FEDERAL TRADE COMMISSION

Agency decision

Ask Donna

What actually matters in this document.

Text

DEPARTMENT OF JUSTICE

BUREAU OF COMPETITION

ANTITRUST DIVISION

ANNUAL REPORT TO CONGRESS

FISCAL YEAR 2004

Pursuant to Subsection (j) of Section 7A of the Clayton Act

Hart-Scott-Rodino Antitrust Improvements Act of 1976

(Twenty-Seventh Report)

Deborah Platt Majoras

Chairman

Federal Trade Commission

Thomas O. Barnett

Acting Assistant Attorney General

Antitrust Division

INTRODUCTION

The Hart-Scott-Rodino Antitrust Improvements Act of 1976 ("HSR Act" or the "Act"),

together with Section 13(b) of the Federal Trade Commission Act and Section 7A of the

Clayton Act, gives the Federal Trade Commission (the "Commission") and the Antitrust

Division of the Department of Justice (the "Antitrust Division" or "Division") the opportunity

to obtain effective preliminary relief against anticompetitive mergers and to prevent interim

harm to competition and consumers. The premerger notification program was instrumental in

detecting transactions that were the subject of the numerous enforcement actions brought in

fiscal year 2004 to protect consumers -- individuals, businesses, and government -- against

anticompetitive mergers.

The Commission and the Antitrust Division continue their efforts to promote

competition by identifying and investigating those mergers and acquisitions that raise

potentially significant competitive concerns. In fiscal year 2004, 1,454 transactions were

reported under the HSR Act, representing about a 43 percent increase from the 1,014

transactions reported in fiscal year 2003 and about a 70 percent decrease from the 4,926

transactions reported in fiscal year 2000, the last full fiscal year under the previous reporting

thresholds.1 (See Figure 1 below.)

HSR MERGER TRANSACTIONS REPORTED

FISCAL YEARS 1995 -2004

NUMBER OF TRANSACTIONS

6,000

4,728

5,000

4,642

4,926

3,702

4,000

2,816

3,000

3,087

2,376

2,000

1,187

1,454

1,014

1,000

FISCAL YEARS

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

Figure 1

The decrease in the number of reportable transactions since fiscal year 2000 is, to a considerable

extent, a result of the significant statutory changes to the HSR Act that took effect on February 1, 2001. The

legislation raised the size-of-transaction threshold from $15 million to $50 million and made other changes to the

filing and waiting period requirements. Section 630 of the Department of Commerce, Justice, and State, the

Judiciary, and Related Agencies Appropriations Act, FY 2001, Pub. L. No. 106-553, 114 Stat. 2762. See also

Appendix A.

During the year, the Commission challenged fifteen transactions, leading to ten

consent orders, one administrative complaint, one litigated case, and three abandoned

transactions. The Commission also authorized staff to seek injunctive relief in one matter.

Most notably, the Commission challenged the proposed merger of Sanofi-Synthelabo and

Aventis.2 The proposed merger would have substantially reduced competition and raised

prices for factor Xa inhibitors, used to treat and prevent venous thromboembolism and other

conditions related to excessive blood clot formation; cytotoxic drugs used to treat colorectal

cancer; and prescription drugs used to treat insomnia. The Commission also challenged the

proposed acquisition by Magellan Midstream Partners, L.P. of certain pipeline and terminal

assets of Royal Dutch Petroleum Company from Shell Oil Company.3 The transaction, as

proposed, would have eliminated direct competition between the parties, resulting in the

likelihood that the prices of gasoline, diesel fuel, and other light petroleum products in the

Oklahoma City metropolitan market would have increased.

The Antitrust Division challenged nine merger transactions, leading to one litigated

case, five consent decrees, two abandoned transactions, and one other transaction that was

restructured after the Division informed the parties of its antitrust concerns relating to the

transaction. The Division’s notable merger challenges included Oracle Corporation’s

acquisition of PeopleSoft, Inc.4 The Division filed a complaint alleging that the merger would

reduce from three to two the number of competitors for high-function financial management

and human resource management software. After a trial, a federal district court declined to

block the transaction. The Division also challenged the proposed acquisition of Concord EFS,

Inc. by First Data Corporation.5 The proposed transaction would have substantially reduced

competition among PIN debit networks, and resulted in consumers paying higher prices for

goods and services from merchants that offer debit transactions.

In fiscal year 2004, the Commission’s Premerger Notification Office ("PNO")

continued to respond to thousands of telephone calls seeking information concerning the

reportability of transactions under the HSR Act and the details involved in completing and

filing the Notification and Report Form ("the filing form"). The HSR website,

www.ftc.gov/bc/hsr/hsr.htm, continued to provide improved access to information necessary

to the notification process. The website includes such information as the premerger

notification filing form and instructions, the premerger notification statute and rules, grants of

early termination, filing fee instructions, HSR events, training materials for new HSR

practitioners, tips for completing the filing form, procedures for submitting postconsummation filings, frequently asked questions regarding the HSR filing requirements, and

other useful information. The website is the paramount source of information for HSR

practitioners seeking information on changes to the Act and amendments to the premerger

See infra p. 14.

See infra p. 16.

See infra p. 10.

See infra p. 9.

rules, including speeches, press releases, summaries and highlights, and Federal Register

notices about the amendments. The website also includes a database of informal

interpretation letters, giving the public ready access to PNO staff interpretations of the

premerger notification rules and the Act. As always, PNO staff continues their efforts to

assist HSR practitioners and readily provides them with needed information.

BACKGROUND OF THE HSR ACT

Section 201 of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub. L.

No. 94-435, amended the Clayton Act by adding a new Section 7A, 15 U.S.C. §18a.

Subsection (j) of Section 7A provides:

Beginning not later than January 1, 1978, the Federal Trade Commission, with

the concurrence of the Assistant Attorney General, shall annually report to the

Congress on the operation of this section. Such report shall include an

assessment of the effects of this section, of the effects, purpose, and need for

any rules promulgated pursuant thereto, and any recommendations for

revisions of this section.

This is the 27th annual report to Congress pursuant to this provision. It covers fiscal

year 2004 -- October 1, 2003 through September 30, 2004.

In general, the Act requires that certain proposed acquisitions of voting securities or

assets must be reported to the Commission and the Antitrust Division prior to consummation.

The parties must then wait a specified period, usually 30 days (15 days in the case of a cash

tender offer or a bankruptcy sale), before they may complete the transaction. Whether a

particular acquisition is subject to these requirements depends upon the value of the

acquisition and, in certain acquisitions, the size of the parties as measured by their sales and

assets. Small acquisitions, acquisitions involving small parties, and other classes of

acquisitions that are less likely to raise antitrust concerns are excluded from the Act’s

coverage.

The primary purpose of the statutory scheme, as the legislative history makes clear, is

to provide the antitrust enforcement agencies with the opportunity to review mergers and

acquisitions before they occur. The premerger notification program, with its filing and

waiting period requirements, provides the agencies with both the time and the information

necessary to conduct this antitrust review. Much of the information for a preliminary antitrust

evaluation is included in the notification filed with the agencies by the parties to the proposed

transactions and is immediately available for review during the waiting period.

If either agency determines during the waiting period that further inquiry is necessary,

however, the agency is authorized by Section 7A(e) of the Clayton Act to issue a request for

additional information and documentary material (a “second request"). The second request

extends the waiting period for a specified period after all parties have complied with the

request (or, in the case of a tender offer or a bankruptcy sale, after the acquiring person

complies). This additional time provides the reviewing agency with the opportunity to

analyze the information and to take appropriate action before the transaction is consummated.

If the reviewing agency believes that a proposed transaction may substantially lessen

competition, it may seek an injunction in federal district court to prohibit consummation of

the transaction. The Commission may also challenge the transaction in administrative

litigation.

The Commission, with the concurrence of the Assistant Attorney General for the

Antitrust Division, promulgated final rules implementing the premerger notification program

on July 31, 1978. At that time, a comprehensive Statement of Basis and Purpose was also

published, containing a section-by-section analysis of the rules and an item-by-item analysis

of the filing form. The program became effective on September 5, 1978. The Commission,

with the concurrence of the Assistant Attorney General, has amended the rules and the filing

form on several occasions over the years to improve the program's effectiveness and to lessen

the burden of complying with the rules.6

A STATISTICAL PROFILE OF THE PREMERGER NOTIFICATION PROGRAM

The appendices to this report provide a statistical summary of the operation of the

premerger notification program. Appendix A shows, for a ten-year period, the number of

transactions reported, the number of filings received, the number of merger investigations in

which second requests were issued, and the number of transactions in which requests for early

termination of the waiting period were received, granted, and not granted.7 Appendix A also

shows for fiscal years 1995 through 2004 the number of transactions in which second requests

could have been issued, as well as the percentage of transactions in which second requests

were issued. Appendix B provides a month-by-month comparison of the number of

transactions reported and the number of filings received for fiscal years 1995 through 2004.

The statistics set out in these appendices show that the number of transactions reported

in fiscal year 2004 increased approximately 43 percent from the number of transactions

reported in fiscal year 2003. In fiscal year 2004, 1,454 transactions were reported, while

1,014 were reported in fiscal year 2003. The statistics in Appendix A also show that the

number of merger investigations in which second requests were issued in fiscal year 2004

remained the same as the number of merger investigations in which second requests were

43 Fed. Reg. 3443 (August 4, 1978); 43 Fed. Reg. 36053 (August 15, 1978); 44 Fed. Reg. (November

21, 1979); 45 Fed. Reg. 14205 (March 5, 1980); 48 Fed. Reg. 34427 (July 29, 1983); 50 Fed. Reg. 46633

(November 12, 1985); 51 Fed. Reg. 10368 (March 26, 1986); 52 Fed. Reg. 7066 (March 6, 1987); 52 Fed. Reg.

20058 (May 29, 1987); 54 Fed. Reg. 214251 (May 18, 1989); 55 Fed. Reg. 31371 (August 2, 1990); 60 Fed. Reg.

40704 (August 9, 1995); 61 Fed. Reg. 13666 (March 28, 1996); 63 Fed. Reg. 34592 (June 25, 1998); 66 Fed.

Reg. 8680 (February 1, 2001); 66 Fed. Reg. 8723 (February 1, 2001); 66 Fed. Reg. 16241 (March 23, 2001); 66

Fed. Reg. 23561 (May 9, 2001); 66 Fed. Reg. 35541 (July 6, 2001); 67 Fed. Reg. 11898 (March 18, 2002); 67

Fed. Reg. 11904 (March 18, 2002); 68 Fed. Reg. 2425 (January 17, 2003); 70 Fed. Reg. 4988 (January 31, 2005);

70 Fed. Reg. 11501 (March 8, 2005); 70 Fed. Reg. 11526 (March 8, 2005).

The term "transaction," as used in Appendices A and B, and Exhibit A to this report, does not refer

only to separate mergers or acquisitions. A particular merger, joint venture or acquisition may be structured such

that it involves more than one transaction. For example, cash tender offers, options to acquire voting securities

from the issuer, or options to acquire voting securities from someone other than the issuer, may result in multiple

acquiring or acquired persons that necessitate separate HSR transaction numbers to track the filing parties and

waiting periods.

issued in fiscal year 2003. Second requests were issued in 35 merger investigations in both

fiscal year 2003 and 2004. While the number issued remained the same, the percentage of

transactions resulting in second requests declined from 3.6 percent in fiscal year 2003 to 2.5

percent in fiscal year 2004. (See Figure 2 below.)

