sold landing gears in the U.S. market 
for large commercial planes, thus suggesting a relevant sub-
market there.
    In any event, even if you include this French firm in the 
market, that would still mean that this merger would result in 
a global market with only two firms. And whether you have a 
merger from two to one or from three to two, it is still highly 
anticompetitive.
    Now, a third distraction are various fringe firms that you 
saw in the charts put forward by BFGoodrich. Now, in my 
opinion, those firms should properly be excluded from the 
markets because they lack the physical assets to make large 
landing gear and lack the design capacity to make new large or 
medium landing gear, and also lack the technical capacity to be 
integrators of landing systems. But even if you include all 
those fringe firms, the thing to notice is that the market 
percentages they have are extremely small. The market 
concentration in the medium-gear market and the large-gear 
market would still be nearly 3 times, triple the FTC threshold 
for presumptive condemnation, and the increase in market 
concentration would still be 5 to 20 times that threshold.
    Now, even if you include all the firms in that chart, what 
this merger produces is a market where the two biggest firms 
have over 98 percent of that market. No court, again, I 
reiterate, has ever sustained a merger producing that high a 
market concentration.
    A fourth distraction are arguments that there is no real 
market for integrated landing systems, and that market was, in 
fact, omitted from the chart that you saw. The merging firms 
have argued that this market is too speculative because it is 
only part of a market trend. But this trend is a historical 
fact in the medium-gear market, has already started in the 
large-gear market, and all indications are that everybody 
expects it to be a market that will expand in the future. And 
it is with future competitive effects that antitrust is 
properly most concerned.
    In any event, even if there was no such integrated landing 
system market, the merger still creates a domestic monopoly in 
the medium and large landing gear markets, and that is clearly 
anticompetitive. So this clearly warrants presumptive 
condemnation, I think, even under the undisputed facts in this 
case. The two grounds for rebutting that presumption are absent 
here. Entry barriers are not low; they are extremely high. In 
fact, this market has not known entry for 2 decades, has only 
known exit from the market. And as far as efficiencies, there 
are no redeeming efficiencies in this case. In fact, the only 
real efficiency offered, what it amounts to is cost savings 
from closing a plant. Now, closing a plant is in effect a 
restriction of market output. That is the very anticompetitive 
concern that antitrust law was meant to address. It is not an 
efficiency to close a plant.
    Finally, it has been said that buyers have not been 
complaining, mainly Boeing, it amounts to, one powerful buyer 
has not complained. But this for very good reason is not an 
antitrust defense. It doesn't mean that there is no 
anticompetitive effect.
    First, when you have a merger that creates a monopsony 
power like this one, you would expect suppliers to complain 
first because they are the most directly affected.
    Second, although Boeing hasn't complained, many other 
buyers have, as Mr. Montalbine has indicated.
    And, third, the existence of a powerful buyer like Boeing 
does not eliminate the possibility of anticompetitive effect, 
as economic theory shows. Worse, a powerful buyer actually has 
incentives to preserve and enhance seller market power in 
exchange for a side payment giving you the share of the 
seller's monopoly profits. Such special discounts can also 
anticompetitively raise entry barriers because new entrants 
wouldn't have the same special discounts available to them.
    I have also become increasingly concerned that firms can 
coordinate on the policy of not objecting to enforcement 
officials. We all know that firms can coordinate on price 
without explicit agreement if there are few enough firms in a 
market. They can also coordinate on a policy of not objecting 
to each other's mergers. Here, Coltec and BFG didn't object 
about Boeing's prior mergers, so it is not surprising that it 
responds by returning the favor.
    Given these complicating factors, I have become 
increasingly concerned about the general trend towards 
consolidation that the Senator mentioned and that an 
enforcement policy of requiring buyer complaints can really 
facilitate that trend. Now, I have to say it is true that often 
a buyer decision like that can be an accurate surrogate for 
whether or not the merger is efficient or not. It is just that 
the economic analysis one needs to undergo to decide which 
buyers decisions are accurate surrogates and which ones are a 
result of other factors unrelated to competitiveness is so 
complex that it is actually more accurate, and certainly a lot 
easier, to instead rely on the structural market concentration 
analysis that has always been the bedrock of merger analysis. 
And that standard analysis clearly condemns this merger.
    Thank you.
    [The prepared statement of Mr. Elhauge follows:]

                  Prepared Statement of Einer Elhauge

    This merger essentially involves a merger to monopoly, the most 
anticompetitive sort of merger possible. There are various distractions 
and details, but that is the central fact that makes this merger highly 
worrisome. No court has ever sustained a merger to monopoly.
    1. Monopsony As Well as Monopoly. One distraction is that the 
merger creates a monopoly of buyers as well as sellers--i.e., a 
monopsony. Here, the monopsony is for buying components for integrated 
landing systems. But it is well-established in economics and antitrust 
law that monopsony power and monopoly power are equally evil. Both 
produce a subcompetitive output that harms not only suppliers but also 
consumers. For example, courts have struck down buying cartels or 
mergers that use monopsony power to depress the prices paid to farmers, 
which not only harms those farmers but also lowers farm. output and 
thus ultimately harms consumers in the grocery store. No court has ever 
sustained a merger to monopsony.
    2. Duopoly Instead of Monopoly? A second distraction is that in 
addition to the two merging firms there is a third firm in the world 
that can make the relevant products: large landing gear, medium landing 
gear, and integrated landing systems. But this firm owned by the French 
government (SNECMA/Messier-Dowty) does not have the competitive 
significance of a independent firm in the same market. First, it has a 
joint venture with the merging firms that makes it unlikely to compete 
vigorously. Second, it is legally barred from some military markets, 
and has generally not been an effective competitor for U.S. military 
planes other than currently participating in a joint bid for the NATO 
Joint Strike Fighter. Third, it has never sold landing gears in the 
U.S. market for large commercial planes, thus suggesting differentiated 
buyer preferences and a relevant submarket. In any event, even if one 
did include This French firm, That would still mean the merger creates 
a global market with only two firms, known in economics as a duopoly. A 
duopoly can be just as anticompetitive as monopoly, and clearly 
requires presumptive statutory condemnation. No case has ever sustained 
a merger to monopoly or duopoly.
    3. Include Fringe Firms? A third distraction are various fringe 
firms. These firms should be excluded from the markets here because 
they lark the physical assets to make large landing gear, lack the 
design expertise to make new large or medium gears, and lack the 
technical capacity to be integrators of landing systems. But even if 
one includes all these fringe firms in the market, the resulting market 
concentration would still be three times the FTC threshold for 
presumptive condemnation, and the increase in HHI's five to twenty 
times that threshold. No case has ever sustained a merger creating such 
a high market concentration and increase.
    4. No Integrated Landing Systems Market? A fourth distraction are 
arguments about whether a market for integrated landing systems really 
exists. It does. The merging firms argue that this market is too 
speculative because it is only part of a market trend. But this trend 
is a historical fact in the medium gear market, has already begun in 
the large gear market, and there is copious evidence that all sides 
think it is a market that will expand in the future.
    The merging firms also argue that integrated landing systems cannot 
be a product because their components vary from plane to plane and thus 
cannot be precisely defined. But some cars have air conditioning, power 
steering, antilock brakes, and automatic transmission. Others don't. 
Indeed, even for a given car model, consumers can normally dictate 
which of these features they want as options. The fact that every 
component of a car cannot be specified does not mean cars are not a 
product, any more than it means integrated landing systems are not a 
product. Market definition is not about the metaphysics of what a 
product ``is'' but a functional inquiry about which firms a customer 
can turn to in order to get its needs met. Thus, even if (like car 
manufacturers) systems integrators tailor their product to particular 
customer's requirements, it remains a product, and a monopoly in it 
(like a monopoly in cars) would be worrisome.
    Finally, defendants argue that no such market can exist because 
airplane makers can always re-enter it and integrate their own landing 
gear systems. But the possibility of buyer self-provision doesn't mean 
no market exists. We could always make cookies from scratch, but there 
remains a market for pre-made cookies. The whole point of markets is to 
permit a division of labor that allows each product to be made by the 
more efficient actor. A distinct market for integrated landing systems 
is emerging precisely because it is more efficient for an airframe 
manufacturer To out-source the integration function than to do the work 
itself, and it is that difference in efficiency that excludes the 
airframe manufacturers from the market.
    In any event, even if there were no such market, the merger would 
create a domestic monopoly in medium and large landing gears and thus 
clearly be anticompetitive.
