A major problem of antitrust is the lack of consistent agreement among economists, and among legislators and judges, as to the acceptability of corporate bigness and economic concentration. Thus, since the passage of the Sherman Act, the Supreme Court struggled with changing economic conditions, seeking to preserve the small competitor, and to clarify such concepts as substantial lessening of competition and trends toward concentration. Then, the great merger wave of the 1950s and 1960s resulted in a concentration of economic power and potential threat to competition greater than previously experienced in American history. The Supreme Court, through its findings in the 16 merger cases that came before it during the Kennedy-Johnson years, established 30 percent as the maximum acceptable market share resulting from merger, stated that it would not tolerate reciprocity or cross- subsidization, and gave notice that it would consider the elimination of potential entrants, including that accomplished by joint venture, to be anticompetitive. In addition, although no pure conglomerate merger case had come before it, the Court also indicated in the Brown Shoe case that it considered the provisions of Section 7 to be applicable to conglomerate mergers. Thus, in the absence of a strong Executive and Congressional commitment to antitrust, the Supreme Court forged a firm foundation for aggressive legal and legislative action against further concentration.
President-elect Richard Nixon appointed a study group, the Task Force on Productivity and Competition, chaired by University of Chicago Professor George J. Stigler, to advise him on antitrust, mergers, and the conglomerate phenomenon. Whereas the group appointed by President Johnson had expressed its concern with the increasing number of mergers and concentration in the economy, and had recommended corrective legislation, 1 the Stigler Report saw little or no threat to competition in these events. The Task Force announced its opposition to new legislation to deconcentrate highly concentrated oligopolistic industries. It also