PERCENTAGE OF TRANSACTIONS RESULTING

IN SECOND REQUEST

4.5%

4.3%

4.0%

3.5%

3.8%

3.6%

3.0%

3.5%

3.1%

2.5%

2.6%

2.0%

1.5%

1.0%

2.7%

0.5%

3.5%

2.1%

0.0%

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

Figure 2

The statistics in Appendix A also show that early termination was requested in the

majority of transactions. In fiscal year 2004, early termination was requested in 85 percent

(1,241) of the transactions reported while in fiscal year 2003, it was requested in 69 percent

(700) of the transactions reported. However, the percentage of requests granted out of the

total requested decreased from 86.6 percent in fiscal year 2003, to 76 percent in fiscal year

2004, approximately the percentage of requests granted in fiscal year 2002.

Statistical tables (Tables I through XI) in Exhibit A contain information about the

agencies’ enforcement activities for transactions reported in fiscal year 2004. The tables

provide, for various statistical breakdowns, the number and percentage of transactions in

which clearances to investigate were granted by one antitrust agency to the other and the

number of merger investigations in which second requests were issued. Table III of Exhibit A

shows that, in fiscal year 2004, clearance was granted to one or the other of the agencies for

the purpose of conducting an initial investigation in 17.1 percent of the total number of

transactions in which a second request could have been issued.

The tables also provide the number of transactions based on the dollar value of

transactions reported and the reporting threshold indicated in the notification report. The total

dollar value of reported transactions rose dramatically from fiscal years 1995 to 2000 from

about $508.8 billion to about $3 trillion before declining to about $1 trillion in fiscal year

2001, $565.4 billion in fiscal year 2002, and $406.8 billion in fiscal year 2003. During fiscal

year 2004, the dollar value of reported transactions rose to about $630 billion.

Tables X and XI provide the number of transactions in each industry group in which

the acquiring person or the acquired entity derived revenue. Figure 3 illustrates the

percentage of reportable transactions within industry groups for fiscal year 2004 based on the

acquired entity’s operations.

PERCENTAGE OF TRANSACTIONS BY

INDUSTRY GROUP OF ACQUIRED ENTITY

FISCAL YEAR 2004

Other

13.1%

Health Services

2.4%

Manufacturing

30.2%

Chemicals and

Pharmaceuticals

7.0%

Banking/Insurance

18.0%

Transportation

1.5%

Consumer Goods

11.5%

Energy & Natural

Resources

3.9%

Information

Technology

12.4%

Figure 3

DEVELOPMENTS WITHIN THE PREMERGER PROGRAM

Compliance

The Commission and the Antitrust Division continued to monitor compliance with the

premerger notification program’s filing and waiting period requirements and initiated a

number of compliance investigations in fiscal year 2004. The agencies monitor compliance

through a variety of methods, including the review of newspapers and industry publications

for announcements of transactions that may not have been reported in accordance with the

requirements of the Act. In addition, industry sources, such as competitors, customers and

suppliers, and interested members of the public, often provide the agencies with information

about transactions and possible violations of the Act’s requirements.

Under Section 7A(g)(1) of the Act, any person that fails to comply with the Act’s

notification and waiting period requirements is liable for a civil penalty of up to $11,000 for

each day the violation continues.8 The antitrust agencies examine the circumstances of each

violation to determine whether penalties should be sought.9 During fiscal year 2004, 25

corrective filings for violations were received, and the agencies brought two enforcement

actions, resulting in the payment of $1.8 million in civil penalties.

In United States v. Gates,10 the complaint alleged that Bill Gates, through his personal

investment company, acquired more than $50 million of the voting securities of ICOS

Corporation in 2002, without complying with HSR reporting requirements. According to the

complaint, he did not qualify for the “solely for the purpose of investment” HSR Act

exemption because he intended to participate in the basic business decisions of ICOS, a

pharmaceutical company, through among other things, his longstanding membership on its

board of directors. Under the terms of a consent decree filed simultaneously with the

complaint, Gates agreed to pay a civil penalty of $800,000 to settle the charges. The case was

not related to Gates’ position in Microsoft Corporation or the Antitrust Division’s antitrust

litigation with the company.

In United States v. Manulife Financial Corporation,11 the complaint alleged that

Manulife, a Canadian-based insurance and financial services company, violated the HSR Act

when it acquired more than $50 million of John Hancock common stock in the spring of 2003

without making a premerger notification filing. Manulife and John Hancock announced in

September 2003 an intent to merge, and they consummated that transaction in April 2004.

According to the complaint, the initial purchases in the spring of 2003 did not qualify for the

“solely for the purpose of investment” HSR Act exemption because, at the time of the

acquisitions, Manulife was considering a Manulife-John Hancock combination. Under the

terms of a consent decree filed simultaneously with the complaint, Manulife agreed to pay a

civil penalty of $1 million to settle the charges.

Proposed Rules

Effective November 20, 1996, dollar amounts specified in civil monetary penalty provisions within the

Commission’s jurisdiction were adjusted for inflation in accordance with the Debt Collection Improvement Act

of 1996, Pub. L. No. 104-134 (April 26, 1996). The adjustments included, in part, an increase from $10,000 to

$11,000 for each day during which a person is in violation under Section 7A(g)(1). 61 Fed. Reg. 54548 (October

21, 1996), corrected at 61 Fed. Reg. 55840 (October 29, 1996).

When the parties inadvertently fail to file, the enforcement agencies generally do not seek penalties

where the parties promptly make corrective filings after discovering the failure to file, submit an acceptable

explanation of their failure to file, and have not previously violated the Act.

United States v. William H. Gates III, No. 1:04CV00721 (D.D.C. filed May 3, 2004).

United States v. Manulife Financial Corporation, No. 1:04CV00722 (D.D.C. filed May 3, 2004).

On April 8, 2004, the Commission published a Notice of Proposed Rulemaking12

proposing changes to the premerger notification rules. The proposed rules attempted to

reconcile, as far as practical, the disparate treatment of corporations, partnerships, limited

liability companies and other types of non-corporate entities under the rules, particularly in

the areas of acquisitions of interests in these entities, formations, and the application of certain

exemptions.

MERGER ENFORCEMENT ACTIVITY13

The Department of Justice

During fiscal year 2004, the Antitrust Division challenged nine merger transactions

that it concluded might have substantially lessened competition if allowed to proceed as

proposed. In six of these challenges, the Antitrust Division filed a complaint in U.S. district

court. Five of these cases were settled by consent decree, and one case was litigated

unsuccessfully in district court. In the other three challenges during fiscal year 2004, when

apprised of the Antitrust Division’s concerns regarding their proposed transaction, the parties

in two instances abandoned the proposed transaction, and in the third, the parties restructured

the proposed transaction to avoid competitive problems.14

In United States et al. v. Waste Management, Inc., et al.,15 the Division and the State

of Florida required Waste Management to sell certain waste hauling assets before proceeding

with its proposed multi-million dollar purchase of stock and assets from Allied Waste

Industries, Inc., in Broward County and Palm Beach County, Florida. The complaint alleged

that the transaction, as originally proposed, would have lessened competition and resulted in

higher prices for small container commercial hauling services in Broward County, where the

parties were two of only three significant firms providing this service. Small container

commercial hauling involves the collection of waste from commercial sites such as retail

stores, offices and restaurants, and the shipment of the collected waste to disposal sites. The

Division filed a proposed consent decree simultaneously with the complaint, settling the suit.

Under the terms of the decree, Waste Management was required to divest small container

commercial hauling assets on certain routes in Broward County. Additionally, Waste

Management must notify both the Department of Justice and the State of Florida if it proposes

to acquire small container commercial hauling assets in Broward County. The Court entered

69 Fed. Reg. 18686 (April 8, 2004). The proposed rules were modified after public comment and

became final in fiscal year 2005; see 70 Fed. Reg 11502 (March 8, 2005).

All cases in this report were not necessarily reportable under the premerger notification program.

Because of provisions regarding the confidentiality of the information obtained pursuant to the Act, it would be

inappropriate to identify which cases were initiated under the program.

In two instances, the Department of Justice issued press releases: October 29, 2003 - Sonoco

Products Company proposed acquisition of Pasco Beverages Company (frozen juice can-making equipment);

August 25, 2004 - Wachovia Corporation merger with SouthTrust Corporation (Florida and Georgia banking

services). In the other instance, the Division informed the parties of its concerns but did not issue a press release.

United States and the State of Florida v. Waste Management, Inc. and Allied Waste Industries, Inc.,

No. 1:03CV02076 (D.D.C. filed Oct. 14, 2003).

the consent decree on March 30, 2004.

In United States, et al. v. First Data Corporation, et al.,16 the Division sued to block

the proposed $7 billion acquisition of Concord EFS, Inc. by First Data Corporation. The

complaint alleged that the merger would have substantially reduced competition among PIN

debit networks, and resulted in consumers paying higher prices for goods and services from

merchants that offer PIN debit transactions. PIN debit networks enable consumers to

purchase goods and services from merchants through PIN debit transactions by swiping their

bank card at a merchant’s terminal and entering a Personal Identification Number, or PIN.

According to the complaint, PIN debit networks provide an increasingly important method of

payment because PIN debit is the least expensive, most efficient, and most secure form of

card payment, and in 2002, consumers used PIN debit networks to purchase more than $150

billion in goods and services. Concord owned STAR, the largest PIN debit network, and First

Data owned 64 percent of NYCE Corporation, which operated NYCE, the third-largest PIN

debit network. Just before trial was scheduled to begin, on December 15, 2003, First Data

agreed to divest its full interest in NYCE Corporation in order to proceed with the proposed

acquisition, and a consent decree was filed, settling the suit. Thereafter, the Court entered the

consent decree on May 25, 2004.

In United States v. DNH International Sar, et al.,17 the Division required Dyno Nobel,

Inc. to divest its 50 percent interest in an industrial grade ammonium nitrate (IGAN)

production facility in Utah in order to proceed with a multimillion dollar acquisition of

ammonium nitrate manufacturing facilities from El Paso Corporation. IGAN is an essential

ingredient in the production of nearly all blasting agent explosives for commercial use in

industries such as mining and construction. Dyno Nobel, which was a subsidiary of DNH

International Sarl, and El Paso, through its wholly owned subsidiary, Coastal Chem Inc., were

among the largest producers of IGAN in North America. The complaint alleged that the

transaction, as originally proposed, would have resulted in higher prices for IGAN purchasers

in the western United States, with two firms controlling almost 90 percent of IGAN sales in

western North America. The Division filed a consent decree simultaneously with the

complaint, settling the suit. The Court entered the consent decree on May 6, 2004.

In United States v. Syngenta AG, et al.,18 the Division challenged Syngenta’s proposed

$475 million acquisition of Advanta B.V., alleging that the acquisition, as originally

proposed, would have resulted in higher prices and reduced seed innovation for sugar beet

growers in the United States. Sugar beets are sold to processors, who convert them to sugar.

The complaint alleged that Syngenta and Advanta were two of only three significant

developers of sugar beet seeds appropriate for growing in the United States, and that they

United States and the State of Connecticut, State of Illinois, State of Louisiana, Commonwealth of

Massachusetts, State of New York, State of Ohio, State of Texas, and District of Columbia v. First Data

Corporation and Concord EFS, Inc., No. 1:03CV02169 (D.D.C. Oct. 23, 2003).