    The merger thus clearly warrants presumptive condemnation under the 
undisputed facts. The merging firms have offered two defenses, but 
neither is availing.
    1. Entry Barriers Not Low. The merging firms have at times asserted 
that entry barriers are low. But this claim is completely contradicted 
by the evidence, which demonstrates extremely high barriers to entry. 
Indeed, as a historical fact, these markets have known only exit, not 
entry, for the last couple of decades, as the markets shrunk from 13 
firms to 3.
    2. There Are No Redeeming Efficiencies. Defendants claim that 
efficiencies exist. But they have never substantiated any merger-
specific efficiencies. To the, contrary, their cost-savings flow from a 
plan to restrict output by closing a plant. Such a restriction of 
output is not an efficiency justification but precisely the 
anticompetitive effect the statute seeks to avoid.
    Finally, the merging firms claim there can be no anticompetitive 
effect because there is a powerful buyer, Boeing, who has not 
complained. But this is not an antitrust defense, and is insufficient 
for a number of reasons. First, where (as here) a merger creates 
serious monopsony issues, suppliers rather than buyers are most 
directly injured and thus most likely to complain, as Crane has done. 
Second, although Boeing has not complained, many other buyers have. 
This includes AlliedSignal, which buys landing gears for integrated 
landing systems. It also includes personnel at several airlines. These 
airlines bear the bulk of any monopoly overcharge because most 
component profits are derived not from sales to airplane makers like 
Boeing, but from sales of replacement parts to airlines in the 
aftermarket. Third, the existence of a powerful buyer does not 
eliminate the possibility of anticompetitive effect. Where the buyer 
market power is legal, it is better to have it corrected by market 
forces (like the entry encouraged by supracompetitive prices) than to 
entrench market power on the other side. Even where it is 
uncorrectable, it turns out to be ambiguous whether exercising 
countervailing market power would improve or worsen market output. 
Areeda & Kaplow, Antitrust Analysis 200 n.51 (5th ed. 1997). Worse, a 
powerful buyer has incentives to preserve and enhance seller market 
power (rather than countervail it) in exchange for a side-payment 
giving it a share of the sellers' monopoly profits. IV Areeda, 
Hovenkamp & Solow, Antitrust Law 204-06 & n.4 (rev. ed. 1998). Such 
special discounts also anxicompetitively benefit the buyer by 
increasing barriers to entry into the buyer's market because new 
entrants would be disadvantaged by being denied the discount.
    Buyer nonobjections might also rest on three other grounds that 
have nothing to do with the merger being procompetitive. (1) Agency 
Costs. A buyer's managers may benefit from a short-term price reduction 
(which affects their promotion and rewards) even if the buyer's long-
term costs increase because of the created monopoly (which harms not 
current managers but their successors). (2) Oligopolistic Coordination 
on Non-objection Policy. Just as a few firms in an oligopolistic 
industry can coordinate on price, so too a few firms in an industry can 
also coordinate on a policy of not objecting to each other's mergers. 
Coltec and BFG did not complain about Boeing's prior mergers, so it is 
not surprising that it responds by returning the favor. (3) Collectivee 
Action Problem. Complaining firms must incur individual costs in 
petitioning and risking possible retaliation by merging firms. In 
contrast, the benefits of successfully complaining are collective and 
nonexclusive because every buyer benefits if an inefficient merger is 
blocked whether it complained or not. This free riding problem may 
prevent any buyer from objecting to inefficient merger that harms them 
all.
    Given these complicating factors, I have become increasingly 
concerned that a general enforcement policy of requiring buyer 
complaints can lead to industrial overconcentration. While many buyer 
decisions may be accurate surrogates for whether a merger is efficient 
or not, the economic analysis to determine when one can rely on buyer 
decisions is so complex that it is preferable--and indeed easier--to 
rely on standard market analysis. That standard market analysis clearly 
would condemn this merger.

    Senator Dewine. Thank you very much. We appreciate the 
testimony of all the witnesses.
    Mr. Linnert, you have stated in your testimony that 
Goodrich has no plans to close the Cleveland facility, and I 
believe you basically said, if I wrote this correctly, ``No 
decision has been made. After the merger, we will look at this 
issue.''
    The problem I have is that we have heard this before, in 
letters to my office and your press release. But I don't think 
it is entirely accurate. According to the confidential 
submissions that Goodrich made to the Defense Department, the 
submissions that I read in my opening statement, Goodrich is 
actively consider closing the Cleveland facility and has been, 
in fact, for years.
    I do, though, want to give you a chance on the record to 
explain why on the one hand you have told us and the people of 
Ohio one thing, that you have no plans to close the Cleveland 
facility, and then on the other hand you have told the 
Department of Defense that you have plans, at least tentative 
plans, to close Cleveland.
    Mr. Linnert. Senator, I would be happy to address that.
    The Cleveland facility has been studied ever since it was 
acquired. It has been studied in ways to improve its operations 
and efficiency. Investments have been made in that facility, 
and it is still a viable facility today.
    The company has made no decision to close any facility in 
any of our landing gear manufacturing portfolio. The simple 
reason for that, Senator, is we can't make a decision as to 
what to do with those landing gear facilities until after we 
merge. We do not have access to the cost or operating data for 
the Coltec facilities. That is why I have said before, and I 
will say it today, that no decision has been made to close 
Cleveland, Tennessee, Washington, Texas, or Canada--the 
locations of other facilities.
    But what we will do, we will do an in-depth study after the 
merger is closed. We have said to your staff that that study 
will take 6 to 8 months to complete when all operating data and 
all facts are available to us. That is our fiduciary duty to do 
that study, and we intend to do it. But no decision can be made 
until that study is complete.
    In terms of the letter that you are referring to to the 
Department of Defense, we did provide to the Department of 
Defense a study that was done by the gentleman who runs our 
landing gear business. He was asked to take a look at what 
financial reserves might be set up if such an action were 
taken. He looked at actions going forward based only on 
Goodrich data. That study that he performed was never given to 
Marshall Larson, the president of Aerospace, never given to Mr. 
Burner, the chairman of our company, never given to our board.
    In terms of corporate governance, that plan can never be 
acted upon until it has been reviewed with the appropriate 
folks. The appropriate folks have said in their sworn testimony 
in the court case that they have never seen that study, and 
they will not--they will not act on that kind of a study. An 
appropriate study will be done post-merger.
    Senator DeWine. Well, I appreciate that, and I also noted 
in the press coverage the last few days your position in regard 
to this planning document that I talked about in my opening 
statement--and you have just referenced this--that the planning 
document--this is the one that refers to the three different 
options for closing the Cleveland plant. And you have said and 
it has been reported in the press and you have been quoted as 
saying that this is basically a preliminary study by one person 
and that the study does not reflect Goodrich's plans to close 
the Cleveland plant. That is my understanding of what you are 
saying. Correct?
    Mr. Linnert. That is correct.
    Senator DeWine. Now, let me just say, though, it seems to 
me that the documents make it clear that, in fact, that 
planning document is not an isolated document created by one 
plant manager, and I think it is a little misleading to say it 
is just one person's document. It is part of the long-term 
thinking of Goodrich, part of the goal of eventually closing 
the Cleveland facility.
    Let me read to you again--because I want to give you a 
chance to answer and explain it, let me read to you again the 
language from the Goodrich letter to the Department of Defense. 
Now, this is from your company to the Department of Defense. It 
is not one low-level individual. This is from your 
representation to the Department of Defense as recently as 
February.
    ``The Company has been searching for business options and 
alternatives (including closing and moving equipment and 
operations from Cleveland * * *) for several years in an 
attempt to put its landing gear business on a more sound 
footing * * * After struggling mightily to improve productivity 
at the Cleveland facility, it determined that an important 
component of any long-range program would include closing this 
facility. Several options for doing so have been considered but 
rejected as not being economically feasible * * * This 
situation highlights one of the main attractions of the merger 
with Coltec * * * With the combined volumes of the two firms, 
one or more options may be attractive. In particular, the 
combined firm might well choose to close the Cleveland plant 
and plating facility * * *''
    Let me read that last sentence again. ``In particular, the 
combined firm might well choose to close the Cleveland plant 
and plating facility * * *''
    It seems to me that Goodrich has been thinking about 
closing Cleveland for years. This isn't anything new. Now, you 
know, we can deal with language, we can deal with words. 
Goodrich may not have a plan. Goodrich today may not know that 
it is going to close the plant. But I think, frankly, that is 
more of a lawyer's answer than anything else.
