dissenting.
I respectfully dissent. We should remand this case to Commerce, as Commerce has now asked us to do, without reaching the merits of the issue addressed by the majority. The issues presented by this appeal are (1) whether Dillinger Hutte Saarstahl AG (“DHS”) acquired a previously government-owned and subsidized entity, Saarstahl SVK (“Saarstahl”), through arm’s-length transactions at fair market value; and (2) if so, whether the Department of Commerce correctly found as a matter of law that certain subsidies to Saarstahl “passed through” to DHS and were countervailable with respect to goods produced after the privatization by DHS through Saarstahl as a DHS subsidiary. 19 U.S.C. § 1516a(b)(l)(B) (1988) (the court “shall hold unlawful any determination, finding, or conclusion found ... to be ... not in accordance with law.”). The latter issue requires us to address Commerce’s methodology, developed and published in 1993, see 58 Fed.Reg. 37,225, 37,259 (Dep’t Comm. July 9, 1993) (“General Issues Appendix”) for determining the effect of privatization on Commerce’s authority to impose countervailing duties on exports produced following privatization. The trial court determined that Saarstahl was acquired by DHS through an arm’s-length sale of Saarstahl by the Saar-land government, based largely on Commerce’s conclusion and representations to that effect. Saarstahl AG v. United States, 858 F.Supp. 187, 192, 195 (C.I.T. 1994). Commerce, applying its new methodology, had provided that arm’s-length privatization does not extinguish pre-existing countervailable subsidies, but that “[ijnstead, some portion of prior subsidies received by the seller ‘travel[s] (with the productive unit) to its new home.’ ” Id. at 191 (quoting General Issues Appendix, 58 Fed.Reg. at 37,268). The trial court found that Commerce’s privatization methodology was unreasonable and contrary to the intent and purpose of the countervailing duty law. Id. at 193-94. The court noted that one of the preconditions for the imposition of a countervailing duty must be a “subsidy with respect to the manufacture, production, or exportation of a class or kind of merchandise imported, or sold (or likely to be sold) for importation, into the United States.” 19 U.S.C. § 1671(a) (1988). Absent any direct subsidy to DHS, the question for the trial court was whether DHS indirectly received the benefits of Saarstahl’s previously bestowed subsidies.
The trial court’s answer was no. ‘Where a determination is made a given transaction is at arm’s length, one must conclude that the buyer and seller have negotiated in their respective self-interests, the buyer has taken into consideration all relevant facts, and the buyer has paid an amount which represents the market value of all it is to receive. Because the countervailable benefit does not survive the arm’s length transaction, there is no benefit conferred to the purchaser and, therefore, no countervailable subsidy within the meaning of 19 U.S.C. § 1677(5).” Saarstahl, 858 F.Supp. at 193.1 The court considered Commerce’s privatization methodology to be unlawful to the extent that it “passes through” a portion of previously-bestowed subsidies to a successor company that purchased the subsidized entity in an arm’s-length transaction. In this case, Commerce passed through subsidies given to Saarstahl to its new parent company, DHS, finding that they “provided a countervailable benefit to DHS.” Id. at 192; see also Remand Deter*1546mmotion: Certain Hot Rolled Lead and Bismuth Carbon Steel Products From Germany (Oct. 12, 1993). In a subsequent decision involving steel products produced by DHS through its other subsidiary created as part of the privatization of Saarstahl, British Steel PLC v. United States, 879 F.Supp. 1254 (C.I.T. 1995), the trial court examined more closely both the transactions involved in the sale of Saarstahl to DHS, and generally the effect of arm’s-length privatizations through share and asset purchases, on the countervailing duty liability of the privatized entity. In British Steel, Commerce informed the trial court that Commerce in fact had not made a “specific finding regarding whether fair market value was paid in the transaction, or whether the transaction took place at arm’s length.” British Steel, 879 F.Supp. at 1285; see also id. (“Commerce claims ... to have ‘made no ... specific finding regarding the nature of Saarstahl either before or after privatization.’”); see also id. at 1286-87. The trial court further noted a question concerning whether Commerce had finally determined that the debt forgiveness constituted a subsidy to Saarstahl prior to its acquisition by DHS, or a direct subsidy to DHS. Id.
The trial court in British Steel remanded to Commerce to determine “(1) whether the privatization transaction at issue was effected at arm’s length, for fair market value, and based upon commercial considerations; (2) whether the transaction at issue involved a privatization or partial privatization; (3) the terms and substance of the transaction at issue, and whether the transaction involved a sale of an asset or several assets, or consisted entirely of a sale of shares; (4) whether, under the Court’s analysis, if a privatization or partial privatization took place, the privatized entity continues to be, for all intents and purposes, the same entity that received subsidies prior to the transaction; and (5) whether, under the Court’s analysis, Commerce may properly countervail DHS or any other party.” Id. at 1287. The trial court did not reach the issue of whether Commerce’s methodology (which was applied to the sale of Saarstahl to DHS in the case before us) for calculating partial repayment of subsidies through privatization at fair market value was lawful, concluding that it was “premature” to consider the issue in light of the remands. Id. at 1277.
