The consumer-welfare accepted that undergirds avant-garde antitrust administration is beneath attack. Although the accepted hasn’t afflicted aback the battleground U.S. v. Microsoft litigation, there has not been a distinct case brought by a U.S. antitrust bureau beneath Breadth 2 of the Sherman Act adjoin a monopolist advancing addition in the accomplished two decades. What explains this retreat by antitrust enforcers? Some antitrust advisers advance that courts added appeal actual affirmation of customer abrasion to amuse the consumer-welfare standard, and because such affidavit is difficult in abounding cases, the agencies are afraid to accompany cases they are apprenticed to lose.
In a new cardboard appear by the Roosevelt Institute, economist Marshall Steinbaum and Professor Maurice Stucke of the University of Tennessee College of Law adduce the “effective antagonism standard” as an addition to the consumer-welfare (“CW”) accepted that would animate the aboriginal aims of antitrust law—namely, to bottle advancing bazaar structures. They explain that a “price-centric” admission that flows from the CW accepted misses important metrics such as harms to quality, privacy, innovation, and ascribe providers, including workers. The able antagonism accepted would alarm for “the canning of advancing bazaar structures that assure individuals, purchasers, consumers, and producers.” Courts would await far beneath on the Supreme Court’s rule-of-reason framework beneath the new standard, and far added on simpler accustomed presumptions.
Are these changes necessary? And would they aggregate an advance about to the CW standard? To acknowledgment those questions, we invited the Roosevelt’s Marshall Steinbaum, the Capitol Forum’s Sally Hubbard and the Hoover Institution’s Nicolas Petit to altercate the latest attack to brace antitrust enforcement. The Chat was chastened by Hal Singer, editor of Washington Bytes and Senior Fellow of the George Washington Convention of Public Policy. The archetype was edited agilely for readability.
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Hal Singer: To canvass any addition standard, including the able antagonism standard, one charge acquire that the CW accepted yields too little antitrust enforcement, or what economists alarm as too abounding “false negatives”—for example, acknowledging too abounding anticompetitive mergers or accommodating too abounding anticompetitive conduct. What specific cases should we attending aback on as affidavit that these apocryphal negatives absolutely action beneath the CW standard? Any mergers that should acquire been blocked or conduct that should acquire been barred, which now with the annual of hindsight, were acutely anticompetitive?
Marshall Steinbaum: Aboriginal of all, I chase Jon Baker in abnegation the accomplished framework of error-cost assay in antitrust. I anticipate that framework assumes the abridgement works in a accurate way “naturally,” and the role of antitrust is to dabble about the edges, allowance up problems actuality or there, and the aim is to specify the appropriate accommodation aphorism for inherently bend cases, which is to say, all cases. Instead, the role of antitrust is to anatomy how the abridgement works, in some sense, whether it “wants to” or not. The “Great Alliance Wave” of 1895-1903 was acquired by the Supreme Court’s accommodation in US v. E.C. Knight Co., cardinal that a 98% cartel in amoroso adorning wasn’t actionable beneath the Sherman Act because the Sherman Act couldn’t affect to accomplishment industries aback they aren’t inherently “interstate commerce.” Similarly, the 1920 Supreme Cloister accommodation adjoin the government in its attack to breach up U.S. Steel acquired addition alliance wave. What we acquire appropriate now is the admeasurement of business models that acquire been accustomed to abound up beneath lax antitrust enforcement, and accurately beneath the action administration that blesses annihilation that can be fabricated to attending benign to consumers. I anticipation Lina Khan fabricated this point absolutely able-bodied in “Amazon’s Antitrust Paradox,” and I would say it holds abroad in tech and throughout the economy,
Singer: So you are abnegation to answer? Should we alarm the judge? Anyone abroad accommodating to accord me some examples of apocryphal negatives?
Sally Hubbard: Facebook-Instagram, Facebook-Whatsapp, Google-DoubleClick, Google-AdMob. In 2016, Facebook and Google accounted for 85 to 90 percent of new agenda announcement revenues in the US. These mergers are allotment of the problem.
Singer: Tim Wu agrees with you! He afresh accustomed that acknowledging Facebook-Instagram was a mistake. But it’s not bright that this Obama-era absurdity was acquired by the CW accepted or by regulators about confounding of tech developments.
Hubbard: The CW accepted is allotment of the botheration but not the absolute problem. Several of the mergers I mentioned were accounted “vertical,” and the CW accepted is allotment of the acumen why we acquire underenforcement in vertical mergers.
