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Enforcement Guidelines on the Abuse of Dominance Provivions - Part 3: The Elements of Subsection 79(1)

Table of Contents

3.1 Statutory Provision
3.2 The Elements
 

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3.1 Statutory Provision

Subsection 79(1) of the Act provides:

Where, on application by the Commissioner, the Tribunal finds that

1. one or more persons substantially or completely control, throughout Canada or any area thereof, a class or species of business,
2. that person or those persons have engaged in or are engaging in a practice of anti-competitive acts, and
3. the practice has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market, the Tribunal may make an order prohibiting all or any of those persons from engaging in that practice.

Thus, section 79 sets out the three essential elements. Paragraph 79(1)(a) clearly focusses the provisions on market power ? the concern that a firm or group of firms may be able to enhance or entrench its market power. The Bureau considers market power to be the ability to profitably maintain prices above competitive levels (or similarly restrict non-price dimensions of competition) for a significant period of time, normally one year. The law does not imply that the mere existence of market power will give rise to grounds for a remedial order by the Tribunal. A dominant position from which a firm charges prices above the competitive level is not by itself grounds for an application under section 79. The abuse of dominance provisions are not intended to regulate prices, but rather to ensure that anti-competitive conduct is properly addressed.

Paragraph 79(1)(b) further qualifies that the provisions refer to behaviour that is anti-competitive. It is the abuse of a dominant position that gives rise to scrutiny under the Act. Examples of business practices that constitute anti-competitive acts are listed in section 78. The list, although broad, is non-exhaustive. Accordingly, the Tribunal has the latitude to address anti-competitive acts not defined in section 78 and has done so in a number of cases. In order to help differentiate between legitimate competitive activity and that which constitutes abuse within the meaning of section 79, the practices listed in section 78 all involve an element of purpose, object or design to undermine competition. Part 4 of this document provides more detail on these anti-competitive acts.

Finally, paragraph 79(1)(c) imposes a requirement of proof that the business conduct has had, is having or is likely to have the effect of "preventing or lessening competition substantially." This places the focus squarely on adverse effects on competition, rather than on individual competitors.

3.2 The Elements

3.2.1 "One or more persons substantially or completely control, throughout Canada or any area thereof, a class or species of business"

This paragraph of the Act contains a number of elements that need to be separately clarified: (i) the existence of a class or species of business in Canada or any area thereof; (ii) the meaning of "control"; and (iii) the meaning of "one or more persons."

3.2.1(a) "Class or species of business" ? Product Market Definition

A precondition for assessing market power is identifying existing competitors that are likely to constrain the ability of the firm or firms to profitably raise prices or otherwise restrict competition. The 1986 provisions adopted the term "class or species of business" rather than the term "market" in the context of the control element. The Bureau approach is to consider defining a "class or species of business" as synonymous with defining a relevant product.¹² The analysis begins by examining the product market(s) within which the alleged abuse of dominance has occurred or is occurring. As in other areas of competition law, the examination then turns to determining whether competition from other product sources limits the ability of the firm(s) in question to exercise market power. The analysis focusses on whether there are close substitutes for the product(s) in question, such that buyers would turn to these substitutes in the event that the product price was raised above competitive levels by a significant amount for a non-transitory period of time. In general, a 5 percent real price increase above competitive levels lasting one year is considered a significant and non-transitory amount.¹³

This approach was accepted by the Tribunal in Laidlaw,¹⁴ and later in Nielsen,¹⁵ where the Tribunal set its basic approach to product market definition:

Direct evidence of switching behaviour in response to small changes in relative price would provide proof of substitutability. Where price and quantity changes are not in evidence, as was true in the instant case, it is necessary to answer the question less directly by examining the evidence of both buyers and suppliers regarding the characteristics, the intended use and the price of (the product market in question).¹⁶

Price increases are not the only indicator used to define product markets.¹⁷ The Bureau also looks at many qualitative factors when determining the appropriate product and geographic market definition under the abuse of dominance provisions. These include:

• The views, strategies, behaviour and identity of buyers. Whether buyers have substituted between products in the past and whether they plan on doing so in the future can indicate whether a price increase is sustainable.
• Trade views, strategies and behaviour. Third parties who know the industry in question may provide helpful information regarding past and likely future developments that help to define the relevant market.
• End use. Functional interchangeability is generally a necessary, but not a sufficient, condition that must be met for two products to warrant inclusion in the same relevant market.
• Physical and technical characteristics. In general, the greater the value that buyers place on the actual or perceived unique physical or technical characteristics of a product, the more likely it is that the product will be found to be in a distinct relevant market.
• Switching costs. The extent to which the transaction costs that buyers would have to incur in order to retool, repackage, adapt their marketing, breach a supply contract, learn new procedures and so forth may be sufficient to make switching an unlikely response to a significant and non-transitory price increase.
• Price relationships and relative price levels. The absence of a strong correlation in price movements between two products over a significant period of time generally suggests that the products are not in the same relevant market. Similarly, if the prices of one firm have historically constrained the price movements of another, this is an indication that the two firms' products compete in the same market.

3.2.1(b) "Throughout Canada or any area thereof" ? Geographic Market Definition

An analysis of the universe of existing competition also has a geographic dimension. The Bureau considers the determination of "throughout Canada or any area thereof" as equivalent to defining the relevant geographic market.¹⁸ This is consistent with the jurisprudence.¹⁹

In addition to drawing on some of the available quantitative techniques used in product market definition, the Bureau also considers certain qualitative factors when determining geographic market definition under the abuse of dominance provisions:

• The views, strategies, behaviour and identity of buyers. Considerations relating to convenience or the particular characteristics of the product (e.g. fragility, perishability) may influence a buyer's choice of supplier in the event of prices rising above competitive levels.
• Trade views, strategies and behaviour. Third parties who know the industry in question may provide helpful information regarding past and likely future industry developments that help to define the relevant market.
• Switching costs. The extent to which the transaction costs that buyers would have to incur in order to retool, repackage, adapt their marketing, breach a supply contract, learn new procedures and so forth may be sufficient to make switching an unlikely response to a significant and non-transitory price increase.
• Transportation costs. In general, where prices in a distant area have historically been higher than prices in the relevant geographic area by an amount that exceeds the transportation costs, this is usually an indication that the distant area is in a separate relevant market. However, this may not be conclusive, because the postulated significant and non-transitory price increase above competitive levels may elevate prices to a level above the distant price plus transportation costs. Where it is profitable for distant sellers to ship the product into the relevant market, it is generally assumed that the supplier would likely do so.
• Price relationships and relative price levels. The absence of a strong correlation in price movements between two geographic areas over a significant period of time generally suggests that the areas are not in the same relevant market. Similarly, if the prices of distant sellers have historically constrained the price movements of local sellers, this indicates that the distant and local sellers compete in the same market.
• Shipment patterns. Significant shipments from one region to another generally suggest that the two regions are in the same geographic market. However, past trading patterns can be a poor indicator of the extent to which sellers in one area constrain sellers in another area, particularly where there is an absence of shipping.
• Foreign competition. While the above-noted principles apply equally to domestic and international sources of competition, there may be other considerations when examining the influence of foreign-based suppliers, including tariffs, quotas, regulations, antidumping complaints or duties, government procurement policies, intellectual property laws, exchange rate fluctuations, and international product standardization.

3.2.1(c)The Cellophane Fallacy

In defining both product and geographic markets in the context of allegations of an abuse of dominance, the Bureau will assess the extent to which prices would likely be lower than prevailing prices in the absence of the alleged anti-competitive acts. This means that the current price may not be the appropriate tool to use in defining the relevant market in which the alleged dominant firm competes. It is possible that some products that appear to be in the market would not be included in the market at price levels that would have existed in the absence of the anti-competitive practices. To include these products in a market definition would effectively overstate the product market from an antitrust perspective. This is because these products do not discipline the market but rather enter the market only at price levels that are higher than normal competitive levels. A similar situation occurs in defining the geographic parameters of the market. If the market is defined in terms of price levels reflecting a dominant player, the geographic parameters of the market will be overstated, as they will include areas that could not be included if competitive price levels prevailed. This problem, associated with measuring markets where it is alleged that dominance prevails, was first identified in the context of a case in the United States involving the producers of cellophane. As a result, it is referred to as the "cellophane fallacy."

Recognizing that market power exists, the Bureau will define the parameters of the product and geographic markets by first estimating what the approximate price level for the product would be in the absence of the alleged anti-competitive practices. With this estimate, the relevant markets can be defined more accurately.