    What we were looking for today is, frankly, a very 
straightforward answer. If the Coltec data shows you what you 
think it will show you, you do plan to close the facility. 
Isn't that correct?
    Mr. Linnert. Senator, I have said before we do not have 
access to the Coltec operating data or----
    Senator DeWine. Let me rephrase it. Let me reread my 
question. If the Coltec data shows what you think it will show, 
you plan to close the facility. Isn't that true?
    Mr. Linnert. Senator, I do not know what the Coltec data 
will show, and neither do our people because they haven't seen 
the data. I think what is fair is that once the merger is 
complete and we have access to that data, it will be--all the 
facilities will be examined on a level playing field.
    Whether any consolidation results from that, whether any 
closing results from that, whether there is any shifting of 
programs, is to be determined. There has been no predetermined 
outcome to that study.
    Senator DeWine. How do you explain the language of your 
letter?
    Mr. Linnert. The letter----
    Senator DeWine. I just read it to you. I would be more than 
happy to read it to you again, but----
    Mr. Linnert. I have the letter.
    Senator DeWine. I am sure you do. How do you explain that?
    Mr. Linnert. What that letter said is----
    Senator DeWine. It does not say what it says? I mean, it 
does not say what it seems to----
    Mr. Linnert. No, I think it says exactly what it says. It 
reflects the history of studies that have been undertaken at 
the Cleveland facility. There has been a constant effort to 
upgrade the efficiency and the competitiveness----
    Senator DeWine. Well, let me ask you this--I am sorry. Go 
ahead and finish.
    Mr. Linnert. No, I didn't mean that. I meant the bell.
    Senator DeWine. This happens all the time. Don't worry 
about it.
    Mr. Linnert. Do you want me to finish?
    Senator DeWine. I would like for you to finish. I 
apologize.
    Mr. Linnert. That is OK. There have been ongoing studies 
since that plant was acquired to look at ways to improve the 
efficiency and competitiveness of that facility. Closing that 
facility is an option that is looked at when you look at those 
scenarios, in building another facility, consolidating 
elsewhere. That was done prior to the merger, Senator, and 
every time the Cleveland facility survived.
    Senator DeWine. If you were an employee in Cleveland 
Pneumatic and looked at that letter, wouldn't it bother you 
that Cleveland, of all the BFGoodrich facilities, is singled 
out so prominently in this document? It just jumps out. 
Cleveland seems to be where the focus is of this letter. It is 
prominent.
    Mr. Linnert. Yes, because----
    Senator DeWine. You don't have anybody else that prominent.
    Mr. Linnert. Yes, because of the three facilities that we 
operate in Tennessee, Ohio, and Washington, the one that was 
earmarked to try to improve its efficiency and competitiveness 
was Cleveland. So, yes, if I was an employee of Cleveland, I 
would be concerned about that study. But what we have said, 
there is a new landscape, a new playing field. We are going to 
look at five facilities. What that outcome will be is yet to be 
determined. There is no prejudgment of that.
    Senator DeWine. Mr. Oliver, let me turn to you. You had the 
opportunity to--and I didn't interrupt him, but I almost wanted 
to because I wanted to get your reaction contemporaneous. But 
Professor Elhauge made some interesting comments, and I wonder 
if you would like to respond to those. Let me read them to you. 
I am reading from the prepared testimony of the professor: ``* 
* * this firm owned by the French government * * * does not 
have the competitive significance of an independent firm in the 
same market. First, it has a joint venture with the merging 
firms that makes it unlikely to compete vigorously. Second, it 
is legally barred from some military markets, and has generally 
not been an effective competitor for U.S. military planes other 
than currently participating in a joint bid for the NATO Joint 
Strike Fighter. Third, it has never sold landing gears in the 
[United States] * * * for large commercial planes * * *'' That 
was a portion of what you said.
    Mr. Oliver. Yes, I heard that, and I think it may have been 
inadvertently misleading.
    Senator DeWine. I am sorry.
    Mr. Oliver. I think it may have been inadvertently 
misleading.
    Senator DeWine. OK. That is why we have a panel. I want to 
get your reaction.
    Mr. Oliver. Because, as I said, they actually provide 
landing gears for current airplanes, military airplanes, and 
for many future airplanes, and, in fact, the Joint Strike 
Fighter is going to be the airplane that the Navy, Marine 
Corps, and the U.S. Air Force use almost exclusively, and some 
NATO countries may buy it, too. But when you say the NATO Joint 
Strike Fighter, it implies that one might think that this is 
something that you are only going to build overseas. That is 
going to be the airplane that is going to be our primary 
warfighter, and it is going to be for all the services that fly 
fixed-wing airplanes.
    The French company is the partner on one of the teams. I 
mean, if that team wins, they will get whatever they have 
negotiated with the team, but certainly either all of them or a 
great majority of them. They are also in the business--I look 
at--they are on all of our other teams, including our most 
classified plans, such as the F-22. So I think it is misleading 
to say that there is business by which they are, one, 
restricted from because that is not true in the airplane 
landing business.
    Senator DeWine. Wait a minute. I want to make sure I 
understand. There is no area because of security that they 
can't bid on?
    Mr. Oliver. They can't bid on black programs.
    Senator DeWine. Right.
    Mr. Oliver. But you tend not to have black programs on 
landing gears.
    Senator DeWine. Well, we won't go beyond that today.
    Mr. Oliver. And as I said, they have 50 percent of the 
market for military planes, and they would have 50 percent 
after this. And the American companies would have 50 percent, 
and one might even consider them to be in a much better 
position to compete after the merger.
    Senator DeWine. So we would be down, though, effectively to 
one French company, one American company.
    Mr. Oliver. Yes, sir, that is correct.
    Senator DeWine. And the Defense Department is just happy 
with that.
    Mr. Oliver. We looked at it----
    Senator DeWine. That is just OK.
    Mr. Oliver. Yes, sir, that is correct.
    Senator DeWine. OK.
    Mr. Oliver. We looked at it from the point of security and 
competitiveness, and we feel the security problem is solved--we 
feel that security is answered, and we believe that it will be 
a competitive situation. And that might not be true if we were 
talking about some other component, but in this case it is 
true.
    Senator DeWine. Do you want to respond to that, Professor?
    Mr. Elhauge. Well, I guess I would like to begin by saying 
that there are many personnel within the Department of Defense 
who have expressed concerns about this merger, particularly 
personnel in the landing procurement business.
    Now, I would also note that in declining to pursue this 
merger, the Department of Defense has, as Mr. Oliver indicated, 
focused on the military market, not on the impact on the 
commercial markets, which are a big part of this merger. And, 
in particular, in their letter they express concern about this 
joint venture, and if the joint venture extended to the 
military projects, they might want to revisit----
    Senator DeWine. Whose letter is this? I am sorry.
    Mr. Elhauge. This is the letter----
    Senator DeWine. The specific letter?
    Mr. Elhauge. I don't have it in front of me, but it is a 
letter from the Department of Defense notifying the parties 
that they weren't going to pursue the merger, noted this joint 
venture with Messier-Bugatti, which is owned also by the parent 
corporation, SNECMA, and that if anything changed with regard 
to the scope of that joint venture, they might want to revisit.
    But I think it should be of concern to the military that 
there are only going to be two purchasers, even if there is one 
U.S. purchaser and even if they think that the French firm is a 
viable competitor. General market analysis indicates that 
duopolies tend to perform poorly, not well.
    Now, you know, I think the military, to be fair, has not 
seen all of the documents I have seen, and I can't talk about 
all of them because of the protective order here today. But I 
think I just have a different judgment of the likely 
competitive impact of this merger than indicated by the 
statements of the Department of Defense here today.
    Senator DeWine. Well, it is an interesting statement you 
made, and you believe that the Pentagon has not seen all the 
documents that you have seen, something that I understand you 
don't want to go beyond at this open hearing. But that is 
something that I think we clearly should follow upon, if, in 
fact, it is true that the Pentagon has not seen those same 
documents that you have seen. I don't know whether Mr. Oliver 
wants to respond to that.
    Mr. Oliver. Sir, it is difficult for me to respond about 
whether or not I have seen----
    Senator DeWine. No, I understand that.
    Mr. Oliver. But I do have a correction to make. My staff 
has pointed out that I misspoke because the French company is 
not on the F-22, they are on the F-18, the T-45, which is a 
trainer, and the AV-8B, which is the Marine airplane.