Subsequent to the filing of this appeal, and after the British Steel opinion was rendered by the trial court, Commerce moved this court to remand this case on the ground that the British Steel proceedings have muddied the issue of whether the transactions surrounding the sale of Saarstahl to DHS constituted an arm’s-length privatization. That issue is fundamental to the trial court’s findings in the case before us now. Additionally, the trial court’s opinion in British Steel represents a substantially more comprehensive treatment of the statutory interpretation issues concerning privatization present in this case.
In these circumstances, it is premature for us to decide the difficult questions posed by Commerce’s new methodology for dealing with the asserted privatization of Saarstahl. The legal and economic analyses of the countervailing duty law and the effects of privatization on countervailing duty liability are complex.2 Our review of these issues clearly would benefit from having Commerce and the trial court’s final determinations of the relevant facts surrounding the privatization at issue. Certainly the majority’s apparent approval of Commerce’s methodology as ap*1547plied to this case, when Commerce itself questions whether it correctly assessed the situation, is both premature and hardly definitive of the issue. Commerce was well-advised to ask to re-examine the issues presented by its new methodology as applied to cases such as this one. I agree with Commerce that this court’s proper course was to remand to the trial court “in order that consistent determinations regarding the same privatization transactions be rendered.”
If I were to reach the merits as presented to the trial court below and originally to us on appeal, I would agree with the trial court on the grounds that the privatization methodology Commerce used to arrive at its decision in this case is unlawful. Both the Supreme Court and this court have recognized that the purpose of the countervailing duty law is “to offset the unfair competitive advantage that foreign producers would otherwise enjoy from export subsidies paid by their governments.” Zenith Radio Corp. v. United States, 437 U.S. 443, 98 S.Ct. 2441, 57 L.Ed.2d 337 (1978); see also Georgetown Steel, 801 F.2d at 1315 (“Congress thus sought to protect American firms from what it viewed as the unfair competitive advantage a foreign producer would have in selling in the American market if that producer’s government in effect assumed part of the producer’s expenses of selling here.”); id. at 1315-16 (countervailing duty law directed at unfair competitive advantage over American firms). In other words, the purpose of the countervailing duty law is to offset the competitive benefits foreign exporters enjoy through subsidized production or exportation.
In the ordinary case of a foreign enterprise receiving a government subsidy, it is reasonable for Commerce to forego tracing such benefits, i.e., the actual use to which a company puts a subsidy received, and to simply allocate the cash value of the subsidy over a period of years. Such an approach is a permissible means of administering the statute because in the typical, nonprivatization context, it is sufficiently likely that the subsidy will be used by the recipient to increase its productive capacity, lower its production costs, or in some other way to benefit production. In such circumstances the costs of minutely analyzing the actual use and benefit of the subsidy outweigh the perceived advantages in administering the law.
When a Government-owned company that received subsidies is sold for fair market value, however, it is no longer reasonable to assume that the prior subsidies continue to fund production or exportation of that company’s subsequently-produced goods. Rather, the privatized company must make production and pricing decisions that reflect market-based costs of production and expectations of a market-based return on investment. In the terms of the countervailing duty statute, the relevant “manufacture, production, or sale” of goods in such a case— production or sale after privatization — has not been provided a subsidy. See 19 U.S.C. § 1671(a) (1988). Whatever “benefits” such production or exportation might have received from the increase in that industry’s overall capacity by the original subsidies are too speculative, and too widely (even globally) shared, to be understood properly as a subsidy to the newly privatized company or as a rationale for continuing to allocate past subsidies to production and sales occurring on market terms. See General Issues Appendix, 58 Fed.Reg. at 37,264.
Drawing upon these principles, the trial court concluded that the usual “irrebutable presumption that subsidies confer a countervailable benefit upon goods produced by their recipients ... ceases to exist where the new owner has paid fair market value for the productive unit and is therefore not a ‘recipient.’ ” Saarstahl, 858 F.Supp. at 193. Further, “[wjhere a productive unit which previously received subsidies is sold in an arm’s-length transaction, the subsidy is not extinguished, it remains with the seller. If in this arm’s-length transaction the company is completely sold, the subsidy remains with the shareholders upon dissolution of the corporation.” Saarstahl, 858 F.Supp. at 193.
The majority criticizes the trial court’s approach for being too absolute and for failing to appreciate that, as the majority contends, “a number of scenarios are possible: the purchase price paid by the new, private company might reflect partial repayment of the *1548subsidies, or it might not.” 858 F.Supp. at 189. The problem with Commerce’s methodology, however, is that, proceeding from a misapprehension of the statutory mandate, it applies to all scenarios and allocates prior subsidies in all eases, regardless of the form or extent of privatization at issue and the necessary economic implications for production and exportation that flow from such privatization. The correct approach, consistent with the purpose of the countervailing duty law, must be that fair-market value privatization — meaning the purchase of assets or shares by private entities at prices determined at arm’s-length and based on commercial considerations — precludes the allocation of prior subsidies to the goods produced by the privatized entity.3 Commerce’s error was in approaching the problem from the other direction, elevating its administrative scheme for the typical case to the level of a statutory mandate, and applying that scheme to the atypical context of privatization.