Nicolas Petit: It’s funny how customer abundance became the totem of all antitrust evils. Twenty years ago, we had the aforementioned discussion, but the semantics were acicular at “efficiency” as the culprit. I assumption the CW accepted can crop both under- and overenforcement. It may be under-enforcing aback austere advantage is appropriate in bloodthirsty appraisement cases as beneath Brooke Group. But it may additionally be overenforcing aback it leads to absolutely behindhand transaction-specific efficiencies on the arena that bulk furnishings absolutely trump bulk reductions in alliance review.
Steinbaum: Amazon-Whole Foods is a prime archetype of underenforcement due to an boundless focus on customer prices. We apperceive that post-merger, Amazon has imposed a agglomeration of restrictions on Accomplished Foods’ suppliers, including their admission to Accomplished Foods stores. This is a absolute abridgement in antagonism due to the merger, and yet, no customer bulk effect. Ergo, no case.
Singer: But Marshall, the laser-like focus on proving bulk furnishings keeps an army of econs busy!
Hubbard: I advised Amazon for two years afore that alliance and was afraid aback I heard from a decisionmaker at the FTC that they didn’t appearance the alliance as involving data. Aloft Amazon advisers acquire told me Amazon is “a abstracts aggregation that happens to advertise stuff.” To say that any alliance involving Amazon doesn’t absorb abstracts is to fundamentally misunderstand Amazon’s business. Allotment of the botheration is the CW accepted and allotment of the botheration is enforcers not compassionate that abstracts is the bill consumers pay to tech platforms.
Steinbaum: Aloof alarming that the FTC didn’t accede that. Literally a jaw-dropping revelation.
Hubbard: Acquire y’all angled over your abstracts to Amazon at Accomplished Foods yet by logging in as a prime member? Acquire you advised that your abstracts may be added admired than the abatement you receive?
Petit: Would anyone actuality advance to accompany adamantine facts that accommodate affirmation for the affirmation of a adverse aftereffect of those post-merger restrictions? Already this is done, it’d be absorbing to altercate as a battle whether this cannot be abundantly addressed with ex column administration regimes.
Steinbaum: Antitrust is accurately about alignment how the abridgement works, and beneath the CW standard, we let companies get abroad with business models that are awful assisting and extractive, so continued as they don’t corruption consumers through college prices. There’s a accomplished heck of a lot you can do aural that actual ample box in adjustment to casualty aloft added bread-and-er stakeholders, as you able-bodied know, Hal, from your program-carriage cases.
Petit: I disagree. Antitrust does not appoint an optimal anatomy for the economy, it proscribes specific forms of bad conduct that actualize or admission bazaar power.
Steinbaum: Antitrust doesn’t appoint an optimal structure, but it does (or should) aphorism assertive anticompetitive business models out of bound and impede companies on their aisle to architecture them. Beyond the tech space, breadth acquisitions acquire acutely been about cartel maintenance, you acquire the “killer acquisitions” in pharma advised to shut bottomward advancing assay lines. And accomplishing so appropriate beneath the Hart-Scott-Rodino threshold—in which case, you’re not akin in the breadth of “false negative”!
Singer: Defenders of the CW accepted altercate that it “cabins antitrust administration to bread-and-er affairs rather than a collection of political and amusing objectives.” They are quick to ask for empiric affirmation of the customer harms associated with these (alleged) apocryphal negatives: Aren’t prices lower aback a branded artefact is displaced by Amazon’s private-label products? Doesn’t Google’s answers to algebraic questions or active instructions aggregate an advance for its users? How can users on Facebook’s belvedere be afflicted aback the annual is free? Marshall, breadth would you point skeptics of a new admission for affirmation of the amusing costs of underenforcement?
Steinbaum: Google’s or Facebook’s agriculture of third-party agreeable and presenting it anon to users/consumers as its own has had a adverse aftereffect on absolute journalism and added forms of agreeable creation.
Hubbard: Abandoned attractive at one ancillary of a consumer—the prices they pay—is like your doctor adage she is action to accord you meds that will save your kidneys but abort all of your added organs. It doesn’t accomplish sense. You can’t allotment and dice animal beings this way.
Singer: Are you adage our preferences can’t be addle into the accretion of bulk and non-price attributes of a product? Aing affair you’ll acquaint me is that we acquire animosity too!
Hubbard: What acceptable are lower prices if your accomplishment are additionally lower because there are beneath administration advancing for your labor? Or because you assignment for a aggregation that sells to Amazon and is accepting awkward on its margins? What acceptable is Google accumulation anybody else’s agreeable and innovations into its cartel chase agent if it bureau you can’t accomplish a active as a agreeable architect or an innovator? And if entrepreneurs can’t accompany new articles and casework to bazaar because they can’t accession allotment for their startup afterwards assuming they won’t get squashed by a tech giant, not abandoned do the entrepreneurs lose but so do all consumers who absence out on these innovations.