United States v. DNH International Sarl, Dyno Nobel, Inc., El Paso Corporation, and Coastal Chem,

Inc., No. 1: 03CV02486 (D.D.C. Dec. 12, 2003).

United States v. Syngenta AG, AstraZeneca PLC, Koninklijke Cooperatie Cosun U.A. and Advanta

B.V., No. 1:04CV01442 (D.D.C. Aug. 25, 2004).

devoted considerable research and development efforts to seed innovation. Syngenta was the

third largest agricultural seed company in the world and Advanta was the fifth largest. The

Division filed a proposed consent decree simultaneously with the complaint, settling the suit.

Under the terms of the decree, Syngenta was required to divest the worldwide sugar beet

business of Advanta. The Court entered the consent decree on December 16, 2004.

In United States v. Connors Bros. Income Fund, et al.,19 the Division challenged the

acquisition of Bumble Bee Seafoods by Connors Bros. Income Fund, a Canadian income

trust, alleging that combining the two companies would have resulted in higher prices for U.S.

consumers of mainstream canned sardine snack products. The complaint alleged that Connors

and Bumble Bee owned the four dominant sardine snack brands and were the only two

significant sellers of mainstream sardine snacks. The Division filed a proposed consent

decree simultaneously with the complaint, settling the suit. Under the terms of the decree,

Connors is required to divest its Port Clyde sardine snack business. The Court entered the

consent decree on April 19, 2005.

In United States, et al. v. Oracle Corporation,20 the Division sued to prevent Oracle

Corporation from acquiring Peoplesoft, Inc. The complaint alleged that Oracle, Peoplesoft,

and the German software company, SAP, were the only companies that competed to develop

and sell high function integrated human resource management and financial management

services software that met the needs of large, complex enterprises. At trial, the Division

unsuccessfully sought to prove that the acquisition would likely reduce competition and result

in higher prices, less innovation, and fewer choices for businesses, government agencies and

other organizations that depend on this type of software. On September 9, 2004, the Court

entered judgment for the defendant.

During fiscal year 2004, the Division investigated two bank merger transactions for

which divestiture was required prior to or concurrently with the acquisition. In those

instances, a “not significantly adverse” letter conditioned upon a letter agreement between the

parties and the Division was sent to the appropriate bank regulatory agency.21

Additionally, on August 2, 2004, the Division petitioned the Court to enter an

enforcement order against Allied Waste Industries for violating an order that was entered by

the court on May 19, 2000, in United States v. Allied Waste Industries, Inc. and Browning19

United States v. Connors Bros. Income Fund, and Bumble Bee Seafoods, LLC, No. 1:04CV01494

(D.D.C. Aug. 31, 2004).

United States and the State of Texas, State of Hawaii, State of Maryland, Commonwealth of

Massachusetts, State of Minnesota, State of New York and State of North Dakota v. Oracle Corporation, No. C04-0807 (JCS) (N.D. CA Feb. 26, 2004).

The two letters were: August 25, 2004, letter to the Board of Governors of the Federal Reserve

System regarding the application by Wachovia Corporation, Charlotte, NC, to acquire SouthTrust Corporation,

Birmingham, AL; August 26, 2004, letter to the Board of Governors of the Federal Reserve System regarding the

application by SunTrust Banks Inc., Atlanta, GA, to acquire National Commerce Financial Corporation,

Memphis, TN.

Ferris Industries, Inc.22 Under the terms of the decree settling that merger challenge, Allied

was required to grant ash and bypass waste disposal rights at the former Browning-Ferris

landfill in Fall River, Massachusetts to the SEMASS incinerator owned by American RefFuel Company. According to the Department’s petition, Allied violated that provision of the

decree by prematurely terminating SEMASS’s disposal rights at Fall River. The enforcement

order agreed to by Allied and the Department confirmed that Allied would accept ash and

bypass waste from SEMASS at the Fall River landfill, as required by the 2000 decree. On

August 9, 2004, the court entered the enforcement order.

On August 31, 2004, in United States and Commonwealth of Kentucky v. Dairy

Farmers of America, Inc. and Southern Belle Dairy Co., LLC,23 the federal district court

granted Dairy Farmers of America, Inc.’s motion for summary judgment and dismissed the

complaint with prejudice. Thereafter, the Division filed its notice of appeal on October 28,

2004, and that appeal is pending.

The Federal Trade Commission

The Commission challenged fifteen transactions that it concluded would have lessened

competition if allowed to proceed as proposed during fiscal year 2004,24 leading to ten

consent orders, one administrative complaint, and three abandonments.25 In one matter, the

Commission authorized staff to seek injunctive relief, which was litigated unsuccessfully in

district court.

In Federal Trade Commission v. Arch Coal, Inc., New Vulcan Coal Holdings, LLC,

and Triton Coal Company, LLC,26 the Commission filed for a preliminary injunction to block

Arch Coal’s proposed acquisition of Triton Coal Company, LLC from New Vulcan Holdings,

LLC alleging that the acquisition would have substantially lessened competition and increased

the likelihood of coordinated interaction among coal producers in Wyoming’s Southern

Powder River Basin (“SPRB”), adversely affecting electricity customers throughout the

United States. According to the complaint, of the approximately 1.1 billion tons of coal

produced annually in the United States, about one-third is produced in the SPRB and is

burned by electric generators in at least twenty-six states. The SPRB had vast reserves and a

substantial production of low-sulfur coal with energy content between approximately 8400

See the Annual Report to Congress, Fiscal Year 1999 for a description of this case.

See the Annual Report to Congress, Fiscal Year 2003 for a description of this case.

To avoid double counting this report includes only those merger enforcement actions in which the

Commission took its first public action during fiscal year 2004.

The Commission did not make public statements about the transactions that were abandoned after the

parties were told of the Commission’s concerns about the proposed transactions.

Federal Trade Commission v. Arch Coal, Inc., New Vulcan Coal Holdings, LLC, and Triton Coal

Company, LLC, Civ. No. 1:04CV534 (D.D.C. filed April 1, 2004). On April 6, 2004, the FTC issued an

administrative complaint. The administrative complaint was withdrawn from adjudication on September 10,

2004.

and 8800 British Thermal Units (“Btus”) per pound. The most highly valued SPRB coal was

8800 Btu SPRB coal, which was produced in the southern portion of the SPRB, known as Tier

1. Because of its lower sulfur content, higher energy content, and easy access to competing

rail transport service, 8800 Btu SPRB coal demanded a price premium over other coal mined

in the SPRB. Arch was the second largest producer of coal in the United States and was one

of only four producers of 8800 Btu SPRB coal. Triton was one of five significant producers

of coal in the SPRB and was also one of only four producers of 8800 Btu SPRB coal. The

proposed acquisition would have combined two among only four producers in Tier 1 of the

SPRB, substantially increasing concentration in 8800 Btu SPRB coal. The acquisition also

would have combined the two firms that held the principal sources of excess capacity in the

SPRB, and brought under Arch's control the principal source of excess capacity for

production of 8800 Btu SPRB coal. The district court denied the Commission’s motion for

the preliminary injunction. On June 13, 2005, the Commission voted not to continue with its

administrative litigation, and to close its investigation into the transaction.

The Commission issued an administrative complaint in Evanston Northwestern

Healthcare Corporation, and ENH Medical Group, Inc.,27 alleging that Evanston’s 2000

acquisition of Highland Park Hospital resulted in significantly higher prices charged to health

insurers and therefore in higher costs to purchasers of insurance and consumers of hospital

services. According to the complaint, with Highland Park added to its existing hospitals,

Evanston became a more significant provider of healthcare to payors who needed hospital

access in northeast Cook County and southeast Lake County, Illinois. As a result of the

merger, Evanston was able to raise its prices far above price increases of other comparable

hospitals. In a separate count challenging conduct, the complaint alleged that the resulting

physicians’ group negotiated prices not only for physicians who were employed by the ENH

Medical Group but also for several hundred independent physicians not employed by the

Group who were previously affiliated with Highland Park, resulting in reduced competition

and higher prices paid by health plans and other payors to the Group’s salaried and

independent doctors. Under the terms of a consent order that settled only the conduct

allegations, the ENH Medical Group was prohibited from bargaining on behalf of its

members. An administrative hearing is pending concerning the Commission’s allegations

surrounding Evanston’s acquisition of Highland Park.

Evanston Northwestern Healthcare Corporation, and ENH Medical Group, Inc., Docket No. 9315

(issued February 10, 2004).

In fiscal year 2004, the Commission accepted consent agreements for public comment

in ten merger cases. Six of the consent agreements became final in fiscal year 2004; four

became final in fiscal year 2005.

In Gencorp Inc.,28 the complaint alleged that Gencorp’s proposed acquisition of

Atlantic Research Corporation (“ARC”) from Sequa Corporation would have lessened

competition in the market for the research, development, manufacture and sale of certain

types of in-space propulsion thrusters in the United States. According to the complaint,

Aerojet, a Gencorp subsidiary, and ARC were the closest competitors and the only viable

suppliers of monopropellant, bipropellant apogee, and dual mode apogee thrusters to

commercial, civil, and defense customers in the United States for most spacecraft programs.

ARC was the nation’s leading supplier of biopropellant attitude control thrusters. Although

Aerojet did not produce biopropellant attitude control thrusters, it had substantial expertise in

this area, had produced these thrusters in the past and was a likely potential entrant into this

market. The proposed acquisition would have eliminated direct competition between the

companies, increasing the likelihood that U.S. commercial, civil and defense customers would

have been forced to pay higher prices for such products. To remedy the anticompetitive

effects of the proposed transaction, Gencorp was required to divest ARC’s in-space liquid

propulsion business to a Commission-approved buyer.

In General Electric Company,29 the complaint alleged that General Electric’s proposed

acquisition of Agfa-Gevaert N.V’s nondestructive testing (“NDT”) business would have

substantially lessened competition in the market for certain ultrasonic NDT equipment in the

United States. According to the complaint, the U.S. markets for portable flaw detectors,

corrosion thickness gages, and precision thickness gages were highly concentrated, and postacquisition GE’s market share in each of the markets would have exceeded 70 percent. GE,

through its Panametrics subsidiary, and Agfa, through its Krautkramer subsidiary, were the

two largest suppliers of ultrasonic NDT equipment in the United States. By eliminating

competition between these two leading suppliers, the proposed acquisition would have

allowed General Electric to exercise market power, increasing the likelihood that the

purchasers of these products would have been forced to pay higher prices. Under the terms of

the order, General Electric was required to divest its worldwide Panametrics ultrasonic NDT

business to R/D Tech, Inc.

In American Air Liquide, Inc.,30 the complaint alleged that American Air Liquide’s

proposed $2 billion acquisition of Messer Griesheim GmbH would have substantially

lessened competition in the market for liquid argon in the continental United States and in

certain regional markets in the United States for liquid oxygen and liquid nitrogen. According

to the complaint, American Air Liquide was the fourth largest supplier of industrial gases in

the United States, with air separation units (“ASUs”) located throughout the nation, primarily

Gencorp Inc., Docket No. C-4099 (issued December 19, 2003).

General Electric Company, Docket No. C-4103 (issued January 28, 2004).