3.2.1(d) "Substantially or completely control" ? Market Power

Once the universe of existing competitors is delineated, it is necessary to assess the extent to which these rivals constrain any market power that the dominant firm(s) might otherwise possess. The Bureau considers control to be synonymous with market power, where market power is the ability to profitably set prices above competitive levels for a considerable period of time.²⁰ Market power may also be defined with respect to a material, non-transitory reduction in other factors of competition such as service, quality, variety, advertising and innovation. For ease of reference, market power is referred to here with respect to price increases but should be understood to also include non-price factors of competition. The Bureau normally regards a "considerable" period of time for the purposes of establishing market power to be one year. This does not mean that the Bureau will not pursue an abuse of dominance case where the exercise of market power has been in place for less than one year. In such instances, there is an analysis of the likelihood that this exercise of market power would continue if the Bureau did not intervene.

The Bureau recognizes that it is difficult to measure market power directly; consequently, a number of indicators ? both qualitative and quantitative ? of market power are normally relied upon. These indicators include, but are not necessarily limited to, the following:

• market share, including share stability and distribution;
• barriers to entry, including the conduct allegedly engaged in by the dominant firm(s); and
• other market characteristics, including extent of technological change, extent of excess capacity, and customer or supplier countervailing power.

Market Share

The case law indicates that one of the most important factors of market power, along with barriers to entry, is market share. ²¹ There is not, however, a definitive numeric market share that implies that a firm has market power. The Bureau has adopted the view that high market share is usually a necessary, but not sufficient, condition to establish market power.

With the focus on control by a single firm or group of firms, the purpose of the market power analysis is to measure the extent to which existing competitors (identified in the market definition exercise described previously) and/or potential competitors (discussed in the following section on entry barriers) or any other relevant factors (such as countervailing customer power) are likely to constrain any exercise of market power. When evaluating joint control, the analysis must consider the factors surrounding the scope and the nature of the coordination of the group of firms that jointly controls the market.

All other things being equal, the larger the share of the market held by remaining competitors, the less likely it is that the firm or group of firms in question would have been, or would be, able to exercise market power. Where remaining competitors have a large market presence, customers could pursue several competitive alternatives if a firm or group of firms attempts to increase price. Defection of a significant fraction of a firm's customer base may be enough to make an increase in price above competitive levels unprofitable.²²

In the contested abuse of dominance cases heard to date,²³ the market shares of the dominant firms were very high, suggesting that in these instances customers had few alternatives to choose from in the event that the dominant firm increased price above competitive levels or otherwise substantially lessened competition.²⁴ In Tele-Direct, the Tribunal stated that it would require evidence of "extenuating circumstances, in general, ease of entry" to overcome a prima facie determination of control based on market shares of 80 percent and higher in local telephone directory advertising markets. In Laidlaw, the Tribunal observed that a market share of less than 50 percent would not give rise to a prima facie finding of dominance, but this does not imply that market power could never be found below 50 percent.

The Bureau considers that a market share of less than 35 percent will normally not give rise to concerns that a firm has engaged, or is engaging in, a practice of anti-competitive acts that is preventing or lessening competition substantially in a market. If a firm has a 35 percent or higher market share, the Bureau will normally continue its investigation.

The two cases involving joint dominance²⁵ were dealt with under consent orders where the element of joint dominance was taken as a given. As a guide, the Bureau will continue its examination when the combined market share of the group of firms alleged to be jointly dominant is equal to or exceeds 60 percent.

In addition to the dominant firm's market share, the distribution of the remaining market across competitors is also relevant. Other things being equal, a firm's likelihood of being able to sustain prices above competitive levels increases with its market share, and as the disparity between its market share and the market shares of its competitors increases. Consider the position of a single firm that holds 55 percent of a relevant market. That firm's ability to exercise market power may be at a certain level when it faces one competitor with a 45 percent market share, but at a very different level when facing a disparate group of smaller rivals, no one of which has a share larger than 10 percent.

In summary, the Bureau's general approach with regard to market share is as follows:

• A market share of less than 35 percent will generally not give rise to concerns of market power or dominance.
• A market share of 35 percent or more will generally prompt further examination.
• In the case of a group of firms alleged to be jointly dominant, a combined market share of 60 percent or more will generally prompt further examination.

