This article reviews recent decisions and controversies surrounding the counterfactual test under section 36 of the New Zealand Commerce Act 1986. In 2010, the New Zealand Supreme Court in 0867 affirmed the counterfactual as the test to determine whether there has been a “use” of market power (the equivalent of monopolization under the Sherman Act, or abuse of dominance under Article 102 of the TFEU) for a proscribed purpose. The discussion traces the development of the section 36 counterfactual, and concludes that it is flawed and potentially under inclusive. It also compares it to the use of the counterfactual under the identical section 46 of the Australian Competition and Consumer Act 2010, which is used more flexibly.

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