    Now, it is also my understanding--and I do not have the 
document--that the joint venture that you are talking about is 
on brakes and wheels, not on landing gear. That is my 
recollection.
    Senator DeWine. You are responding that that is correct, 
Professor Elhauge? Let the record reflect----
    Mr. Elhauge. I believe that is right. My point about the 
joint venture goes to whether--the vigorousness, their 
willingness to compete, not that they will be merged in the 
landing gear business but that when you share profits with 
another business, you are less likely to compete as vigorously 
with them as you would otherwise.
    Senator DeWine. Mr. Oliver, recently the Department of 
Defense objected to the proposed merger of Northrop Grumman and 
Lockheed Martin. The basis for that objection, as I understood 
it at the time, was that in certain markets the merger would 
reduce the competitors from three to two. Even assuming for 
purposes of discussion that the French company is just as 
desirable as an American supplier, why isn't the Defense 
Department concerned about this merger, which reduces, in your 
own words, competition from three down to two? It was 
apparently a big problem when we were dealing with Northrop 
Grumman and Lockheed Martin?
    Mr. Oliver. Senator, Mr. Chairman, it becomes--each of 
these is a difficult problem. I think we spent about 4 months 
on the Coltec/Goodrich thing. I had a group of people working 
this for about 4 months, and I would guess that they briefed me 
half a dozen times. Each of these falls on lots of different 
issues. Let me say that they are different, and the problem--
and other than talking about the security and the fact that we 
thought there was sufficient competition, I am somewhat 
constrained by the ongoing lawsuit to talk about specifics of 
the considerations that we went into.
    Senator DeWine. You are under an order?
    Mr. Oliver. No, sir. I am--the companies have to--we 
require the companies, when we are looking at these things, to 
talk to us and give us data. In addition, we require that data 
from other people. We go out and talk to different services, 
competitors, and everyone else, and we require them to give us 
data.
    That data right now is not discoverable in the current 
lawsuit, and we don't want it to become discoverable because we 
would like to continue to have an open and full relationship 
with companies when we discuss this, because we go into them 
not knowing where we are going to come down, and we believe the 
decisions we are making are those which are based towards the 
best interest of the country. So, therefore, we are pretty 
insistent with these companies that they talk to us clearly and 
forthrightly. And so I am not interested in opening up all that 
data.
    Senator DeWine. Well, you know, I understand that, and I am 
not going to beat up on you or the Department today. But I tell 
you, DOD is not a party to this lawsuit, and if the Department 
of Defense fails to give candid testimony to this committee or 
any other--now, just let me finish--this committee or any other 
committee because there happens to be a private lawsuit, it is 
going to be very difficult for this Senate to do business. I 
mean, we are talking about broad public policy issues that, 
quite frankly, are a lot more important than any one particular 
lawsuit.
    We do not want to get involved in this lawsuit. We made 
that very clear. I made that very clear at the beginning. But 
now we are talking about you, the U.S. Government, talking 
about why you made a public policy decision, and whether it was 
right or not, it is something that clearly we have the right to 
air in this committee. And when you answer my question and you 
basically say, Senator, I would love to talk to you about this 
but I can't, it makes it very difficult to look behind your 
decision, which I think we have every right to do.
    Mr. Oliver. Yes, sir. As you know, you do. I am only 
worried--I told you what I was worried about.
    The decision in this particular case, when you look at the 
type of competition, the type of business it is, and whether or 
not it is a piece part business, whether it is an organization 
in which you sell one thing and the same people provide all of 
the repair parts, whether or not the military in this case is 
15 percent of the market and commercial is 85 percent of the 
market, how much of the business it is, for example, this is 1 
percent of one company and 4 percent of another, what is the 
cost of the airplane, relative to the cost of the airplane, and 
let's say it is in the low percents in the cost of the 
airplane, what type of technology it is--in all those, we have 
found this to be a different case from the previous one, and we 
believe that in this case two companies who have been accepted 
and were on military planes and were performing adequately and 
were accepted by the large plane manufacturers, we believe the 
competition was adequate.
    Senator DeWine. Mr. Montalbine has testified that if this 
merger is allowed, AlliedSignal might be forced to exit the 
wheels and brakes market. In fact, we saw a chart that was put 
up. What is your reaction to that? If that is true, would that 
be a problem from a competitive point of view?
    Mr. Oliver. I don't know, Senator, whether we looked at 
that or not. I would have to get back to you, Senator.
    Senator DeWine. Well, I accept that answer and I appreciate 
you don't recall. But that seemed to be a fairly significant 
thing as his presentation was being made. Would you--you just 
don't know, apparently.
    Mr. Oliver. I do not know, Senator.
    Senator DeWine. Mr. Montalbine, do you want to comment on 
that?
    Mr. Montalbine. Yes, if I could address a point that has to 
do with the focus on what a landing system constitutes, and it 
is a landing gear and a wheel and brake specifically that we 
are talking about here.
    When we discussed previously the existing joint venture--
and it happens to be between Messier and BFGoodrich--it is on 
wheels and brakes. But that has a very significant effect.
    A landing gear is designed 18 months before a wheel and 
brake is really configured. In a post-merger world, BFGoodrich 
and Messier will be predisposed to configure the landing gear 
to suit their wheels and brakes. That is how we will be 
precluded----
    Senator DeWine. Excuse me. Maybe we will put that chart up. 
Anytime anybody as they are testifying wants one of their 
charts up, just let me know because I think it may be helpful 
as we have this discussion.
    Mr. Montalbine. If you look at the lower half of the chart 
in the post-merger world, let's say that exists, and there is 
an existing wheel and brake joint venture between Messier and 
BFGoodrich, and it is on the A-319, the A-320, the A-321, the 
A-330, and A-340 programs, it would be in their best interests 
to configure the landing gear for their equipment. And there is 
gaming that can occur, ways to configure the interface points, 
the size of the axle, the size of the equipment, to preclude 
our wheels and brakes and favor their wheels and brakes.
    In the next year and a half, there will be about six major 
programs that will be let in as integrated landing systems--the 
A-3SX, the AS-400, the Embraer 170, the Bombardier 90-passenger 
jet--and those systems will require a single supplier to be 
able to integrate and provide a landing gear, wheel and brake, 
and brake control.
    In the post-merger world, where would AlliedSignal team? We 
couldn't team with Messier. They have their own wheel and brake 
company. We couldn't team with BFGoodrich. They have their own 
wheel and brake company. And as I stated before, we did attempt 
to look at Liebherr--and there are other smaller mom-and-pop-
type, build-to-print landing gear companies. They lack the 
adequate design, knowledge, and expertise to develop structures 
for airplanes like the A-3SX, an 800-passenger size aircraft. 
Very, very large structure. And even if they do have some 
moderate design capability, they lack the manufacturing 
facilities for that.
    So we will not be able to compete on any of those new 
programs that are coming down. Over time our market share will 
drop. We will be forced to just focus on the products that we 
have now in production, and eventually we will be forced to 
exit the business.
    Senator DeWine. Mr. Oliver, do you want to comment on that?
    Mr. Oliver. Let me comment on part of it because it----
    Senator DeWine. Sure.
    Mr. Oliver. Which is that if I were doing this chart, I 
would have drawn it differently, and I would have drawn it with 
each of these at half the size they are to represent market 
share and to show that currently this company has half the 
market share, say 46 percent in the world. And we are talking 
these two being half that.
    Senator DeWine. Excuse me. I want to get my statistics 
correct and make sure I have got it down. The total market 
share worldwide is what?
    Mr. Oliver. With respect to military.
    Senator DeWine. OK. Oh, we are talking about U.S. military?
    Mr. Oliver. No, no. Military, period. I am interested in 
U.S. military.
    Senator DeWine. Wait a minute. Which?
    Mr. Oliver. I am interested in----
    Senator DeWine. I am just trying to----
    Mr. Oliver. I am interested in market share of U.S. 
military.
    Senator DeWine. U.S. military market share. OK. Give me the 
figures.
    Mr. Oliver. And this would be half, and these would be a 
quarter. And so now what you would end up with----
    Senator DeWine. Total sales, what you are saying is total 
sales, they have half the market now--half the U.S. military.
    Mr. Oliver. And this will have half.
    Senator DeWine. OK.
    Mr. Oliver. So that is the way I would have drawn it if I 
were making the same chart.
    Senator DeWine. The size would be different in the boxes. 
OK.
    Mr. Oliver. Yes, sir.
    Senator DeWine. Anything else you want to add to that?
    Mr. Oliver. No, sir.