American Air Liquide, Docket No. C-4109 (issued June 29, 2004).

in Texas and the Gulf Coast region. Messer’s U.S. subsidiary, Messer Griesheim Industries,

Inc. (“MGI”), was the fifth largest producer of liquid atmospheric gases (including oxygen,

nitrogen, and argon) in the United States. MGI owned and operated many ASUs, including

several in Texas and the Gulf Coast region, as well as in northern and southern California. In

the southern Texas and western Louisiana markets, MGI and American Air Liquide were the

only producers capable of economically supplying customers with liquid oxygen and

nitrogen. As proposed, the transaction would have increased the likelihood of consumers

being forced to pay higher prices for these products in the relevant geographic areas. Under

the order, American Air Liquide was required to divest six ASUs and related assets that were

operated by MGI in California, Texas, Louisiana, and Mississippi.

In Itron, Inc./Schlumberger Electricity, Inc.,31 the complaint alleged that the proposed

acquisition of Schlumberger by Itron would have substantially lessened competition in the

market for the research, development, manufacture and sale of mobile radio frequency (“RF”)

automatic meter reading (“AMR”) systems for electric utilities in the United States. Mobile

RF AMR systems allow data from electricity meters to be read automatically and remotely,

eliminating the need for a utility to send a meter reader to manually inspect each individual

meter. According to the complaint, Itron was the leading supplier of mobile RF AMR

systems to electric utilities in the United States. Schlumberger was the leading supplier of

residential electricity meters in the United States and the second largest supplier of mobile RF

AMR systems nationwide. The U.S. market for such systems was highly concentrated, with

Itron and Schlumberger, together, accounting for more than 99 percent of the market. The

other three firms in the market, together, had a market share of less than one-half of one

percent. Direct competition between the companies resulted in lower prices for consumers of

mobile RF AMR technology, improved service, and greater innovation. Such benefits would

have been eliminated if the transaction as proposed was allowed to proceed with no relief.

Under the order, Itron was required to grant a royalty-free, perpetual, and irrevocable license

to Hunt Technologies, Inc. for Itron’s mobile RF AMR technology for electric utilities,

allowing Hunt to become a viable and significant competitor in this market.

In Sanofi-Synthelabo/Aventis,32 the complaint alleged that the proposed $64 billion

merger of Sanofi and Aventis would have substantially lessened competition in the markets

for the research, development, manufacture, and sale of the following products in the United

States: factor Xa inhibitors, used to treat and prevent venous thromboembolism and other

conditions related to excessive blood clot formation; cytotoxic drugs used to treat colorectal

cancer; and prescription drugs used to treat insomnia. According to the complaint, Aventis’

market-leading Lovenox accounted for more than 90 percent of factor Xa inhibitor sales in the

United States. Sanofi later entered the market with its product Arixtra. While other factor Xa

inhibitors were available in the United States, they were not successful competitors. The two

major cytotoxic treatments available to treat colorectal cancer were Sanofi’s Eloxatin and

Camptosar’s Irinotecan, which was developed by Yakult Honsha and marketed in the United

States by Pfizer. Yakult also licensed irinotecan to Aventis under the brand name Campto for

Itron, Inc./Schlumberger Electricity, Inc., Docket No. C-4114 (issued August 5, 2004).

Sanofi-Synthelabo/Aventis, Docket No. C-4112 (issued September 20, 2004).

sale in other territories. Although Aventis did not market cytotoxic colorectal cancer drugs in

the United States, significant contractual entanglements between Aventis and Pfizer affected

the U.S. market, which included Aventis’ conducting key clinical trials for Pfizer, Inc. –

allowing Aventis to affect the Camptosar business. Sanofi’s Ambien product also dominated

the insomnia market with an 87 percent share. Although Aventis did not market a

prescription drug for insomnia in the United States, the proposed transaction would have

created an overlap between Sanofi’s Ambien and Aventis’ royalty rights to Estorra, which

was under development by Sepracor. Estorra likely would have become a significant

competitor of Ambien. The proposed transaction likely would have resulted in consumers

being forced to pay higher prices for products in the relevant markets. Under the order,

Sanofi was required to divest its Arixtra factor Xa inhibitor assets to GlaxoSmithKline, plc;

divest to Pfizer key clinical studies for the Campto cytotoxic colorectal cancer treatment that

were being conducted by Aventis; and divest Aventis’ contractual rights to the Estorra

insomnia drug to Sepracor or another Commission-approved buyer.

In Cephalon, Inc./Cima Labs Inc.,33 the complaint alleged that Cephalon’s proposed

acquisition of Cima Labs would have substantially lessened competition in the United States

for breakthrough cancer pain (“BTCP”) products. BTCP drugs help to reduce or eliminate the

spikes of severe pain that chronic cancer patients experience. According to the complaint, the

market for drugs used to treat BTCP was a monopoly, with Cephalon marketing Actiq, the

only product approved by the U.S. Food and Drug Administration for such use. However,

Cima was developing a competing BTCP drug, OraVescent fentanyl, and intended to seek

FDA approval by the end of 2004 or early 2005. The proposed acquisition would have

allowed Cephalon to continue its monopoly of the BTCP drug market in the United States,

likely forcing consumers to pay higher prices for BTCP drugs. Under the order, Cephalon

was required to grant Barr Laboratories, Inc. a fully paid up, irrevocable license to

manufacture and sell a generic formulation of Cephalon’s BTCP drug Actiq in the United

States.

In General Electric Company,34 the complaint alleged that the proposed $900 million

acquisition of InVision Technologies, Inc. by General Electric would have substantially

lessened competition in the market for the development, manufacture, and sale of certain xray and nondestructive testing (“NDT”) and inspection equipment in the United States. NDT

and inspection equipment is used in a wide range of industries to inspect the structure and

tolerance of materials or identify objects inside materials without damaging the materials, or

identify objects inside materials, without damaging the materials or impairing their future

usefulness. According to the complaint, General Electric and InVision were the two leading

U.S. producers and sellers of x-ray NDT and inspection equipment, including standard x-ray

cabinets, automated defect recognition (“ADR”)-capable NDT and inspection systems, and

high energy x-ray generators. The U.S. markets for standard x-ray cabinets, ADR-capable xray systems, and high energy x-ray generators were highly concentrated, and post-acquisition

General Electric would have become the dominant supplier in each of the relevant product

Cephalon, Inc./Cima Labs Inc., Docket No. C-4121 (issued September 20, 2004).

General Electric Company, Docket No. C-4119 (issued October 25, 2004).

markets. Under the order, General Electric was required to divest InVision’s YXLON NDT

subsidiary to a Commission-approved buyer.

In Buckeye Partners, L.P./Shell Oil Company,35 the complaint alleged that Buckeye

Partners’ proposed acquisition of certain refined petroleum pipelines and terminals from Shell

would have substantially lessened competition in the market for the terminaling of gasoline,

diesel fuel, and other light petroleum products in the area around Niles, Michigan. According

to the complaint, the market for terminaling services in the Niles area was highly concentrated

and would have significantly increased after the proposed transaction was consummated. The

complaint also asserted that the elimination of direct competition between Buckeye Partners

and Shell likely would have resulted in an increase in prices of gasoline, diesel fuel and other

light petroleum products in the relevant market. In response to the Commission’s competitive

concerns, the parties subsequently modified their agreement to exclude the Niles terminal

from the assets to be acquired. The parties were required for ten years to notify the

Commission before acquiring, selling, or transferring the Niles terminal assets that were part

of the parties’ originally proposed transaction.

In Magellan Midstream Partners, L.P./Shell Oil Company,36 the complaint alleged that

Magellan’s acquisition of certain pipeline and terminal assets from Shell would have

substantially lessened competition in the market for the terminaling of gasoline, diesel fuel,

and other light petroleum products in the Oklahoma City metropolitan area. According to the

complaint, Magellan and Shell each owned a petroleum product terminal that supplied

gasoline, diesel fuel, and other light petroleum products to buyers in the Oklahoma City

metropolitan market. Marketers and other wholesale buyers of gasoline, diesel fuel, and other

light petroleum products had no effective alternative to terminals located within this area, and

because of costs and delivery logistics, terminals located outside of the Oklahoma City

metropolitan area were too far away to supply buyers in that area. The market for terminaling

services in the Oklahoma City metropolitan area was highly concentrated and would have

become more highly concentrated as a result of the proposed transaction, increasing the

likelihood that the prices of gasoline, diesel fuel, and other light petroleum products would

have increased in the relevant market. To remedy the anticompetitive effects of the proposed

acquisition, the order required Magellan to hold the Shell Oklahoma City terminal assets

separate and maintain their viability until they could be sold to a Commission-approved

buyer.

In Enterprise Products Partnership L.P./Dan L. Duncan,37 the complaint alleged that

the proposed acquisition by Enterprise of Gulf Terra Energy Partners L.P. would have

substantially lessened competition in the pipeline transportation of natural gas from the West

Coast Deepwater region of the Gulf of Mexico and in propane storage and terminaling

services in Hattiesburg, Mississippi. According to the complaint, both markets were highly

Buckeye Partners, L.P./Shell Oil Company, Docket No. C-4127 (issued December 17, 2004).

Magellan Midstream Partners, L.P./Shell Oil Company, Docket No. C-4122 (issued November 23,

Enterprise Products Partners L.P./Dan L. Duncan, Docket No. C-4123 (issued November 23, 2004).

2004).

concentrated. Enterprise and Gulf Terra, together, accounted for approximately 60 percent of

the natural gas pipeline capacity in the West Central Deepwater market and controlled

approximately 53 percent of the propane storage capacity in the Hattiesburg, Mississippi

market. The proposed acquisition would have provided Enterprise with a controlling interest

in three of the four propane storage and terminaling facilities in Hattiesburg. By eliminating

direct competition between Enterprise and Gulf Terra, the proposed acquisition likely would

have caused significant competitive harm to producers of natural gas who purchased pipeline

transportation services in the West Central Deepwater market. The proposed acquisition also

may have caused significant competitive harm to propane marketers who incurred increased

prices and fees for propane storage and terminaling services in Hattiesburg. These costs

likely would have been passed on to propane customers. Under the order, Enterprise was

required to divest an interest in a natural gas pipeline transportation system in the Western

Central Deepwater region of the Gulf of Mexico and divest an interest in a propane storage

and terminaling services facility in Hattiesburg, which served the Dixie Pipeline, the only

common-carrier propane pipeline in the southeast United States.

The Commission also brought an action to enforce an order when the parties did not

comply with the terms of a prior settlement. In Federal Trade Commission v. RHI AG,38 the

complaint alleged that RHI violated various provisions of an FTC order issued in 2001.

According to the complaint, the 2001 order was issued pursuant to a 1999 consent agreement

with RHI that followed the FTC’s investigation of RHI’s acquisition of Global Industrial

Technologies, Inc., and resolved concerns that the acquisition would decrease competition in

North American markets for refractory bricks used to line steel-making equipment. The

order, as drafted in 1999, required RHI to divest to Resco Products, Inc. two refractories

plants and other assets in Canada and the United States in a manner set out in contracts

between Resco and NARCO, an RHI subsidiary. However, before the order became final, the

FTC determined, in 2000, that NARCO failed to divest all of the requisite assets to Resco.

The complaint also charged that NARCO manufactured refractory bricks in violation of a

patent license that was part of the order, and in violation of specific order language. Finally,

the complaint asserted that NARCO modified the settlement agreement with Resco without

FTC approval. Under the terms of the final judgment, RHI agreed to pay a civil penalty of at

least $650,000 for the violations and to conduct asbestos remediation at a divested plant.

