And up until 1992 the courts did this. Commerce Commission adopted an approach that raised the threshold. This focus on hypothetical formula risks narrowing the interpretation of the anti-competitive conduct and further increasing the evidential burden to applicants of establishing a case.
Purpose is difficult to establish as it relates to what is in the mind of the dominant firm.
It is difficult to know how many cases have not been brought on account of the raised threshold for section 36. The Commerce Commission's safe harbours for merger proposals were developed in 1996 taking into account the courts' interpretation of 'dominance'. The current merger test does not allow a merger to be scrutinised on the basis that it may facilitate collusion between firms. This option was problematic as it inserted novel words in the Act, which would have created uncertainty until the Courts clarified their meaning. The previous Government's proposed amendments to section 47 on mergers and acquisitions were also problematic.