Barriers to Entry

As noted above, high market share is not in itself sufficient to prove market power. Without barriers to entry, any attempt by a firm with high market share to exercise market power is likely to be met with entry or expansion of existing firms such that the firm with the high market share loses enough customers to its rivals that it is not profitable to attempt to raise prices above competitive levels. In general, entry is likely to be prevented by the presence of absolute cost differences between the incumbent and the entrant, or the need to make investments that are not likely to be recovered if entry is unsuccessful. These investments are referred to as "sunk costs." As the Tribunal noted in Laidlaw, the term "barriers to entry" carries with it the connotation of sustainability.²⁶ An entrant must not only be able to enter, but be able to become a viable competitor.

As the market shares of the dominant firm(s) rise, the jurisprudence articulates a relationship between market shares and the standard of proof that will be used in assessing barriers to entry. The Tribunal notes this in both Nielsen and Tele-Direct. In Tele-Direct, where market shares were 80 percent or higher, the Tribunal stated that it would require evidence of "extenuating circumstances, in general, ease of entry" to overcome a prima facie determination of control.²⁷

Let us consider some examples of the issues of entry analysis examined in past Tribunal cases. In NutraSweet, the Tribunal found that barriers to entry into the aspartame market were high because of process patents associated with producing aspartame held by incumbents (the patent for aspartame has now expired in Canada), significant economies of scale and sunk costs, and a long start-up time of about two years. In Laidlaw, the Tribunal found that barriers to entry into the commercial waste collection industry were not generally high; however, Laidlaw's various contracting practices had the effect of raising barriers to entry. In Tele-Direct, the Tribunal concluded that barriers to entry ? aside from targeted "niche" entry ? to the telephone directory market were significant, given the requirement of significant sunk costs and the reputation of the incumbent, as well as the incumbent's affiliation with telephone companies.

3.2.1(e) "One or more persons" ? Joint Dominance

The wording of the Act clearly contemplates cases where a group of unaffiliated firms may possess market power even if no single member of the group is dominant by itself. In joint dominance cases, there are three sources of competition that can defeat the profitability of a price increase. These are competition from existing rivals outside the allegedly jointly dominant group; competition from potential rivals (i.e. entrants) outside the allegedly jointly dominant group; and competition from within the allegedly jointly dominant group. Given this, an additional element of proof is necessary to establish control, or market power, by more than one firm, as compared to the case of a single dominant firm.

The jurisprudence provides only limited insights into the additional evidence necessary to establish control by a group of firms. To date, there have been only two cases involving joint dominance under the Act.²⁸ In both instances, the fact that joint dominance existed was taken as a given and was supported by an explicit agreement.

A group of firms that collectively possesses market power may be able to coordinate its actions in a manner that allows the market price to be profitably increased above the non-coordinated price levels without the firms entering into an explicit agreement. Firms within an oligopoly normally base their decisions on how their rivals have behaved in the past. In addition, firms recognize that their current decisions may affect their rivals' future reactions. The fact that firms recognize these interactions over a longer time period results in competitive response strategies becoming more complex. It is possible for firms to act in a "consciously parallel" fashion, thereby achieving higher profits than would be the case in a competitive environment.

The jurisprudence in respect of the criminal conspiracy provisions is clear in not condemning "conscious parallelism."²⁹ The Bureau has adopted a similar position with respect to the abuse provisions, recognizing that something more than mere conscious parallelism must exist before the Bureau can reach a conclusion that firms are participating in some form of coordinated activities.

The ability of a group of firms to coordinate actions without entering into an explicit agreement can be addressed under the abuse provisions. To infer control by a group of firms, the Bureau will consider the following:

1. whether the group of firms collectively accounts for a large share of the relevant market;
2. any evidence that the alleged coordinated behaviour is intended to increase price or is for the purpose of engaging in some form of anti-competitive act;
3. any evidence of barriers to entry into the group, or barriers to entrants into the relevant market;
4. any evidence based on the particular facts of the case that members of the group have acted to inhibit intra-group rivalry;³⁰ and
5. any evidence that a significant number of customers cannot exercise countervailing power to offset the attempted abuse.