ONGOING REASSESSMENT OF THE EFFECTS OF THE PREMERGER

NOTIFICATION PROGRAM

The Commission and the Antitrust Division continually review the impact of the

premerger notification program on the business community and antitrust enforcement. As

indicated in past annual reports, the HSR program ensures that virtually all significant

mergers or acquisitions that affect consumers in the United States will be reviewed by the

antitrust agencies prior to consummation. The agencies generally have the opportunity to

challenge unlawful transactions before they occur, thus avoiding the problem of constructing

effective post-acquisition relief. As a result, the HSR Act is doing what Congress intended,

Federal Trade Commission v. RHI AG, No. 1:04CV524 (D.D.C. filed March 31, 2004).

giving the government the opportunity to investigate and challenge mergers that are likely to

harm consumers before injury can arise. Prior to the premerger notification program,

businesses could, and frequently did, consummate transactions that raised significant antitrust

concerns before the antitrust agencies had the opportunity to consider adequately their

competitive effects. The enforcement agencies were forced to pursue lengthy post-acquisition

litigation, during the course of which harm from the consummated transaction continued (and

afterwards as well, where achievement of effective post-acquisition relief was not

practicable). Because the premerger notification program requires reporting before

consummation, this problem has been significantly reduced.

Always cognizant of the program’s impact and effectiveness, the enforcement

agencies continue to seek ways to speed up the review process and reduce burdens for

companies. As in past years, the agencies will continue their ongoing assessment of the HSR

program to increase accessibility, promote transparency, and reduce the burden on the filing

parties without compromising the agencies’ ability to investigate and interdict proposed

transactions that may substantially lessen competition.

LIST OF APPENDICES

Appendix A -

Summary of Transactions, Fiscal Years 1995 - 2004

Appendix B -

Number of Transactions Reported and Filings Received by Month

for Fiscal Years 1995 - 2004

LIST OF EXHIBITS

Exhibit A -

Statistical Tables for Fiscal Year 2004, Presenting Data Profiling

Hart-Scott-Rodino Premerger Notification Filings and

Enforcement Interest

APPENDIX A

SUMMARY OF TRANSACTIONS

FISCAL YEARS 1995- 2004

APPENDIX A

SUMMARY OF TRANSACTIONS BY YEAR

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

Transactions Reported

2,816

3,087

3,702

4,728

4,642

4,926

2,376

1,187

1,014

1,454

Filings Received1

5,439

6,001

7,199

9,264

9,151

9,941

4,800

2,369

2,001

2,866

2,612

2,864

3,438

4,575

4,340

4,749

2,237

1,142

968

1,377

101

122

125

111

2.2%

1.3%

1.0%

0.9%

1.2%

2.4%

1.5%

1.6%

2.2%

1.7%

1.6%

1.2%

1.9%

2.1%

1.1%

2,471

2,861

3,363

4,323

4,110

4,324

2,063

1,042

700

1,241

Granted5

1,869

2,044

2,513

3,234

3,103

3,515

1,603

793

606

943

Not Granted5

602

817

850

1,089

1,007

809

460

249

298

Adjusted Transactions In Which A

Second Request Could Have Been

Issued2

Investigations in Which Second

Requests Were Issued

FTC3

Percent

DOJ

Percent4

Transactions Involving a Request

For Early Termination5

Usually, two filings are received, one from the acquiring person and one from the acquired person when a transaction is reported. Only one application is

received when an acquiring party files for an exemption under §§7A(c)(6) or (c)(8) of the Clayton Act.

These figures omit from the total number of transactions reported all transactions for which the agencies were not authorized to request additional information.

Theses include (1) incomplete transactions (only one party filed a complete notification); (2) transactions reported pursuant to the exemption provisions of

§§ 7A(c)(6) and 7A(c)(8) of the Act; and (3) transactions found to be non-reportable. In addition, where a party filed more than one notification in the same year

to acquire voting securities of the same corporation, e.g., filing for one threshold and later for a higher threshold, only a single consolidated transaction has been

counted because, as a practical matter, the agencies do not issue more than one Second Request in such a case. These statistics also omit from the total number of

transactions reported secondary acquisitions filed pursuant to 801.4 of the Premerger Notification rules. Secondary acquisitions have been deducted in order to

be consistent with statistics presented in most prior annual reports.

These statistics are based on the date the request was issued, not the date the investigation was opened.

Second Requests investigations are a percentage of the total number of adjusted transactions.

These statistics are based on the date of the HSR filing, not the date action was taken on request.

APPENDIX B

NUMBER OF TRANSACTIONS REPORTED

AND

FILINGS RECEIVED BY MONTH

FOR

FISCAL YEARS 1995 - 2004

APPENDIX B

TABLE 1. NUMBER OF TRANSACTIONS REPORTED BY MONTH FOR FISCAL YEARS 1995–2004

OCTOBER

NOVEMBER

DECEMBER

JANUARY

FEBRUARY

MARCH

APRIL

MAY

JUNE

JULY

AUGUST

SEPTEMBER

TOTAL

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

273

309

216

180

170

229

177

281

252

225

237

267

2,816

238

273

249

238

231

277

252

304

253

265

264

243

3,087

296

332

267

263

250

315

302

328

319

389

318

323

3,702

424

387

426

306

336

392

384

401

442

435

427

368

4,728

333

359

394

282

330

427

364

438

445

444

434

392

4,642

376

428

468

335

440

455

343

398

494

351

446

392

4,926

360

451

345

245

120

153

190

163

2,376

105

111

109

111

121

1,187

104

1,014

127

143

109

138

135

131

122

123

135

112

1,454

APPENDIX B

TABLE 2. NUMBER OF FILINGS RECEIVED1 BY MONTH FOR FISCAL YEARS 1995- 2004

OCTOBER

NOVEMBER

DECEMBER

JANUARY

FEBRUARY

MARCH

APRIL

MAY

JUNE

JULY

AUGUST

SEPTEMBER

TOTAL

1995

505

614

419

360

326

432

350

534

496

439

455

509

5,439

1996

450

520

474

445

480

528

498

584

502

515

490

6,001

1997

561

636

521

514

483

614

599

640

620

759

617

635

7,199

1998

818

749

836

614

650

766

763

787

862

851

844

724

9,264

1999

662

686

785

548

658

828

719

851

884

887

885

758

9,151

2000

777

839

922

677

867

959

695

859

1,004

718

886

738

9,941

2001

751

920

686

499

144

243

188

296

378

182

332

181

4,800

2002

190

211

183

224

174

230

203

212

170

230

191

151

2,369

2003

148

206

150

179

146

144

182

168

158

170

164

186

2,001

2004

185

254

280

168

209

277

251

267

255

235

270

215

2,866

Usually, two filings are received, one from the acquiring person and one from the acquired person when the transaction is reported. Only one filing is received

when an acquiring person files for a transaction under §§ 7(A)(c)(6) and (c)(8) of the Clayton Act.

EXHIBIT A

STATISTICAL TABLES

FOR

FISCAL YEAR 2004

DATA PROFILING HART-SCOTT-RODINO PREMERGER

NOTIFICATION FILINGS AND ENFORCEMENT INTERESTS

TABLE I

FISCAL YEAR 20041

ACQUISITIONS BY SIZE OF TRANSACTION (BY SIZE RANGE)2

HSR TRANSACTIONS

TRANSACTION RANGE

($MILLIONS)

NUMBER4

PERCENT

CLEARANCE GRANTED TO FTC OR

DOJ

PERCENT OF

NUMBER

TRANSACTION RANGE

GROUP

SECOND REQUEST

INVESTIGATIONS3

PERCENT OF

TRANSACTION RANGE

NUMBER

GROUP

FTC

DOJ

Below 50M

50M - 100M

100M - 150M

150M - 200M

200M - 300M

300M - 500M

500M - 1000M

Over 1000M

514

192

117

177

158

111

104

0.3%

37.3%

13.9%

8.5%

12.8%

11.5%

8.1%

7.6%

FTC

0.0%

6.0%

8.9%

10.3%

13.0%

11.4%

11.7%

26.9%

ALL TRANSACTIONS

1,377

100.0%

142

10.3%

DOJ

0.0%

4.1%

7.8%

8.5%

5.1%

8.2%

13.5%

10.6%

TOTAL

FTC

DOJ

0.0%

0.8%

1.0%

1.7%

0.6%

2.7%

1.9%

TOTAL

FTC

0.0%

0.2%

1.0%

0.9%

0.6%

1.9%

2.7%

8.7%

0.0%

10.0%

16.7%

18.8%

18.1%

19.6%

25.2%

37.5%

6.8%

17.1%

1.5%

1.1%

2.6%

0.0%

1.0%

2.0%

2.7%

1.2%

2.5%

5.4%

10.6%

TABLE II

FISCAL YEAR 20041

ACQUISITIONS BY SIZE OF TRANSACTION2 (CUMULATIVE)

TRANSACTION RANGE

($MILLIONS)

LESS THAN 50

LESS THAN 100

LESS THAN 150

LESS THAN 200

LESS THAN 300

LESS THAN 500

LESS THAN 1000

ALL TRANSACTIONS

SECOND REQUEST

INVESTIGATIONS3

HSR TRANSACTIONS

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER4

PERCENT

NUMBER

PERCENTAGE OF TOTAL

NUMBER OF

CLEARANCES GRANTED

NUMBER

518

710

827

1,004

1,162

1,273

1,377

0.3%

37.6%

51.6%

60.1%

72.9%

84.4%

92.4%

100.0%

FTC

101

114

142

FTC

0.0%

13.1%

20.3%

25.4%

35.2%

42.8%

48.3%

60.2%

FTC

DOJ

0.0%

8.9%

15.3%

19.5%

23.3%

28.8%

35.2%

39.8%

TOTAL

0.0%

22.0%

35.6%

44.9%

58.5%

71.6%

83.5%

100.0%

DOJ

PERCENT

FTC

0.0%

2.9%

8.6%

11.4%

14.3%

22.9%

31.4%

57.1%

DOJ

0.0%

11.4%

17.1%

22.9%

25.7%

28.6%

37.1%

42.9%

TOTAL

0.0%

14.3%

25.7%

34.3%

40.0%

51.5%

68.5%

100.0%

TABLE III

FISCAL YEAR 20041

TRANSACTIONS INVOLVING THE GRANTING OF CLEARANCE BY AGENCY

TRANSACTION RANGE

($ MILLIONS)

50M - 100M

100M - 150M

150M - 200M

200M - 300M

300M - 500M

500M - 1000M

Over 1000M

ALL CLEARANCES

CLEARANCE GRANTED

TO AGENCY

CLEARANCE GRANTED AS A PERCENTAGE OF

TOTAL NUMBER

TOTAL NUMBER OF

OF CLEARANCES

CLEARANCES

TRANSACTIONS

PER AGENCY

GRANTED

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

142

236

2.3%

1.2%

0.9%

1.7%

1.3%

0.9%

2.0%

10.3%

1.5%

1.1%

0.7%

0.6%

0.9%

1.1%

0.8%

6.8%

3.8%

2.3%

1.5%

2.3%

2.2%

2.0%

2.8%

17.1%

21.8%

12.0%

8.4%

16.2%

12.7%

9.2%

19.7%

100.0%

22.3%

16.0%

10.6%

9.6%

13.8%

16.0%

11.7%

100.0%

13.1%

7.2%

5.1%

9.7%

7.6%

5.5%

11.9%

60.2%

8.9%

6.4%

4.2%

3.8%

5.5%

6.4%

4.7%

39.8%

22.0%

13.6%

9.3%

13.5%

13.1%

11.9%

16.6%

100.0%

TABLE IV

FISCAL YEAR 20041

INVESTIGATIONS IN WHICH SECOND REQUESTS WERE ISSUED

TRANSACTION RANGE

($MILLIONS)