    Senator DeWine. Mr. Montalbine, you noted that individuals 
at Hill Air Force Base expressed concerns with the merger. Do 
you want to expand on that? And then I want to give Mr. Oliver 
a chance to follow up with that.
    Mr. Montalbine. Hill Air Force Base is responsible for 
predominantly all of the overhaul and maintenance for landing 
gears and wheels and brakes on military aircraft. Several 
people--John King in particular, a key individual in that base 
has expressed in a written affidavit that they opposed this 
merger based on the anticompetitive effects that they foresaw. 
The ability--or the fact that they would be held hostage with 
regard to spares pricing, and they would have no alternative 
source of that material.
    Senator DeWine. Mr. Oliver, do you want to comment on that?
    Mr. Oliver. Yes, sir. I don't know him, but it is difficult 
for an individual at that level to have access to all the 
information that you might have in an office dedicated to 
looking at these things.
    Senator DeWine. OK. Let me ask you a question, Professor. 
On its face, this merger appears to be troubling. Either we 
have a three-firm market shrinking to two, or a two-firm market 
shrinking to one, depending on how you look at it. You 
certainly appear to believe that this raises significant 
competitive concerns, but why hasn't there been, in your 
opinion more objection to the deal? And why hasn't the FTC 
pursued a case? How do you explain that.
    Mr. Elhauge. Well, I am not entirely sure. I think the 
overall answer is that the FTC exercises prosecutorial 
discretion here, so it does not challenge every merger and does 
not have to challenge every merger that violates the statute. 
It has scarce enforcement resources. It has to allocate them in 
the way that it sees fit, and I don't know what competing 
demands there might be on their time.
    Here there are a couple of factors that it might well have 
looked at under standard policy. One is that we have private 
litigants in this case who are bringing an antitrust 
enforcement action, anyway. So if you are sitting in the FTC, 
it might make a lot of sense to say we will go after some other 
merger and allow the private parties to fight this one out in 
court and save our personnel for something else.
    Second, I think the FTC does rely on buyer complaints and 
in this case on the absence of Boeing's complaints, which for 
the reasons I indicated previously I think to the extent it is 
relying on that, it is over-relying. Really, they are not--a 
lack of complaint by Boeing is not nearly as significant as the 
market structural analysis is, and if there are reasons to 
doubt it and the fear that such a policy would lead to general 
over-concentration.
    But I would note that because of all these concerns about 
whether FTC non-enforcement really means anything, the FTC 
itself in the letter about this merger and as a general matter 
of policy says that its decision not to go after a merger does 
not mean the merger is not anti-competitive, and it always 
reserves the right to intervene later in any merger if further 
information develops. And Congress has itself passed a statute 
to indicate that judges should not shy away from enjoining 
mergers of private litigants even though the FTC has decided 
not to pursue the matter.
    Senator DeWine. Mr. Reuther, I imagine that in your time at 
the UAW you have seen too many plant closings. Can you describe 
briefly the impact that a closing like this would have on a 
community and how long it would take to recover the economic 
benefit of those jobs? I mean, you know the type jobs we are 
talking about. You know what the basic pay is.
    Mr. Reuther. Well, for the workers involved, typically, 
especially if you have an older work force, they can experience 
unemployment for lengthy periods of time. And even when they 
are able to find new employment, typically, it is at much lower 
pay, without the same type of benefits.
    In addition, when you have job loss of these magnitudes, 
the entire community suffers; businesses in the area that 
depend on people having good-paying jobs to buy products, the 
local school system can suffer. It can have a ripple effect 
throughout the entire community that can last for quite some 
time.
    Senator DeWine. Let me ask you another question. We all 
know there has been a significant decrease in the defense 
budget, and we know that some mergers are certainly necessary.
    Let me ask you, has the UAW opposed all of the mergers in 
the defense industry or have there been some that you did not 
oppose?
    Mr. Reuther. We do not oppose mergers per se. We always 
look at them on a case-by-case basis to see whether, as a 
result of the merger, will the workers be in a stronger 
position in terms of maintaining their jobs or are the mergers 
likely to lead to the layoff of a lot of the workers?
    In the nondefense area, the most recent major example, 
Daimler-Chrysler, we did not object to that merger. I would 
note that shortly after that was announced, the CEO's 
immediately made announcements that there would not be any 
plant closings or layoff of Chrysler workers in this country. 
In contrast to the statements we heard today, they didn't say, 
``Well, no decision has been made. We are going to gather data, 
and we will get back to you in 8 months.'' They immediately 
were able to make an announcement in a case, you know, that was 
a much grander scale than the merger here.
    Also, on each merger case, we look at the operations of the 
companies involved to try and make our own judgment about 
whether the company is going to be planning to consolidate 
operations. Taking the Daimler-Chrysler case, it was pretty 
clear that their lines did not directly compete, so that it was 
not likely to lead to consolidations. In this case, as we have 
heard from the testimony before, they have been planning a 
closure of the Cleveland facility for some time, and there has 
not been any dispute about the impact on the AlliedSignal 
facility in South Bend.
    So it is based on the specific facts of this case that we 
think a merger is not in the interest of the workers.
    Senator DeWine. Mr. Linnert, what about a potential sale to 
AlliedSignal? There has been a lot in the press about this. 
Apparently, they have made an offer.
    Mr. Linnert. They have not made an offer.
    Senator DeWine. All right. What about if they do make an 
offer? What if you make the decision that you are going to 
close this facility? You are certainly not just going to close 
it up and eliminate competition. You are going to put that on 
the market, I assume.
    Mr. Linnert. Let me put in context what has been offered, 
since you asked.
    What AlliedSignal has offered was to buy the Cleveland 
Pneumatic Company or Menasco. They offered to buy Menasco 2 
months after our merger was announced. They called the Coltec 
CEO and offered to buy his entire landing gear business in 
exchange for stopping their efforts at DOD and FTC to block the 
merger. He told him he was not willing to sell his landing gear 
business, which is more than just facilities. It is the entire 
profitable business to them.
    What Allied has offered since then is to buy the entire 
Cleveland Pneumatic Company, which is the Goodrich landing gear 
business. That business is not for sale, just as Coltec's 
landing gear business is not for sale.
    So for someone to offer to buy our entire landing gear 
business, it just makes no sense to us, and we will not do it.
    Senator DeWine. Mr. Montalbine, do you want to respond to 
that in any way?
    Mr. Montalbine. Well, we have, as Mr. Linnert had said, 
we----
    Mr. Linnert. Senator, while he is thinking of his answer, 
may I have a few minutes later on to address some of these 
other points, if that is----
    Senator DeWine. Oh, we will give you all the time you want.
    Mr. Linnert. All right. Thank you.
    Senator DeWine. You just kind of raise your hand or give me 
a signal, and we will just kind of do it. We are pretty 
informal here, and we will take all of the time it takes today.
    Good ahead, sir.
    Mr. Montalbine. AlliedSignal has offered to buy the 
Cleveland plant in order to remedy--or the Menasco plant--in 
order to remedy this anti-competitive situation that----
    Senator DeWine. The plant.
    Mr. Montalbine. Well, the business. I am sorry. The 
business. The Cleveland Pneumatic's business or the Menasco 
business in order to remedy this situation, subject, of course, 
to due diligence. We have not made a monetary offer. We need to 
go through that process. But, again, as was indicated, we have 
been rebuffed and told that the business was not for sale. We 
are still willing to do that. We are still willing to go 
through that process, and it is just a matter of BFGoodrich 
allowing that to continue.
    Mr. Linnert. May I speak to that?
    Senator DeWine. Sure.
    Mr. Linnert. Let us be real clear about what has been 
offered. They have offered to buy an entire business. That is 
commercial programs, regional programs, business programs, 
military programs. That is what makes up both those businesses. 
Those businesses are not for sale, as we have said.
    In settlement discussions with AlliedSignal, which were 
made public yesterday, what AlliedSignal was willing to 
discuss, was having returned to them the military programs that 
they sold to Coltec in 1995. That would be several programs and 
some equipment, no facilities, no business in regional business 
or commercial.
    Mr. Montalbine. We also offered to buy something less than 
the entire CPC business. And there was discussions about the 
factory that is based in Cleveland less than the Tennessee 
facility, and that offer also stands.
    Mr. Linnert. Again, our business is not for sale. What we 
offered to sell back to them was just the military programs 
that they owned when they exited the business--those programs 
and the equipment that they sold to Coltec in order to service 
those programs. That was on the table, not an entire business, 
and we just will not sell it. It destroys the reason of why we 
are doing this merger. We just will not sell an entire 
profitable business.