The approach advocated here is consistent with the statutory rule for cases arising after January 1, 1995, adopted by Congress in the Uruguay Round Agreements Act: the existence of an arm’s-length transaction that changes ownership of all or part of a foreign company or its assets does not require of itself the conclusion that a former countervailable subsidy no longer continues to be eountervailable. That rule contains a negative pregnant: since it is not required to find that the subsidy was extinguished, it must be permissible to find that the subsidy does not continue in appropriate cases. The question then is what are the appropriate cases. Contrary to Commerce, I believe that Congress’ purposes in the countervailing duty legislation dictates the approach that, absent a convincing reason in a given case to find otherwise, an arm’s-length privatization means that no eountervailable duties may be ascribed to the enterprise’s later production undertaken in a fully competitive market environment.
In short, there are four possible positions to take on this issue: (1) arm’s-length privatization always precludes allocation of prior subsidies to the privatized entity; (2) arm’s-length privatization never precludes allocation of prior subsidies to the privatized entity; (8) arm’s-length privatization passes through prior subsidies unless there is a clear showing that it does not do so in the particular case; and (4) arm’s-length privatization does not pass through prior subsidies unless there is a clear showing otherwise in the particular case. The trial court adopted position (1), holding that prior subsidies always remain with the seller; that is a more absolute rejection of Commerce’s methodology than I think necessary or warranted. Commerce adopted a version of (2), in effect holding that prior subsidies are always allocable to the privatized entity, although they may to some extent be repaid in accordance with Commerce’s repayment algorithm. The panel majority approves Commerce’s position, but suggests their understanding of Commerce’s position may be closer to (3), that is, “pass-through unless.”
I read the statute and its purposes, reinforced by the somewhat convoluted language of the subsequently-adopted Uruguay Round amendment, to require the fourth position: no pass-through from an arm’s-length privatization, but with the caveat that there may cases in which, due to the nature of the transactions by which privatization is accomplished, the facts dictate otherwise.
Commerce’s position, approved by the panel majority, will require would-be buyers of formerly subsidized entities to lower then-offer price to reflect their future exposure to countervailing duties. This may or may not impose a “heavy burden” on commercial ac*1549tivities, privatizations, and ultimately on international trade, as suggested by the trial court. However that may be, privatization of government-owned means of production is clearly in the interest of free and competitive markets; support and encouragement of free and competitive markets are the underlying aims of the countervailing duty impositions authorized by Congress; the trial court correctly determined that Commerce’s position on this issue was inconsistent with the governing statute.
As indicated, I would grant Commerce’s request that we remand this entire matter to the trial court for further consideration. Absent that, I would affirm the trial court’s judgment with respect to the fair-market value sale of Saarstahl in this case.
. The version of section 1677(5) of Title 19 applicable to these proceedings defined "subsidy” as including certain domestic subsidies "if provided or required by government action to a specific enterprise or industry, or group of enterprises or industries, whether publicly or privately owned, and whether paid or bestowed directly or indirectly on the manufacture, production, or export of any class or kind of merchandise.” 19 U.S.C. § 1677(5)(B) (1988).
. Much has been written on the subject of the purpose, intent, and proper economic approach to the administration of the countervailing duty law. E.g., Richard Diamond, A Search for Economic and Financial Principles in the Administration of United States Countervailing Duty Law, 21 Law & Pol'y Int’l Bus. 507 (1990); Richard Diamond, Economic Foundations of Countervailing Duty Law, 29 Va. J. Int’l L. 767 (1989); E. Kwaku Andoh, Countervailing Duties in a Not Quite Perfect World: An Economic Analysis, 44 Stan. L. Rev. 1515 (1992); Ronald A. Cass, Trade Subsidy Law: Can A Foolish Inconsistency Be Good Enough for Government Work?, 21 Law & Pol’y Int’l Bus. 609 (1990); Alan 0. Sykes, Countervailing Duty Law: An Economic Perspective, 89 Colum. L. Rev. 199 (1989); Charles J. Goetz, Lloyd Granet, & Warren F. Schwartz, The Meaning of ‘Subsidy’ and ‘Injury’ in the Countervailing Duty Law, 6 Int'l Rev. L. & Econ. 17 (1986). See also David A.Codevilla, Discouraging the Practice of What We Preach: Saarstahl I, Inland Steel, and the Implementation of the Uruguay Round of GATT 1994, 3 Geo. Mason Indep. L. Rev. 435 (1995).
. If substantial ownership of the privatized entity remains in the hands of a government and this permits operations that are inconsistent with market-based pressures and incentives and the usual expectations of private investors, then some form of subsidy may continue to be received by the otherwise privatized entity. In this case, the Saarland Government and Arbed Luxembourg, a state-owned company, retained a 30% interest in DHS. Remand for further clarification of privatization transactions at issue presumably would clarify the nature and effect, if any, of this retained interest on the market-based nature of DHS’s operations. The trial court found below that the presence of this government interest did not render Commerce’s finding that Saarstahl was privatized unreasonable or unlawful. Saarstahl, 858 F.Supp. at 195.