50M - 100M

100M - 150M

150M -200M

200M - 300M

300M - 500M

500M - 1000M

Over 1000M

ALL TRANSACTIONS

INVESTIGATIONS IN

WHICH SECOND

REQUEST WERE ISSUED3

SECOND REQUESTS ISSUED AS A PERCENTAGE OF:

TRANSACTIONS IN

TOTAL NUMBER OF

EACH TRANSACTION

SECOND REQUEST

TRANSACTIONS

RANGE GROUP

INVESTIGATIONS

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

0.1%

0.2%

0.7%

1.5%

0.3%

0.1%

0.2%

0.1%

1.1%

0.4%

0.2%

0.3%

0.4%

0.8%

2.6%

0.2%

1.0%

0.9%

0.6%

1.9%

2.7%

8.7%

1.5%

0.8%

1.0%

1.7%

0.6%

2.7%

1.9%

1.1%

1.0%

2.0%

2.6%

1.2%

2.5%

5.4%

10.6%

2.6%

2.9%

5.7%

2.9%

8.6%

25.7%

57.1%

11.4%

5.7%

2.9%

8.6%

5.7%

42.9%

14.3%

11.4%

8.6%

5.8%

11.5%

17.2%

31.4%

100.0%

TABLE V

FISCAL YEAR 20041

ACQUISITIONS BY REPORTING THRESHOLD

HSR TRANSACTIONS

THRESHOLD1

$50M

$100M

$500M

25%

50%

ASSETS ONLY

ALL TRANSACTIONS

NUMBER

PERCENT

773

441

1,377

4.8%

5.9%

0.9%

0.2%

56.1%

32.0%

100.0%

CLEARANCE GRANTED TO FTC OR DOJ

PERCENTAGE OF

NUMBER

THRESHOLD GROUP

FTC

DOJ

FTC

DOJ

TOTAL

7.6%

1.5%

9.1%

3.7%

7.4%

11.1%

15.4% 15.4%

30.8%

0.0%

12.5%

7.4%

19.9%

7.9%

6.3%

14.2%

142

10.3%

6.8%

17.1%

SECOND REQUEST INVESTIGATIONS3

PERCENTAGE OF

NUMBER

THRESHOLD GROUP

FTC DOJ

FTC

DOJ

TOTAL

0.0%

7.7%

0.0%

7.7%

0.0%

2.1%

1.6%

3.7%

0.7%

1.4%

1.5%

1.1%

2.6%

TABLE VI

FISCAL YEAR 20041

TRANSACTIONS BY ASSETS OF ACQUIRING PERSON

HSR TRANSACTIONS

ASSET RANGE

($MILLIONS)

NUMBER

PERCENT

Below 50M

50M - 100M

100M - 150M

150M - 200M

200M - 300M

300M - 500M

500M - 1000M

OVER 1000M

ALL TRANSACTIONS

115

176

788

1377

7.0%

2.9%

3.6%

2.8%

5.4%

8.3%

12.8%

57.2%

100.0%

CLEARANCE GRANTED TO FTC OR DOJ

PERCENTAGE OF ASSET

NUMBER

RANGE GROUP

FTC

DOJ

FTC

DOJ

TOTAL

2.1%

0.0%

2.1%

5.0%

2.5%

7.5%

6.1%

12.2%

2.6%

5.3%

7.9%

6.7%

9.3%

16.0%

10.4%

3.5%

13.9%

6.8%

6.3%

13.1%

105

13.3%

8.4%

21.7%

142

10.3%

6.8%

17.1%

SECOND REQUEST INVESTIGATIONS3

NUMBER

PERCENTAGE OF ASSET

RANGE GROUP

FTC DOJ

FTC

DOJ

TOTAL

0.0%

2.6%

0.0%

2.6%

0.9%

0.0%

0.9%

0.6%

0.0%

0.6%

2.3%

1.5%

3.8%

1.5%

1.1%

2.6%

TABLE VII

FISCAL YEAR 20041

TRANSACTIONS BY SALES OF ACQUIRING PERSON

HSR TRANSACTIONS

SALES RANGE

($MILLIONS)

Below 50M

50M - 100M

100M - 150M

150M - 200M

200M - 300M

300M - 500M

500M - 1000M

0VER 1000M

Sales Not Available6

ALL TRANSACTIONS

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

PERCENT

123

157

712

1,377

6.7%

3.3%

5.2%

2.8%

4.5%

8.9%

11.4%

51.7%

5.5%

100.0%

FTC

DOJ

102

142

PERCENTAGE OF

SALES RANGE GROUP

FTC

DOJ TOTAL

4.3%

8.7%

4.2%

5.3%

3.2%

6.5%

9.6%

14.3%

2.6%

10.3%

5.4%

6.5%

4.2%

2.6%

3.2%

4.1%

7.0%

9.0%

0.0%

6.8%

9.7%

15.2%

8.4%

7.9%

6.4%

10.6%

16.6%

23.3%

2.6%

17.1%

SECOND REQUEST INVESTIGATIONS3

NUMBER

FTC

DOJ

PERCENTAGE OF SALES

RANGE GROUP

FTC

DOJ

TOTAL

0.0%

2.4%

0.6%

2.2%

0.0%

1.5%

0.0%

1.4%

2.6%

0.0%

0.8%

0.0%

1.7%

0.0%

1.1%

0.0%

1.4%

2.6%

0.0%

3.2%

0.6%

3.9%

0.0%

2.6%

TABLE VIII

FISCAL YEAR 20041

TRANSACTIONS BY ASSETS OF ACQUIRED ENTITIES

HSR TRANSACTIONS

ASSET RANGE

($MILLIONS)

Below 50M

50M - 100M

100M - 150M

150M - 200M

200M - 300M

300M - 500M

500M - 1000M

0VER 1000M

Assets Not Available7

ALL TRANSACTIONS

NUMBER

PERCENT

207

254

121

109

361

1,377

15.0%

18.4%

8.8%

5.1%

7.1%

6.0%

5.4%

7.9%

26.2%

100.0%

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

FTC

142

DOJ

PERCENTAGE OF ASSET

RANGE GROUP

FTC

DOJ

TOTAL

7.7%

4.8%

12.5%

7.9%

3.9%

11.8%

12.4%

6.6%

19.0%

11.4%

4.3%

15.7%

13.3%

4.1%

17.4%

16.9%

9.6%

26.5%

16.2%

5.4%

21.6%

10.1% 13.8%

23.9%

9.1%

8.9%

18.0%

10.3%

6.8%

17.1%

SECOND REQUEST INVESTIGATIONS3

NUMBER

FTC

DOJ

PERCENTAGE OF ASSET

RANGE GROUP

FTC

DOJ

TOTAL

0.0%

0.5%

0.0%

0.4%

0.8%

1.7%

2.5%

1.4%

0.0%

1.4%

1.0%

2.0%

3.6%

0.0%

3.6%

1.4%

0.0%

1.4%

4.6%

1.8%

6.4%

2.2%

4.4%

1.5%

1.1%

2.6%

TABLE IX

FISCAL YEAR 20041

TRANSACTIONS BY SALES OF ACQUIRED ENTITIES8

HSR TRANSACTIONS

SALES RANGE

($ MILLIONS)

NUMBER

PERCENT

CLEARANCE GRANTED TO FTC OR DOJ

DOJ

PERCENTAGE OF SALES

RANGE GROUP

FTC

DOJ

TOTAL

9.5%

5.0%

14.5%

11.0

6.7%

17.7%

7.4%

4.3%

11.7%

5.3%

3.5%

8.8%

5.4%

9.5%

14.9%

12.8

4.6%

17.4%

9.2%

6.7%

15.9%

12.1

9.1%

21.2%

7.1%

0.0%

7.1%

10.3

NUMBER

Below 50M

50M - 100M

100M - 150M

150M - 200M

200M - 300M

300M - 500M

500M - 1000M

0VER 1000M

Sales Not Available9

199

163

109

120

519

14.5%

11.8%

6.8%

4.1%

5.4%

7.9%

8.7%

37.7%

3.1%

FTC

ALL TRANSACTIONS

1,377

100.0%

142

6.8%

17.1%

SECOND REQUEST INVESTIGATIONS3

FTC

DOJ

PERCENTAGE OF SAKES

RANGE GROUP

FTC

DOJ

TOTAL

0.5%

1.0%

0.6%

1.2%

1.8%

0.0%

1.1%

0.0%

1.4%

2.8%

1.8%

4.6%

0.8%

1.6%

2.7%

1.3%

4.0%

0.0%

1.5%

NUMBER

1.1%

2.6%

TABLE X

FISCAL YEAR 20041

INDUSTRY GROUP OF ACQUIRING PERSONS

3DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER

PERCENT

OF TOTAL

CHANGE

FROM FY

200311

111

112

113

AGRICULTURAL PRODUCTION CROPS

AGRICULTURAL PRODUCTION LIVESTOCK AND ANIMAL

SPECIALTIES

LUMBER AND WOOD PRODUCTS,

EXCEPT FURNITURE

CLEARANCE GRANTED

TO FTC OR DOJ

SECOND REQUEST

INVESTIGATIONS3

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

0.2%

0.0%

0.2%

114

FISHING, HUNTING AND TRAPPING

0.0%

211

OIL AND GAS EXTRACTION

1.3%

1.0%

0.3%

0.4%

0.1%

3.3%

0.6%

0.0%

-0.4%

0.6%

0.4%

2.4%

-0.6%

0.5%

-0.3%

0.1%

212

213

221

233

234

235

311

312

313

MINING AND QUARRYING OF

NONMETALLIC MINERALS,

EXCEPT FUELS

DRILLING OIL AND GAS WELLS

ELECTRIC, GAS AND SANITARY

SERVICES

BUILDING CONSTRUCTION –

GENERAL CONTRACTORS AND

OPERATIVE BUILDERS

HEAVY CONSTRUCTION OTHER

THAN BUILDING CONSTRUCTION CONTRACTORS

CONSTRUCTION - SPECIAL GRADE

CONTRACTORS

FOOD AND KINDRED PRODUCTS

BOTTLED AND CANNED SOFT

DRINKS AND CARBONATED

DRINKS; AND CIGARETTE

MANUFACTURING

TEXTILE MILL PRODUCTS

TABLE X

FISCAL YEAR 20041

INDUSTRY GROUP OF ACQUIRING PERSONS

3DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER

PERCENT

OF TOTAL

CHANGE

FROM FY

200311

315

316

321

322

323

324

325

326

APPAREL AND OTHER FINISHED

PRODUCTS MADE FROM FABRICS

AND SIMILAR MATERIALS

LEATHER AND LEATHER

PRODUCTS

SAWMILLS

PAPER AND ALLIED PRODUCTS

COMMERCIAL LITHOGRAPHIC

PRINTING

PETROLEUM REFINING AND

RELATED INDUSTRIES

CHEMICALS AND ALLIED

PRODUCTS

RUBBER AND MISC. PLASTICS

PRODUCTS

CLEARANCE GRANTED

TO FTC OR DOJ

SECOND REQUEST

INVESTIGATIONS3

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

0.1%

-0.2%

0.0%

0.6%

0.9%

0.3%

0.2%

0.8%

0.2%

0.5%

-0.2%

5.6%

2.6%

1.3%

-0.2%

327

STONE, CLAY, GLASS AND

CONCRETE PRODUCTS

0.3%

-0.4%

331

IRON AND STEEL MILLS

1.1%

-0.3%

332

FABRICATED METAL PRODUCTS,

EXCEPT MACHINERY AND

TRANSPORTATION EQUIPMENT

2.0%

-0.1%

333

INDUSTRIAL AND COMMERCIAL

MACHINERY AND COMPUTER

EQUIPMENT

1.8%

-0.7%

334

MEASURING, ANALYZING AND

CONTROLLING INSTRUMENTS;