    Senator, could I take a few minutes----
    Senator DeWine. Mr. Linnert, you can take your time now and 
go right ahead. You wanted to respond, apparently, to a few 
other comments, and you go right ahead.
    Mr. Linnert. Just to help with the understanding. We have a 
chart on the military----
    Senator DeWine. OK. We will put the chart up.
    Mr. Linnert [continuing]. Landing gear business. And what 
we tried to show was here, currently, are folks who are in the 
landing gear supply business for the military, and we tried to 
list the programs on the left and then the names of the 
companies across the top. The flags merely show what country 
they are from. I just wanted to put that up to show that there 
is a more vibrant----
    Senator DeWine. Mr. Linnert, I hope people's eyes are 
better than the Chairman's eyes. That is all I have got to say. 
Do a good job describing it because I cannot see it very well.
    Mr. Linnert. The flags just indicate a number of different 
suppliers.
    Senator DeWine. I can see the flags. It is the rest of it I 
cannot see.
    Mr. Linnert. I think, just to finish that one thought, and 
I will get off that one, the one thought. In the military 
business, the data rights to the landing gear are owned by the 
military. They can choose who they want to provide that landing 
gear. Once you get past the people who supply an entire landing 
gear design, if you look at the people who supply components to 
that, the pieces and parts of it, there are 25 or more 
suppliers. This is something where the military owns the data 
rights. There are a number of people who can supply military 
landing gear. It is not a two-to-one merger.
    In the commercial markets--there was a lot of discussion 
about this three-to-two--in the large commercial markets, the 
way these markets work, take Boeing as an example, Boeing, in 
cooperation with the landing gear manufacturer, designs the 
landing gear. Boeing owns that design. Boeing can choose to 
have, whether it is BFG, Coltec or Messier-Dowty, Coltec can 
choose who they want on any of their programs. They have that 
same choice after the merger. Admittedly there are two large 
commercial suppliers.
    If they ever get to the point where they think they are not 
getting a competitive, high-quality product from those large 
commercial suppliers, it will be their going forward plan to 
incentivize that next tier of suppliers to come up into the 
large commercial market. The reason there are not more up there 
is what we have said before. There has been this declining 
production in the commercial and military markets.
    So, again----
    Senator DeWine. Do you think that is practical?
    Mr. Linnert. To incentivize others? Absolutely. If Boeing 
is dissatisfied with its suppliers, it will make more--it will 
create and enhance or give the opportunity to more people to 
get into that business. And the reason I say that is----
    Senator DeWine. What if the U.S. Government becomes 
dissatisfied?
    Mr. Linnert. The same with the U.S. Government on the 
military side. Right now, as you can see from that chart, the 
military currently buys landing gear from a number of different 
suppliers.
    Let me just finish the thought with Boeing, though, please. 
A comment was made earlier about Boeing's support for this 
merger being obtained with a side payment. What I think that 
oblique reference to is Boeing has a program whereby they deal 
with their suppliers, and as Boeing competes for a worldwide 
share of commercial planes with Airbus, Boeing does have a 
program of trying to have their suppliers become lower cost and 
more efficient. That is what has driven the consolidation in 
this business.
    Boeing has a program of asking its suppliers for discounts, 
in terms of the products they supply to them. It has got 
nothing to do with a side payment from any one company. It has 
to do with a program by Boeing to become more efficient and 
cost competitive.
    In terms of Airbus, one of the goals of this merger is for 
us to grow. This merger is not about shrinkage. The BFGoodrich 
Company wants to grow. As I mentioned, we would have 27,000 
employees worldwide. We intend to continue to grow in both our 
aerospace and chemicals business, as well as industrial 
products, which we will get through the merger.
     This merger is anything but anti-competitive. If it was, 
the FTC and the DoD would not have come to the conclusions that 
they have come to. In their process, they do a very good 
professional process in the course with their merger 
guidelines. What was different here is Allied and Crane kept 
raising arguments during the process, as was their right to do. 
DoD and FTC considered all of those arguments that were 
presented by Allied and Crane, and even with that lengthened 
scrutiny, came to the same conclusion. This merger is not anti-
competitive.
    Senator DeWine. Anything else you want to comment on?
    Mr. Linnert. Let me look at my notes real quick, Senator.
    Senator DeWine. Sure. Take your time.
    Mr. Linnert. There was a comment about the integrated 
systems market and Allied being foreclosed--its wheel and 
brakes facility going forward.
    Two thoughts there. The one thought was that somehow this 
merger will cause loss of jobs in South Bend. We disagree with 
that. The reason we disagree with it is AlliedSignal is 
currently on 9 of 13 Boeing programs with wheel and brakes and 
6 of 11 military programs. Once you are on those programs, once 
you are certified on those programs, you are on those programs 
for the life of the plane, however long that program is in 
existence.
    The work that is currently being done in South Bend will 
continue for a long, long time. Now, the competition is for new 
programs. The jobs I mentioned that we have added in Ohio over 
the past 2 years, the 200 jobs in aerospace, principally have 
come at the Troy, OH, wheel and brake facility. One-hundred-
and-twenty-some of the additional jobs have come at that 
facility. Why? Because we have been competing more vigorously 
with AlliedSignal in terms of winning new competitions for 
wheels and brakes.
    Again, that is a competitive issue. We are happy to compete 
with that. But the annuity part of it, the programs they have 
now are not impacted by this merger. Wherever they are 
certified, they will keep making the wheel and brakes. 
Competing going forward, we are glad to do that.
    Now, the argument that they are making is there is an 
integrated system market out there where Goodrich will favor 
its wheel and brakes over Allied wheel and brakes in putting 
together a package. Two thoughts to that.
    First, there is a strategic alliance agreement that Allied 
has with Coltec in which they will team to put in bids for 
integrated landing systems. We succeed to that agreement. We 
will honor that agreement. We have told Allied we will honor 
that agreement with all appropriate safeguards with respect to 
any proprietary knowledge. We have offered to let them take it 
back, but we will honor that agreement through its term.
    Second, the fact is there is really no integrated landing 
system market today. During the first 5 or 6 years of that 
agreement--and it is a 10-year agreement. It is about halfway 
through--there were a couple of programs that were bid. There 
is no large commercial integrated landing system market today.
    Senator DeWine. Mr. Oliver, you testified why you did not, 
grossly summarizing here, why the Defense Department did not 
have a problem with this merger, and you gave a number of 
reasons. What is the advantage, though, of this merger? What 
does the Defense Department pick up by this merger? How are you 
better off? It is a different question.
    Mr. Oliver. Yes, I know it is.
    Senator DeWine. I'm not saying that should be your 
standard, but I am just curious. What do you pick up, if 
anything, from this thing?
    Mr. Oliver. Let me preface that by saying that we use the 
standards I said. So I am not sure--we did not look at that, of 
what we pick up, we picked up. I mean, that was not part of it.
    I will give you my personal perspective, which is really--
--
    Senator DeWine. Excuse me. So, first of all, the Defense 
Department, what you are saying is--I want to make sure I 
understand--you did not, in your study, because that was not 
part of what you do, come up with anything that was positive 
about this.
    Mr. Oliver. The industry----
    Senator DeWine. Now, what you are going to do is give me 
your own opinion, which I appreciate it, and I welcome.
    Mr. Oliver. Yes. Because from our perspective, if the 
industry proposes to do something, it is our goal to look at it 
and see if this does the Defense Department harm, and that is 
particularly interesting.
    In this particular aspect, it looks to me as if you end up 
with a company which is a much stronger competitor.
    Senator DeWine. And why is that?
    Mr. Oliver. Because you end up with two companies in the 
market which have nearly the same market share, and are well 
capitalized and have most of the business; in other words, you 
have two good competitors.
    Senator DeWine. OK.
    Mr. Oliver. And I like to have two strong, but I am not 
saying that was not the situation before. I do not know what 
the situation--I am saying----
    Senator DeWine. Right.
    Mr. Oliver. When I look at what the situation is coming to, 
I said I still have two strong competitors. That is good.
    Senator DeWine. OK. But you are not really saying, are you, 
that, as a basic principle, it is better to have two 
competitors than three?
    Mr. Oliver. No, sir. Absolutely not.
    Senator DeWine. I mean, they are all pretty strong. They 
all three have a fairly good market share at this point. So you 
go from three that are players to two that are players, right?