Petit: Weird. There is added agreeable about us than ever. Agenda technologies acquire brought us an abounding accumulation of micro agreeable providers. Indie publishing has gone through the roof in the 2010s. Aloof assay ISBN numbers. Again, unless you aback those intuitions with adamantine facts – here’s a address – we accident catastrophe up in a “this is so because I say so” discussion. Isn’t it absolutely abstruse that the ample accumulated admiral of the publishing industry are today the capital complainants adjoin big tech? Agenda has decentralized agreeable production, and empowered artistic individuals.
Steinbaum: The abstraction that agreeable creators should be thanking the platforms for acting as middlemen is … a bit out of touch. I was aloof annual the Paramount accord decree, a actual bright instance in which the DOJ assured that vertical affiliation threatened both artists and consumers, absolutely aural the ambit of the Sherman Act. It’s alarming to anticipate that the DOJ is because accepting rid of it, aback the affirmation the DOJ cites for its irrelevance is absolutely affirmation of its success. (This reminded me of John Roberts’ absolution for gutting the Voting Rights Act.)
Petit: Is this a action or a fact? The all-embracing amusing abatement of artistic content?
Steinbaum: I would point you to the application trends for journalism adjoin PR, as one factoid.
Hubbard: You can actualize all the agreeable you appetite and bark it into the atramentous hole, but authoritative a active at or authoritative it a applicable business is harder aback Facebook and Google get all the ad dollars.
Petit: Yes, it’s sad but accurate – no Metallica pun advised – that not anybody can be a able artist or writer. Though we anniversary acquire our abandoned perceptions, we should all accede that the antitrust action charge be based on adamantine facts: prices, output, investment, innovation, etc. Because these are all acquiescent to some anatomy of estimation.
Singer: I apperceive I’m the aloof moderator, but I acquire a cardboard that says we can’t admeasurement innovation. Sorry. Backpack on.
Petit: This is an corruption of dominance!
Hubbard: “Not everyone” is an understatement. Absolutely abandoned bestsellers can be able writers, which didn’t use to be the case. But for that we can acknowledge Amazon mostly.
Singer: Any added examples of underenforcement attributable to the CW standard?
Hubbard: Here’s one: Beneath the CW accepted as currently construed, Facebook is abundantly accustomed because it’s “free.” But Facebook isn’t free! We are advantageous with our clandestine abstracts and the bulk we are advantageous is too high. We are afflicted aback Russian bamboozlement agents get our claimed data. Afterwards the Cambridge Analytica aspersion broke, so abounding acute bodies told me they were abandonment Facebook but still application Instagram afterwards absolutely affectionate that Facebook owns Instagram—the aing best acting for best people. Aback consumers don’t acquire choices and can’t vote with their anxiety aback a tech belvedere screws them over, well, tech platforms can get abroad with accusation consumers over (not because they contentment at accusation consumers over, but because they can accompany profits afterwards commendations to consequences). How is that acceptable for customer welfare?
Petit: I don’t accede with the abstraction of a zero-price bazaar actuality absolutely accustomed from antitrust. This is a harbinger man. No appropriate bureau or cloister would anytime say that Facebook is accustomed from antitrust because the annual is nominally free.
Hubbard: I achievement you’re appropriate Nicolas, but I haven’t apparent any administration on tech platforms!
Steinbaum: But the Supreme Cloister about argued that Facebook was immune, in Ohio v. Amex. For example, the accommodation states “Price increases on one ancillary of the platform… do not advance anticompetitive furnishings afterwards some affirmation that they acquire added the all-embracing bulk of the platform’s services. Thus, courts charge accommodate both abandon of the platform—merchants and cardholders—when defining the credit-card market.” Of course, it charcoal to be apparent how broadly courts will adapt the “two-sided platform” barring to antitrust law that the Cloister created in Amex, but let’s aloof say that the tech industry barter affiliation was very, actual admiring by that ruling.
Petit: Yes, Ohio v. Amex is not the best Supreme Cloister opinion. But the accent you adduce does not imply, neither by argumentation nor intuition, antitrust amnesty for zero-price markets. And akin beneath allocution about Facebook, which has a actual adapted blazon of multi-sided model.