PHOTOGRAPHIC, MEDICAL AND

OPTICAL GOODS; WATCHES AND

CLOCKS

5.4%

-0.2%

TABLE X

FISCAL YEAR 20041

INDUSTRY GROUP OF ACQUIRING PERSONS

3DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER4

PERCENT

OF TOTAL

CHANGE

FROM FY

200311

335

336

337

339

421

422

423

424

425

441

442

443

444

445

ELECTRONIC AND OTHER

ELECTRICAL EQUIPMENT AND

COMPONENTS, EXCEPT

COMPUTER EQUIPMENT

TRANSPORTATION EQUIPMENT

HOME FURNITURE, FURNISHINGS

AND EQUIPMENT STORES

MISCELLANEOUS

MANUFACTURING INDUSTRIES

WHOLESALE TRADE - DURABLE

GOODS

WHOLESALE TRADE NONDURABLE GOODS

AUTOMOBILE AND OTHER

MOTOR VEHICLE MERCHANT

WHOLESALERS

PRINTING AND WRITING PAPER

MERCHANT WHOLESALERS

BUSINESS TO BUSINESS

ELECTRONIC MARKETS

AUTOMOTIVE DEALERS AND

GASOLINE SERVICE STATIONS

FURNITURE STORES

MISCELLANEOUS REPAIR

SERVICES

BUILDING MATERIALS,

HARDWARE, GARDEN SUPPLY,

AND MOBILE HOME DEALERS

SUPERMARKETS AND OTHER

GROCERY (EXCEPT

CONVENIENCE) STORES

CLEARANCE GRANTED

TO FTC OR DOJ

SECOND REQUEST

INVESTIGATIONS3

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

1.5%

0.6%

2.5%

0.1%

0.6%

0.1%

1.9%

4.2%

0.6%

3.8%

0.2%

0.1%

0.2%

0.1%

0.9%

0.4%

0.1%

0.4%

0.5%

0.2%

TABLE X

FISCAL YEAR 20041

INDUSTRY GROUP OF ACQUIRING PERSONS

3DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER

PERCENT

OF TOTAL

CHANGE

FROM FY

200311

446

447

481

482

MISCELLANEOUS RETAIL

FOOD STORES

APPAREL AND ACCESSORY

STORES

SPORTING GOODS STORES

GENERAL MERCHANDISE STORES

STATIONERY AND OFFICE

SUPPLIES

HEATING OIL DEALERS AND

LIQUEFIED PETROLEUM GAS

TRANSPORTATION BY AIR

RAILROAD TRANSPORTATION

483

WATER TRANSPORTATION

448

451

452

453

454

484

485

486

488

492

511

512

513

514

519

521

MOTOR FREIGHT

TRANSPORTATION AND

WAREHOUSING

LOCAL AND SUBURBAN TRANSIT

AND INTERURBAN HIGHWAY

PASSENGER TRANSPORTATION

PIPELINES, EXCEPT NATURAL

GAS

AIR TRAFFIC CONTROL

COURIERS

PRINTING, PUBLISHING AND

ALLIED INDUSTRIES

MOTION PICTURES

COMMUNICATIONS

ON-LINE SERVICES

NEWS SYNDICATES

DEPOSITORY INSTITUTIONS

CLEARANCE GRANTED

TO FTC OR DOJ

SECOND REQUEST

INVESTIGATIONS3

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

0.5%

0.4%

0.3%

0.5%

0.3%

0.1%

-0.1%

0.0%

-0.1%

1.3%

0.5%

0.1%

0.4%

0.2%

0.6%

0.3%

0.0%

0.9%

0.2%

0.4%

0.2%

5.3%

1.0%

5.4%

1.7%

0.1%

0.0%

0.5%

0.8%

-0.4%

TABLE X

FISCAL YEAR 20041

INDUSTRY GROUP OF ACQUIRING PERSONS

3DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER

PERCENT

OF TOTAL

CHANGE

FROM FY

200311

522

523

524

525

NONDEPOSITORY CREDIT

INSTITUTIONS

SECURITY AND COMMODITY

BROKERS, DEALERS, EXCHANGES

AND SERVICES

INSURANCE CARRIERS

INSURANCE AGENTS, BROKERS

AND SERVICE

CLEARANCE GRANTED

TO FTC OR DOJ

SECOND REQUEST

INVESTIGATIONS3

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

3.8%

1.2%

107

7.8%

1.3%

4.3%

1.2%

0.9%

0.5%

531

LESSORS OF RESIDENTIAL

BUILDINGS AND DWELLINGS

0.4%

-0.7%

532

AUTOMOTIVE REPAIR, SERVICES

AND PARKING

0.4%

-0.2%

533

LESSORS OF NONFINANCIAL

INTANGIBLE ASSETS (EXCEPT

COPYRIGHTED WORKS)

0.4%

541

SERVICES -- BUSINESS, LEGAL,

ENGINEERING, ACCOUNTING,

RESEARCH, MANAGEMENT AND

RELATED SERVICES

6.2%

0.8%

551

HOLDING AND OTHER

INVESTMENT OFFICES

0.1%

2.0%

0.3%

0.1%

1.2%

0.9%

-0.4%

-0.1%

1.1%

1.0%

561

562

611

614

621

622

TRANSPORTATION SERVICES

SOLID WASTE COLLECTION

EDUCATIONAL SERVICES

HEALTH SERVICES

GENERAL MEDICAL AND

SURGICAL; PSYCHIATRIC AND

SUBSTANCE ABUSE HOSPITALS

TABLE X

FISCAL YEAR 20041

INDUSTRY GROUP OF ACQUIRING PERSONS

3DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER4

PERCENT

OF TOTAL

CHANGE

FROM FY

200311

CLEARANCE GRANTED

TO FTC OR DOJ

SECOND REQUEST

INVESTIGATIONS3

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

624

711

SOCIAL SERVICES

REAL ESTATE

0.1%

-0.2%

713

AMUSEMENT AND RECREATION

SERVICES

0.8%

0.3%

721

HOTELS, ROOMING HOUSES,

CAMPS, AND OTHER LODGING

PLACES

0.4%

0.3%

0.9%

0.1%

0.2%

0.1%

0.0%

-0.1%

0.1%

-0.3%

722

772

811

812

813

EATING AND DRINKING PLACES

GENERAL AUTOMOTIVE REPAIR

PERSONAL SERVICES

MEMBERSHIP ORGANIZATIONS

923

ADMINISTRATION OF HUMAN

RESOURCE PROGRAMS

0.0%

924

ADMINISTRATION OF

ENVIRONMENTAL QUALITY AND

HOUSING PROGRAMS

0.0%

999

000

NONCLASSIFICABLE

ESTABLISHMENTS

NOT AVAILABLE12

0.1%

1.9%

-0.6%

ALL TRANSACTIONS

1,377

142

236

Table XI

FISCAL YEAR 2004 INDUSTRY GROUP OF ACQUIRED ENTITIES

3-DIGIT

NAICS

CODE10

INDUSTRY

DESCRIPTION

NUMBER4

PERCENT

OF TOTAL

CHANGE

FROM FY

200311

CLEARANCE

GRANTED TO FTC OR

DOJ

SECOND REQUEST

INVESTIGATIONS3

NUMBER OF 3DIGIT INTRAINDUSTRY

TRANSACTIONS

111

112

113

114

211

212

213

AGRICULTURAL

PRODUCTION - CROPS

AGRICULTURAL

PRODUCTION LIVESTOCK AND ANIMAL

SPECIALTIES

LUMBER AND WOOD

PRODUCTS, EXCEPT

FURNITURE

FISHING, HUNTING AND

TRAPPING

OIL AND GAS

EXTRACTION

MINING AND QUARRYING

OF NONMETALLIC

MINERALS, EXCEPT

FUELS

DRILLING OIL AND GAS

WELLS

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

0.1%

0.0%

0.1%

0.2%

0.0%

0.9%

0.3%

0.4%

-0.1%

0.4%

221

ELECTRIC, GAS AND

SANITARY SERVICES

3.8%

1.0%

233

BUILDING CONSTRUCTION

– GENERAL

CONTRACTORS AND

OPERATIVE BUILDERS

0.0%

-0.1%

Table XI

FISCAL YEAR 2004 INDUSTRY GROUP OF ACQUIRED ENTITIES

3-DIGIT

NAICS

CODE10

INDUSTRY

DESCRIPTION

NUMBER4

PERCENT

OF TOTAL

CHANGE

FROM FY

200311

CLEARANCE

GRANTED TO FTC OR

DOJ

SECOND REQUEST

INVESTIGATIONS3

NUMBER OF 3DIGIT INTRAINDUSTRY

TRANSACTIONS

234

235

311

312

313

315

316

321

322

324

325

HEAVY CONSTRUCTION

OTHER THAN BUILDING

CONSTRUCTION CONTRACTORS

CONSTRUCTION - SPECIAL

GRADE CONTRACTORS

FOOD AND KINDRED

PRODUCTS

BOTTLED AND CANNED

SOFT DRINKS AND

CARBONATED DRINKS;

AND CIGARETTE

MANUFACTURING

TEXTILE MILL PRODUCTS

APPAREL AND OTHER

FINISHED PRODUCTS

MADE FROM FABRICS

AND SIMILAR MATERIALS

LEATHER AND LEATHER

PRODUCTS

SAWMILLS

PAPER AND ALLIED

PRODUCTS

PETROLEUM REFINING

AND RELATED

INDUSTRIES

CHEMICALS AND ALLIED

PRODUCTS

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

0.6%

0.4%

0.5%

0.4%

2.0%

-1.5%

0.5%

-0.1%

0.1%

-0.1%

0.1%

-0.5%

0.0%

0.6%

0.3%

0.4%

-0.3%

0.4%

6.1%

1.1%

Table XI

FISCAL YEAR 20041 INDUSTRY GROUP OF ACQUIRED ENTITIES

3-DIGIT

NAICS

CODE10

INDUSTRY

DESCRIPTION

NUMBER4

PERCENT

OF TOTAL

CHANGE

FROM FY

200311

CLEARANCE

GRANTED TO FTC OR

DOJ

SECOND REQUEST

INVESTIGATIONS3

NUMBER OF 3DIGIT INTRAINDUSTRY

TRANSACTIONS

326

327

331

332

333

334

335

336

RUBBER AND MISC.