3.2.2 "Have engaged in or are engaging in a practice of anti-competitive acts"

The second element of the abuse of dominance provisions examines whether "that person or those persons have engaged in or are engaged in a practice of anti-competitive acts." As noted above, the law does not imply that the mere existence of market power will give rise to grounds for a remedial order by the Tribunal. Paragraph 79(1)(c) provides that substantial or complete control (assuming it has been shown to exist) raises competition issues only when it is used in a manner that lessens or prevents competition substantially. Thus, it is the abuse of a dominant position that gives rise to scrutiny under the Act.

Paragraph 79(1)(b) can be usefully divided into two parts. The first part involves showing that there is or has been "a practice." The second part requires that it be shown that there is an anti-competitive act(s). In regard to the latter part of the element, illustrative examples of business practices that could constitute anti-competitive acts are provided in section 78 (see Appendix I).

3.2.2(a) Practice

The term "practice" was considered in the context of single firm dominance in the NutraSweet case, where the Tribunal adopted a broad view of the term and established that different individual anti-competitive acts, taken together, may constitute a practice.³¹

The Bureau considers that while a practice is normally more than an isolated act, it may also constitute one occurrence that is sustained and systemic or that has had a lasting impact on the state of competition. For example, a long-term exclusionary contract may effectively prevent or lessen competition even though the contract itself constitutes only one episode of an anti-competitive act. In joint abuse cases, an assessment of whether the anti-competitive act(s) is sustained and systemic, or has had a lasting impact on the state of competition, would need to consider the pattern of business conduct by several firms.

The wording of the statute clearly indicates that the negative effects on competition may be past, present or future effects. A remedial order may be sought in respect of past practices. However, under subsection 79(6), the Commissioner cannot bring an application before the Tribunal with regard to practices that have ceased for three years or more.

3.2.2(b) Anti-Competitive Acts

Section 78 of the Act provides a non-exhaustive list of anti-competitive acts. In addition to these acts, there is some jurisprudence on anti-competitive acts not listed in section 78. The acts in section 78 all lessen competition when engaged in by a dominant firm for an anti-competitive purpose. The Tribunal tests for anti-competitive purpose by asking whether an act is done for a predatory, exclusionary or disciplinary reason.³² The purpose or intent of the act may be proven by an inference or a conclusion to be drawn from the facts established in evidence. The verbal or written statements of the personnel of a company are likely to establish subjective intent. Consideration of the act itself may lead to an inferred purpose, because persons are assumed to intend the necessary and foreseeable consequences of their acts. As the Tribunal noted in Nutrasweet,³³ in most cases the purpose of the ac t will have to be inferred from the circumstances.

Section 79 does not, as section 96 of the merger provisions does, provide for an explicit efficiency defence in assessing acts that are considered to be anti-competitive. In situations where the Bureau is satisfied that an anti-competitive act has been established that meets the threshold of substantially lessening or preventing competition in a market, the Bureau will try to resolve the competition issue with the party. If this effort is unsuccessful, the Bureau will bring the matter before the Tribunal.

3.2.3 "The practice has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market"

The requirement of "preventing or lessening competition substantially in a market" puts the focus on the impact on competition rather than on competitors. As the Tribunal noted in Tele-Direct, "seizing market share from a rival by offering a better product or lower prices is not, in general, exclusionary since consumers in the market are made better off."³⁴

The meaning of "lessening competition substantially" is established in the case law. The Tribunal in NutraSweet stated that "in essence, the question to be decided is whether the anti-competitive acts engaged in by NSC (NutraSweet) preserve or add to NSC's market power."³⁵

3.2.4 Assessing the Impact of Anti-Competitive Acts

The preservation or enhancement of market power can be achieved in a number of ways. The Bureau follows a non-exhaustive approach in assessing the effect on competition of various types of anti-competitive acts.