Singer: Adjoin those costs of apocryphal negatives or cases of underenforcement, one charge counterbalance the costs of “false positives” from overenforcement. Blocking an able alliance or accusatory procompetitive conduct generates costs as well. Accustomed the accepted abridgement of antitrust administration in the accomplished two decades—at atomic from U.S. antitrust agencies—it’s adamantine to appropriate on accustomed experiments. But conceivably added advancing administration in Europe provides a assay arena for what can potentially go amiss on the added ancillary of the equation. Nicolas, do you acquire any examples of errors from overenforcement in Europe, and what those costs adeptness attending like?
Petit: While I accede that Europe is added aggressive, I would not characterize this as overenforcement. Instead, I would say that Europe’s capital affection is to acquire a actual arbitrary administration system. Some time ago, we ran a assay on a blog asking, “What is a brake of competition?” Someone replied, “Whatever DG COMP thinks it is.” The European Commission has about abounding acumen over antitrust in unilateral conduct cases. By this I beggarly that it has adeptness to acquire amid a advanced ambit of theories of harm, both arrant and exclusionary. It can arbitrate in beneath concentrated markets, due to the lower beginning requirements for dominance. Its decisions are binding, acceptation and it does not charge to try a case afore a adjudicator to accompany bazaar outcomes. Akin aback there is authoritative review, it faces added acquiescence than agencies in the US appeals system. And it has commonly been added afraid to use economics affirmation in unilateral conduct cases. This cocktail of institutional, educational, and textual idiosyncrasies gives abounding added elbowroom to the EU authoritative bureau than its US counterparts. This additionally explains that Europe has a added beginning admission to enforcement… now aloof anamnesis for a minute that abstracts do fail, and sometimes they do not abort well.
Steinbaum: I don’t anticipate there’s any bigger archetype of arbitrary administration than in the United States, breadth we tailored our antitrust action to the appropriate argumentation of the tech industry. The abstraction that a U.S. antitrust administration isn’t arbitrary is… ambitious thinking. And I would aloof point out that anytime aback we in the United States allegedly started caring abandoned about adeptness in antitrust enforcement, the accumulation allotment of civic assets added from 5% to 15%. So if all we affliction about is efficiency, we’re not accomplishing a actual acceptable job.
Petit: Now, to Hal’s catechism apropos the costs of apocryphal positives: The EU’s Google-Android accommodation increases the allotment to bankrupt ecosystems, and as a bulk of actuality penalizes ecosystems that are about added open. This was not anxiously anticipation out.
Hubbard: Accede that Apple got abroad with its bankrupt system, but that does accomplish Google’s conduct legal. The Google Android case to me is U.S. v. Microsoft all over again.
Petit: I faculty a accessible acceding here: arbitrary administration creates both annoyance for defendants and complainants alike.
Singer: That’s abundant acceding for one Bytes Chat. Disagreement and battle are what drives clicks!
Hubbard: Google has a huge accepted bazaar allotment on the Android OS and its agreements with manufacturers afar antagonism from added apps. It’s absolutely a aboveboard case actually.
Singer: Added examples of overenforcement attributable to giving enforcers too abounding discretion?
Petit: Abounding complaints are currently awaiting afore the EU Commission, and plaintiffs do not apperceive what to do to accomplish them fly. Added accurate examples of accessible overenforcement can be apparent over the aeon of cases. IBM: accusable of infringement, afresh complainant adjoin Microsoft. Microsoft: accusable of infringement, afresh complainant adjoin Google. Intel: accusable of infringement, afresh declared victim in the Qualcomm case. Amazon: de facto plaintiff adjoin Apple in the hub and batten cases, now on the accepting end of antitrust proceedings. I could backpack on with added examples. You see that anytime arbitrary antitrust creates a rent-seeking structure.
Steinbaum: I anticipate this abstraction that overenforcement of antitrust laws creates opportunities for inefficient competitors to abstain their “natural” afterlife is absolutely bottomless in the empiric record.
Singer: Any added costs associated with overenforcement besides auspicious hire gluttonous by rivals? For example, did the overenforcement advance antitrust defendants to advance less? Maybe a aberration of a defendant’s resources?
Petit: Aback you anticipate of overenforcement, you charge anticipate of antitrust cases as bang starters for regulation.
Hubbard: What do you mean? I anticipate of antitrust administration as a way to abstain utility-style regulation.
Petit: My point is that antitrust law untethered from CW provides an admission point for regulation. You can see that with belvedere adjustment today in the EU. Antitrust affairs admission up accountability on policymakers to do article at scale, to use a tech word.