    Mr. Oliver. A difficult--that is part of the reason we did 
not look at that specific problem.
    Senator DeWine. All right. I appreciate that.
    Professor, do you want to comment on that? I see you making 
some notes there and nodding your head.
    Mr. Elhauge. Yes. I would like to comment on that and a 
number of other items.
    Senator DeWine. You go right ahead.
    Mr. Elhauge. One, there is a general argument being made 
that because of declining market demands producing industrywide 
overcapacity, a consolidation is merited and thus justified. 
That is just contrary to antitrust theory and economics. 
Overcapacity is not a justification for a merger. Competition 
will drive out overcapacity itself. If the firms have too much 
capacity, it is better to let the competition decide which 
capacity gets cut rather than have an agreement decide. Because 
when you have a merger and agreement, you never know whether 
the capacity is being cut because of an agreement to restrict 
output by the merger rather than because competition produced 
that answer.
    Then as to the claim that going from three firms to two 
firms is better because it creates stronger competition, first, 
I would note that in the large commercial market, and I 
understand the admiral has mainly focused on the military 
market, but in the commercial market for large planes, there 
will only be one who sells in the U.S. market. But even if you 
look worldwide, they will have 70 percent market share, the two 
firms combined after this merger, not 50 percent market share.
    And as a matter of theory, it is just not true that you 
necessarily have stronger competition, even for a market where 
both did have 50 percent, than you would have with two firms 
with 25 percent and one firm with 50 percent. You are better 
off having more competitors, as long as none of them is below 
the minimum efficient scale for operating. And there is nothing 
to indicate that 50 percent of the entire market is a minimum 
efficient scale for a company.
    Senator DeWine. There is nothing to indicate that, status 
quo, today, that any of the three cannot compete. I mean, in 
layman's terms, is that what you are talking or what you mean?
    Mr. Elhauge. Yes. Now, there are a number of other things I 
would like to comment on, if I could.
    One, is the claim that self-provision by the airframe 
makers of landing gears is a possibility. They can enter the 
market. Now, there is a lot I cannot tell you, because of the 
protective order, about the documents. But this and other 
things may urge the committee to get the document itself so it 
can make up its own mind. But I think that that is completely 
wrong. The entry barriers are extremely high.
    And if I may offer a homey analogy, this is a lot like 
saying to consumers, ``Well, there is a monopoly for cookies 
that are pre-made, but you can all make cookies from scratch 
yourself. So, really, there is no monopoly at all.'' The fact 
that buyers can self-provide something does not mean that a 
merger is not anti-competitive. Ever since Adam Smith, we have 
known that what makes markets efficient is a division of labor, 
so the most efficient producer is making the item.
    I have similar reactions, I guess, to the claim that there 
is no integrated landing systems market. Again, I do not think 
that that is right. I urge the committee to get documents to 
decide that question for itself.
    Senator DeWine. Say that again.
    Mr. Elhauge. I do not think it is right, and I urge the 
committee to get documents to decide that question----
    Senator DeWine. And the question is what, though?
    Mr. Elhauge. Whether there is an integrated landing systems 
market. I think there is a demonstrable one. There has been one 
on many medium planes, and I think it is clear that the trend 
is that there will be on large commercial planes.
    On the question of a side payment, again, the committee 
should get documents for itself. The only thing I can comment 
on, from publicly available knowledge, is that there was a CCIP 
price reduction given to Boeing after the merger was announced. 
All I was saying here in the testimony is that because of the 
possibility of payments, one should not rely excessively on 
buyer noncomplaints.
    So the analysis for that, and many other reasons, the 
analysis to figure out when buyer noncomplaints indicate a 
merger is efficient and when it does not, is itself an 
extremely complex undertaking. It is easier to figure out just 
what the market concentration is.
    And when you do review this question more closely, on some 
market share information given by the merging parties, I know 
they have a tendency to conflate different kinds of gear; nose 
gear with the main landing structure, small gears with the 
large and medium gears that were talked about here, and 
proposals versus actual sales. So all of that should be sorted 
out.
    Senator DeWine. Mr. Montalbine, as described in the 
testimony, AlliedSignal and Coltec currently have a strategic 
alliance agreement, which sets out the terms under which 
AlliedSignal and Coltec will work together to provide landing 
systems.
    It is my understanding that Goodrich has sworn under oath 
that it will meet all of the obligations between Coltec and 
AlliedSignal. And if that is the case, why are you concerned 
about the future relationship between Goodrich and 
AlliedSignal?
    Mr. Montalbine. We looked at the proposal, Senator, that 
Goodrich had made. And, essentially, they are asking us to 
trust them with highly sensitive competitive data on wheels and 
brakes.
    In order to do an integrated landing system bid like we 
do--if you could put our chart back up--right now with Menasco, 
Menasco provides all of their cost data for designing, and 
developing and testing the landing gear, and we give them all 
of our very sensitive pricing data with regard to the wheels 
and brakes. We also give them data, how much we are willing to 
invest, what our break-even points are, all of the pertinent 
cost data that would be extremely useful to BFGoodrich on the 
wheel and brake side.
    Quite frankly, we just do not trust them. We do not think 
it is a viable alternative. We see no way that we would feel 
comfortable, in dealing with a competitor like BFGoodrich, 
giving them sensitive data and hoping that, you know, they kept 
that data confidential.
    In addition, we have no way of knowing that the prices--
look in the post-merger area. We would have no way of knowing 
that the prices that we got from BFGoodrich/Coltec now were 
competitive. We have no way of auditing them or determining 
that we are getting a fair price on landing gear.
    I have a couple other points I would like to make here, if 
I could, Senator.
    Senator DeWine. Sure. Go right ahead.
    Mr. Montalbine. I think it is easy to be inadvertently 
misled, and everyone is focusing on who can manufacture landing 
gear.
    Mr. Oliver indicated, and rightfully so, that the F-18 C/D 
right now is being manufactured by Messier-Dowty. That is not 
really what the issue is here. The issue is the eroding design 
capability in this country. The F-18 C/D landing gear was 
originally designed by CPC. The C-17 was designed by CPC. The 
F-18 E/F was designed by AlliedSignal in 1992. Those landing 
gears right now are made by other companies.
    Who can make a landing gear and what their capability is is 
important. But the more important fact is, in the future, when 
large commercial transport or military aircraft or transport 
aircraft are envisioned to be built, who is capable of 
designing that equipment? And the answer is it comes down to 
three companies: CPC, Menasco and Messier-Dowty. And that is 
what needs to be focused on. That design capability is eroding 
significantly, and that is one of the major barriers to entry 
in this business.
    If you had a spare $300-or-so million to facilitate a plant 
and buy all of the tooling and equipment, which is about what 
it would cost to upgrade a plant and go into the business, your 
real obstacle would be finding the design engineers and the 
talent. You do not learn how to design landing gears in 
engineering school. You hire people with the basic rudimentary 
structural and dynamic capabilities, and those people learn 
over time, and it takes many, many years and many, many 
programs for that reputation to be assured with companies like 
Boeing or Menasco.
    To the point that the future is not integrated landing 
systems, again, I strongly urge the committee to look into the 
facts. There are currently 12 programs, either in the 
conceptual stage, pre-production or production phase, that were 
all let as integrated landing system contracts. It is clearly 
the wave of the future. And the prime reason for that is that 
if you look at the OEM's ability to oversee and ride herd, as 
Mr. Oliver said, on subcontractors, that ability is eroding 
significantly.
    Boeing has 220 people in their landing gear group at the 
beginning of this year, and they are laying off anywhere from 
six to seven a week for the entire year. Boeing has announced a 
reduction in force of 45,000 people. That capability to ride 
herd, and oversee and participate in landing gear design is 
significantly eroding, and this situation will only make it 
worse.
    Finally, I would just like to be clear on one point. 
AlliedSignal is committed to buy all or part of the Cleveland 
Pneumatic business. And maybe I was not clear before. I think 
the fact that BFG will not sell it, and even if they plan on 
closing it, will not sell it, is evidence to the fact that the 
value that it has to them and their intention to really grab 
hold of this monopoly, and that is something that is of real 
concern to us for the long-term viability of the wheel and 
brake business.
    Thank you.
    Senator DeWine. Mr. Oliver, you state in your testimony 
that the Defense Department would be monitoring developments in 
the wheels and brakes market and that you would, in fact, take 
action if you spot any discriminatory behavior. What are the 
types of steps that the Pentagon can take if it finds such 
behavior and that you might take?