A firm can maintain or enhance market power by erecting or strengthening barriers to entry,³⁶ thus inhibiting potential competitors from challenging the market power of the dominant firm. In examining anti-competitive acts that involve the creation or enhancement of barriers of this type, the Bureau will focus its analysis on determining the state of competition in the market in the absence of these acts. If it can be demonstrated that, but for the anti-competitive acts, an effective competitor or group of competitors would emerge within a reasonable period of time to challenge the dominance of the firm(s), the Bureau will conclude that the acts in question constitute a substantial lessening or prevention of competition. In assessing the potential to provide effective competition with the removal of the anti-competitive acts, the Bureau considers a reasonable time period to be two years, consistent with the time frame considered acceptable for entry into a market.³⁷

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¹² In NutraSweet the Tribunal concluded that delineating a "class or species of business" is equivalent to defining a relevant product market.
¹³ This is consistent with the approach to defining markets outlined in the Bureau's Merger Enforcement Guidelines.
¹⁴ Canada (Director of Investigation and Research) v. Laidlaw Waste Systems Ltd. (1992), 40 C.P.R. (3d) 289 (Comp. Trib.) (hereinafter Laidlaw).
¹⁵ Canada (Director of Investigation and Research) v. The D&B; Companies of Canada Ltd. (1995), 64 C.P.R. (3d) 216 (Comp. Trib.) (hereinafter Nielsen).
¹⁶ Nielsen, ibid. at 241.
¹⁷ A variety of quantitative techniques is available, including price correlation analysis, price elasticity analysis and diversion ratio analysis.
¹⁸ Despite the reference to "throughout Canada or any area thereof," the relevant geographic market, from an antitrust perspective, may include territory outside of Canada.
¹⁹ In NutraSweet, the Tribunal stated that the relevant geographic market encompassed "an area (that) is sufficiently isolated from price pressures emanating from other areas so that its unique characteristics can result in prices differing significantly for any period of time from those in other areas." See supra note 2 at 20-21 .
²⁰ This approach was adopted by the Tribunal in NutraSweet, supra note 2, Laidlaw, supra note 14, and Nielsen, supra note 15.
²¹ In NutraSweet, supra note 2 at 28, the Tribunal states: "While this (the ability to set prices above the competitive level) is a valid conceptual approach, it is not one that can readily be applied; one must ordinarily look to indicators of market power such as market share and entry barriers. The specific factors that need to be considered in evaluating control will vary from case to case."
²² The ability to defect may be mitigated by the speed and ease with which rival firms are able to accommodate increased demand for their products as the market price increases.
²³ The cases are NutraSweet, supra note 2; Laidlaw, supra note 14; Nielsen, supra note 15; and Canada (Director of Investigation and Research) v. Tele-Direct (Publications) Inc. (1997), 73 C.P.R. (3d) 1 (Comp. Trib.) (hereinafter Tele-Direct).
²⁴ NutraSweet supplied 95 percent of the aspartame market in Canada. Laidlaw was found to have market shares between 87 percent and 100 percent in various commercial waste collection markets. Nielsen had a 100 percent share of the market for scanner-based market tracking services, providing a prima facie finding of market power, or control, that required evidence of the absence of barriers to entry for rebuttal.
²⁵ Canada (Director of Investigation and Research) v. Bank of Montreal (1996), 68 C.P.R. (3d) 527 (Comp. Trib.) (hereinafter Interac) and Canada (Director of Investigation and Research) v. AGT Director Ltd. et al. (1994), C.C.T.D. No. 24 Trib. Dec. No CT9402/19 (hereinafter CANYPS).
²⁶ Laidlaw, supra note 14 at 74.
²⁷ Tele-Direct, supra note 23 at 83.
²⁸ Interac and CANYPS, supra note 25.
²⁹ See R. v. Canadian General Electric (1974) 17 C.C.C. (2d) 433 and R. v. Armco (1974) 21 C.C.C. (2d) 129.
³⁰ Facilitating practices may be aimed at improving the ability of firms to coordinate their actions, or at detecting deviations from the terms of coordination.
³¹ NutraSweet, supra note 2 at 23.
³² NutraSweet, supra note 2 at 34.
³³ NutraSweet, supra note 2 at 35.
³⁴ Tele-Direct, supra note 23 at 196.
³⁵ NutraSweet, supra note 2 at 47.
³⁶ In the Laidlaw case, the Tribunal concluded that Laidlaw's acquisition of 100 percent of the market in some instances, along with the exclusivity provisions and litigation threats that raised barriers to entry, lessened competition substantially. In Nielsen, the Tribunal noted that Nielsen's contracts with its customers were long term and came up for renewal on a staggered basis; an entrant could not obtain the access to a broad supply of data required for effective entry. The Tribunal found that the practices lessened competition substantially.
³⁷ This two-year time frame is consistent with the approach to analysing barriers to entry adopted in the Bureau's Merger Enforcement Guidelines.