PLASTICS PRODUCTS

STONE, CLAY, GLASS AND

CONCRETE PRODUCTS

IRON AND STEEL MILLS

FABRICATED METAL

PRODUCTS, EXCEPT

MACHINERY AND

TRANSPORTATION

EQUIPMENT

INDUSTRIAL AND

COMMERCIAL

MACHINERY AND

COMPUTER EQUIPMENT

MEASURING, ANALYZING

AND CONTROLLING

INSTRUMENTS;

PHOTOGRAPHIC,

MEDICAL AND OPTICAL

GOODS; WATCHES AND

CLOCKS

ELECTRONIC AND OTHER

ELECTRICAL EQUIPMENT

AND COMPONENTS,

EXCEPT COMPUTER

EQUIPMENT

TRANSPORTATION

EQUIPMENT

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

1.1%

-0.8%

0.7%

1.1%

-0.3%

2.0%

0.3%

-1.5%

5.7%

1.2%

1.6%

1.0%

1.7%

-0.9%

Table XI

FISCAL YEAR 2004 INDUSTRY GROUP OF ACQUIRED ENTITIES

3-DIGIT

NAICS

CODE10

INDUSTRY

DESCRIPTION

NUMBER4

PERCENT

OF TOTAL

CHANGE

FROM FY

200311

CLEARANCE

GRANTED TO FTC OR

DOJ

SECOND REQUEST

INVESTIGATIONS3

NUMBER OF 3DIGIT INTRAINDUSTRY

TRANSACTIONS

337

339

421

422

423

424

441

443

444

445

HOME FURNITURE,

FURNISHINGS AND

EQUIPMENT STORES

MISCELLANEOUS

MANUFACTURING

INDUSTRIES

WHOLESALE TRADE DURABLE GOODS

WHOLESALE TRADE NONDURABLE GOODS

AUTOMOBILE AND OTHER

MOTOR VEHICLE

MERCHANT

WHOLESALERS

PRINTING AND WRITING

PAPER MERCHANT

WHOLESALERS

AUTOMOTIVE DEALERS

AND GASOLINE SERVICE

STATIONS

MISCELLANEOUS REPAIR

SERVICES

BUILDING MATERIALS,

HARDWARE, GARDEN

SUPPLY, AND MOBILE

HOME DEALERS

SUPERMARKETS AND

OTHER GROCERY

(EXCEPT CONVENIENCE)

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

0.3%

1.9%

-0.1%

4.1%

-0.7%

2.8%

-0.1%

0.3%

0.2%

0.1%

0.7%

0.1%

-0.1%

0.1%

-0.2%

0.3%

Table XI

FISCAL YEAR 2004 INDUSTRY GROUP OF ACQUIRED ENTITIES

3-DIGIT

NAICS

CODE10

INDUSTRY

DESCRIPTION

NUMBER4

PERCENT

OF TOTAL

CHANGE

FROM FY

200311

CLEARANCE

GRANTED TO FTC OR

DOJ

SECOND REQUEST

INVESTIGATIONS3

NUMBER OF 3DIGIT INTRAINDUSTRY

TRANSACTIONS

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

STORES

446

447

448

451

452

453

454

481

482

483

484

485

486

MISCELLANEOUS RETAIL

FOOD STORES

APPAREL AND

ACCESSORY STORES

SPORTING GOODS STORES

GENERAL MERCHANDISE

STORES

STATIONERY AND OFFICE

SUPPLIES

HEATING OIL DEALERS

AND LIQUEFIED

PETROLEUM GAS

TRANSPORTATION BY AIR

RAILROAD

TRANSPORTATION

WATER

TRANSPORTATION

MOTOR FREIGHT

TRANSPORTATION AND

WAREHOUSING

LOCAL AND SUBURBAN

TRANSIT AND

INTERURBAN HIGHWAY

PASSENGER

TRANSPORTATION

PIPELINES, EXCEPT

0.4%

0.2%

-0.2%

-0.3%

0.5%

0.4%

0.1%

0.2%

-0.3%

0.0%

0.1%

0.9%

0.1%

0.4%

0.3%

-0.2%

0.4%

0.2%

-0.1%

0.1%

0.9%

-0.1%

Table XI

FISCAL YEAR 2004 INDUSTRY GROUP OF ACQUIRED ENTITIES

3-DIGIT

NAICS

CODE10

INDUSTRY

DESCRIPTION

NUMBER4

PERCENT

OF TOTAL

CHANGE

FROM FY

200311

CLEARANCE

GRANTED TO FTC OR

DOJ

SECOND REQUEST

INVESTIGATIONS3

NUMBER OF 3DIGIT INTRAINDUSTRY

TRANSACTIONS

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

NATURAL GAS

488

492

493

511

512

513

514

518

521

522

523

524

525

531

AIR TRAFFIC CONTROL

COURIERS

WAREHOUSING AND

STORAGE

PRINTING, PUBLISHING

AND ALLIED INDUSTRIES

MOTION PICTURES

COMMUNICATIONS

ON-LINE SERVICES

INTERNET SERVICE

PROVIDERS, WEB SEARCH

PORTALS, AND DATA

PROCESSING SERVICES

DEPOSITORY

INSTITUTIONS

NONDEPOSITORY CREDIT

INSTITUTIONS

SECURITY AND

COMMODITY BROKERS,

DEALERS, EXCHANGES

AND SERVICES

INSURANCE CARRIERS

INSURANCE AGENTS,

BROKERS AND SERVICE

LESSORS OF RESIDENTIAL

BUILDINGS AND

0.5%

0.1%

0.4%

-0.1%

0.4%

4.6%

-0.7%

0.4%

4.4%

1.7%

-0.1%

-1.7%

-0.9%

0.0%

-0.1%

0.0%

-0.1%

2.7%

0.1%

3.0%

-0.1%

3.8%

-0.5%

0.1%

0.4%

-0.5%

Table XI

FISCAL YEAR 20041 INDUSTRY GROUP OF ACQUIRED ENTITIES

3-DIGIT

NAICS

CODE10

INDUSTRY

DESCRIPTION

NUMBER4

PERCENT

OF TOTAL

CHANGE

FROM FY

200311

CLEARANCE

GRANTED TO FTC OR

DOJ

SECOND REQUEST

INVESTIGATIONS3

NUMBER OF 3DIGIT INTRAINDUSTRY

TRANSACTIONS

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

DWELLINGS

532

533

541

551

561

562

611

614

621

622

623

AUTOMOTIVE REPAIR,

SERVICES AND PARKING

LESSORS OF

NONFINANCIAL

INTANGIBLE ASSETS

(EXCEPT COPYRIGHTED

WORKS)

ENGINEERING,

ACCOUNTING, RESEARCH,

MANAGEMENT AND

RELATED SERVICES

HOLDING AND OTHER

INVESTMENT OFFICES

TRANSPORTATION

SERVICES

SOLID WASTE

COLLECTION

EDUCATIONAL SERVICES

HEALTH SERVICES

GENERAL MEDICAL AND

SURGICAL; PSYCHIATRIC

AND SUBSTANCE ABUSE

HOSPITALS

NURSING AND

RESIDENTIAL CARE

0.9%

0.5%

-0.3%

5.3%

-0.2%

0.1%

-0.2%

1.9%

-0.2%

0.2%

-0.4%

0.3%

-0.4%

0.1%

1.0%

-0.5%

1.0%

-0.5%

0.2%

-0.3%

Table XI

FISCAL YEAR 2004 INDUSTRY GROUP OF ACQUIRED ENTITIES

3-DIGIT

NAICS

CODE10

INDUSTRY

DESCRIPTION

NUMBER4

PERCENT

OF TOTAL

CHANGE

FROM FY

200311

CLEARANCE

GRANTED TO FTC OR

DOJ

SECOND REQUEST

INVESTIGATIONS3

NUMBER OF 3DIGIT INTRAINDUSTRY

TRANSACTIONS

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

FACILITIES

624

711

713

721

722

811

812

813

923

924

999

000

SOCIAL SERVICES

REAL ESTATE

AMUSEMENT AND

RECREATION SERVICES

HOTELS, ROOMING

HOUSES, CAMPS, AND

OTHER LODGING PLACES

EATING AND DRINKING

PLACES

GENERAL AUTOMOTIVE

REPAIR

PERSONAL SERVICES

MEMBERSHIP

ORGANIZATIONS

ADMINISTRATION OF

HUMAN RESOURCE

PROGRAMS

ADMINISTRATION OF

ENVIRONMENTAL

QUALITY AND HOUSING

PROGRAMS

NONCLASSIFICABLE

ESTABLISHMENTS

NOT AVAILABLE12

0.0%

0.3%

-0.2%

-0.1%

0.8%

-0.4%

0.3%

0.4%

-0.6%

0.4%

0.1%

-0.4%

0.0%

217

15.8%

1.7%

-3.3%

Table XI

FISCAL YEAR 20041 INDUSTRY GROUP OF ACQUIRED ENTITIES

3-DIGIT

NAICS

CODE10

INDUSTRY

DESCRIPTION

NUMBER4

PERCENT

OF TOTAL

CHANGE

FROM FY

200311

CLEARANCE

GRANTED TO FTC OR

DOJ

SECOND REQUEST

INVESTIGATIONS3

NUMBER OF 3DIGIT INTRAINDUSTRY

TRANSACTIONS

ALL TRANSACTIONS

1,377

100.0%

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

142

236

744

Fiscal year 2004 figures include transactions reported between October 1, 2003 and September 30, 2004.

The size of transaction is based on the aggregate total amount of voting securities and/or assets held by the acquiring person as a result of the transaction and is taken

from the response to Item 3(b)(ii) and 3(c) of the Notification and Report Form.

These statistics are based on the date the Second Request was issued.

During fiscal year 2004, 1,454 transactions were reported under the HSR Premerger Notification program. The smaller number of 1,377 reflects adjustments to

eliminate the following types of transactions: (1) transactions reported under Section 7A(c)(6) and (c)(8), (transactions involving certain regulated industries and

financial businesses); (2) transactions deemed non-reportable; (3) incomplete transactions (only one party in each transaction filed a compliant notification); and (4)

transactions withdrawn before the waiting period began. The table does not, however, exclude competing offers or multiple party transactions (transactions involving

two or more acquiring persons).

The total number of filings under $50M submitted in Fiscal Year 2004 is corrective filings.

This category includes newly-formed acquiring persons, foreign acquiring persons with no United States revenues, and acquiring persons who had not derived any

revenues from their investments at the time of filing.

Assets of an acquired entity are available when the acquired entity’s financial data is consolidated within its ultimate parent.

Sales of an acquired entity are taken from responses to Items 4(a) and (b) (SEC documents and annual reports) or Item 5 (dollar revenues) of the Premerger

Notification and Report Form.

This category includes acquisitions of newly-formed corporations or corporate joint ventures from which no sales were generated, and acquisitions of assets which

produced no sales or revenues during the prior year to filing the Notification and Report form.

The 3-digit codes are part of the North American Industrial Classification System (NAICS) established by the United States Government North American Industrial

Classification System 1997, Executive Office of the President, Office of Management and Budget. The NAICS groups used in this table were determined from

responses submitted by the parties to Item 5 of the Premerger Notification and Report Form, effective July 1, 2001.

This number represents the deviation from the fiscal year 2003 percentage.

This category includes transactions by newly-formed entities.

The intra-industry transaction column identifies the number of acquisitions in which, both, the acquiring and acquired persons derived revenues in the same industry.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.