    Mr. Oliver. There are several, sir. For example, recently 
in the ship business for the Navy, where we felt that the 
people had put together a dream team of all of the people who 
were the real competitors, both technically and politically, we 
just simply told them they could not do it. And we went in and 
renegotiated. I renegotiated two new teams with them.
    Subsequent to that, Dr. Gansler, the Under Secretary of 
Defense for Acquisition and Technology, put out a memorandum on 
January 5 on anti-competitive teaming, in which we talked about 
this particular point and talked about teams becoming too small 
and talked to our people about consent to subcontract, et 
cetera.
    And I wrote a memorandum on May 5, it turns out, on 
subcontractor competition, in which I talked to everybody about 
the necessity to watch this as we go down in number of 
suppliers.
    We also have the authority, in the event it does not work, 
to bring that to the Justice Department's attention for 
violation of antitrust law. We also can develop a second 
source, and we can also, since it is our drawings, provide them 
to other companies and have them made.
    With respect to that, there were some references to the 
joint agreement between BFGoodrich and Messier on wheels and 
brakes for Airbus aircraft. And I have a memorandum on that, 
essentially, which Dr. Gansler signed, to BFGoodrich saying, 
``While this does not adversely affect competition involving 
this Department, the Department would be considered, however, 
if this agreement were extended to include other aircraft and 
that extension could affect competition for military 
programs.''
    ``The Department would also be concerned if BFGoodrich and 
Messier-Dowty collaborate in areas that have been the subject 
of this merger review.''
    Consequently, we requested them not to do that and said we 
would be watching them and asked them to reply in writing. So 
that is reference to that issue.
    Mr. Reuther. Senator.
    Senator DeWine. Mr. Reuther.
    Mr. Reuther. The fact that the Defense Department may 
monitor the situation in the future is really not going to help 
the workers very much at the Cleveland plant or in South Bend 
if they lose their jobs in the near term. It becomes impossible 
to unscramble the egg and get these people their jobs back or 
to repair the damage to the communities. It is much better 
before that damage happens in the first place.
    Senator DeWine. Mr. Linnert.
    Mr. Linnert. Senator, a couple points. The question came up 
about design capability eroding, engineering. You asked the 
Department of Defense what they gain from this merger.
    I would like to point out something that Senator Kohl said. 
Coltec is a highly leveraged company. Coltec has not, on its 
own, been able to invest and reinvest significantly in new 
programs, new technology, new facilities. One of the good 
things about this merger is, on a combined basis, we will have 
a stronger balance sheet. We will be a higher quality supplier.
    One of the things Boeing, DOD, all of our customers look 
for is a stronger partner going forward. That is one of the 
benefits of this merger, and it is a benefit strategically of 
why we are doing it.
    I said before customers are our life blood. If we cannot 
partner with them to provide high-quality, cost-effective 
products, we are not going to be in business. That is what this 
merger is about, and that is what we tend to achieve.
    I find it also interesting the comment about Boeing and 
Boeing's support for our merger as being somehow tainted or is 
not as credible as it should be in terms of looking at 
competition. Yet when AlliedSignal and Honeywell announced 
their merger, that is one of the first things that they 
announced; that Boeing supported their merger. And, again, when 
you look at some of the aerospace markets that result in that 
merger, that deserves a close look, and that is probably why 
they asked Boeing ahead of time.
    So I find Boeing's support, as a buyer, as a disciplinarian 
in the markets, will be very key to this transaction, just as 
they must feel it is very key to theirs.
    Mr. Reuther. Senator.
    Senator DeWine. Mr. Reuther.
    Mr. Reuther. If I could respond. We are hearing, on the one 
hand, that this merger is going to create a stronger company 
that will be able to have more investment and create more jobs, 
and yet earlier we heard that they would not know for 8 months 
or so, after they saw data from Coltec, what their options 
would be and whether they are going to close the Cleveland 
facility or not.
    And I would just ask how can those two statements both be 
true? It seems to me that they are saying, well, there may be a 
stronger company for investment elsewhere, but not in 
Cleveland.
    Senator DeWine. Mr. Linnert, do you want to respond to 
that?
    Mr. Linnert. Yes. Absolutely.
    BFGoodrich is a company across a large--that operates 
businesses across a wide variety of markets. We will be a 
stronger company going forward. Clearly, the merger is about 
building a stronger platform.
    But it is our responsibility, when we close the merger, to 
take a look at those areas where efficiencies may be able to be 
obtained. We mentioned earlier the classic example, when you 
merge two companies, there is no need for two general counsels 
going forward, there is no need for two CEO's going forward. 
The staff headquarter's functions are always initially looked 
at, but we do need to look at the operations. It is not just 
landing gear, it is also sensors that we will take a look at. 
But, again, you look at the combined facilities operations when 
you have data available.
    To ask us to make a decision prior to that time is 
premature. It is just pure premature decisionmaking. We have 
said, as strongly as we can, we are going to study this, but no 
decision has been made.
    Now, one of the things that is going on in Cleveland is we 
have talked to the work force in Cleveland about different 
forms, changing the manufacturing processes, the work 
practices. There is dialogue going on about that. That dialogue 
would not be taking place if we had written Cleveland off. That 
is to improve Cleveland, to make it better, not to close it.
    Senator DeWine. I want to thank--Mr. Reuther.
    Mr. Reuther. If I could respond, again.
    Senator DeWine. Sure.
    Mr. Reuther. And I would again ask, if Daimler and Chrysler 
could immediately make an announcement about no layoffs in the 
United States in that merger, which is much larger, I find it 
difficult to understand why a similar commitment cannot be made 
in the context of this merger.
    And in terms of the comments about efficiencies and not 
needing two CEO's or two general counsels, we tend to notice 
that the CEO's and general counsels tend to get golden 
parachutes. And if they are willing to provide the same type of 
commitments to the rank and file workers in the Cleveland plant 
and in South Bend, we would be happy to accept that type of 
offer.
    Senator DeWine. On that note, we will----
    Mr. Linnert. Senator.
    Senator DeWine. Go ahead, Mr. Linnert.
    Mr. Linnert. The commitment to jobs, I am glad Chrysler 
could make that kind of commitment. AlliedSignal and Honeywell 
could not make that kind of commitment and neither can 
BFGoodrich. What we can commit to is a responsible study using 
all data available. We will do that. And as Mr. Reuther 
probably knows, whenever there have been reductions in force 
for any reason at Goodrich over the past few years, appropriate 
severance mechanism tools were used.
    Senator DeWine. Well, I think this has been a very helpful 
hearing. Any additional comments anyone feels they have to 
make? If not, we will--Professor, are you OK over there?
    Mr. Elhauge. Well----
    Senator DeWine. You look like you are ready to go. I just 
did not want to shut you off.
    Mr. Elhauge. I guess I will say a few things, then.
    One is that that this merger is being justified as 
efficient, and it is hard to see how it could be so justified, 
if they have not studied the question, as they say today.
    Second, it is just common sense, the undisputed fact is, at 
the end of the day, we have two firms in this market 
financially related to each other with a joint venture. And I 
would just submit that common sense indicates that is not a 
competitive market.
    Senator DeWine. Let me say I want to thank you all again 
very much. Let me say I think this has been a very helpful 
hearing. I appreciate your patience. I appreciate your time. I 
think this has provided the subcommittee with really some 
valuable insight into the competitive implications of this deal 
and the impact it may have on the national security of our 
country.
    This subcommittee will continue to monitor and provide 
oversight as the defense industry continues to consolidate 
because it is critically important that these mergers are 
thoroughly and carefully examined.
    Specifically, I might add, that we look forward to 
discussing this merger, in particular, in more detail in 
private with the Defense Department. And maybe we can follow 
up, Mr. Oliver, with some of the things that we could not get 
into in a public hearing today.
    I must say, though, in conclusion, that I am disappointed 
in the amount of information we received today about the 
prospects of the Goodrich Cleveland plant. I had hoped, and 
frankly had expected, to hear a clear, candid explanation of 
the Goodrich plans for the Cleveland facility.
    While I think that Mr. Linnert was able to provide a little 
more of an explanation, I am still not satisfied. The people of 
northeast Ohio, the Goodrich workers, their families, deserve 
an answer, and they deserve an answer as clearly as possible 
and as soon as possible. And I am going to continue to keep 
working to see that they get that answer.
    Let me, again, thank all of you very much. Our hearing is 
now adjourned.
    Thank you.
    [Whereupon, at 4:14 p.m., the subcommittee was adjourned.]

                                

  
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