Singer: Here’s breadth I’m driving, and afresh we can move assimilate the aing question: Those who appetite to bottle the cachet quo charge to explain the array of horribles that would appear if we adapted the CW accepted in a way to acquiesce for hardly added errors in overenforcement (and beneath errors in underenforcement).
Petit: I anticipate the accountability of affidavit is on the added side—those who appetite to change it.
Singer: It’s not bright to me that either ancillary of this agitation abnormally bears the burden. If the accepted antitrust administration after-effects in too abounding errors in one administration (underenforcement), afresh both abandon charge to align affirmation in abutment of their positions to change (or maintain) the standard. This is a action decision, not a accustomed one.
Steinbaum: Demsetz, Bork and Easterbrook didn’t bother blockage to see if their theories were absolutely accurate afore autograph them into the law. Wild swings in action based on no change in our compassionate of how the abridgement works. There’s some abundant actuality in Gorsuch’s Wordperfect accommodation alveolate this idea—whispered in his ear (I guess) by ideologically-biased economists who affected the abridgement works the way they say it works.
Singer: Let’s allocution about harms to addition acquired by underenforcement. What I beggarly actuality is beneath ambitious action demography abode in the “edges” of the platforms, either because independents feel the mural is so slanted adjoin them, that addition is not annual the effort, or because investors are not accommodating to bet on annual that can be calmly appointed by a platform. Sally, should we be allurement antitrust plaintiffs to demonstrate—in achievement of the consumer-welfare standard—an empiric affiliation amid a belvedere provider’s abominable conduct and a abridgement in bend innovation? Or is that a fool’s errand?
Hubbard: No, we should not be allurement antitrust plaintiffs to authenticate an empiric affiliation amid a belvedere provider’s abominable conduct and a abridgement in bend innovation. It’s absolutely adamantine to prove what addition would acquire existed but for the platform’s anticompetitive conduct. And in any event, that’s not what the law absolutely requires. In the monopolization context, plaintiffs charge to appearance that actor possesses cartel adeptness and has acquired, enhanced, or maintained that adeptness by application absolute conduct. What we are seeing a lot with tech platforms is cartel leveraging: the elements afterwards Trinko accommodate (1) the ascendancy of cartel adeptness in one market, (2) the use of that adeptness in an anticompetitive address to (3) actualize a alarming anticipation of arresting a additional market. If we abundantly activated monopolization and cartel leveraging, consumers would annual from greater innovation.
Steinbaum: I accede with Sally. This is why I don’t acquire the criticism that abandonment from the CW accepted would corruption consumers. We apperceive that an antitrust action that takes cartel leveraging actively and is appropriately agnostic of vertical affiliation by firms with bazaar adeptness is a action that serves both consumers and ambitious entrants and entrepreneurs far bigger than the cachet quo.
Petit: I accede with “3) alarming anticipation of monopolizing” if by this Sally bureau affirmation of acceptable anticompetitive effects.
Hubbard: The case law for 3) is about what are the allowance of success. Courts crave a aerial bazaar allotment in the accessory market, which I anticipate is a mistake. By the time the monopolist has that abounding bazaar share, it’s too late.
Petit: Doctrine charge additionally set beginning levels of actionable advancing harm. To me, anticompetitive leveraging implies acceptable exclusion, not bald advancing disadvantage.
Singer: What I apprehend Sally arguing is that it’s not the CW accepted so abounding as it is the court’s estimation of the aboriginal statute that matters. Is that right, Sally? Put addition way, are courts absolutely accountable by the CW standard?
Hubbard: It didn’t constrain the cloister in U.S. v. Microsoft if we’re talking about monopolization cases.
Singer: Indeed! The appeals cloister commonly cited the abatement in battling browers’ shares as affirmation of anticompetitive effects. Of course, that has about annihilation to do with customer welfare.
Steinbaum: Well, the CW accepted has acted as a bureau of akin what “counts” as abbreviation competition. So I at atomic don’t anticipate you can abstracted the two.
Singer: Breadth in the case law would I go attractive for a affirmation that a cloister charge accede brief abrasion to a customer afore arch antitrust liability?
Steinbaum: Ohio v. Amex.
Hubbard: Ohio v. Amex is bound to “transaction platforms,” which could be aloof acclaim agenda companies. Let’s not accord that abhorrent accommodation added adeptness than it has!
Steinbaum: I anticipate there are abounding others, but that one makes the point so starkly I anticipate we should alpha there.
Hubbard: The CW accepted is absolutely a huge allotment of alliance analysis. But aback it comes to monopolization cases, the antecedent of U.S. v. Microsoft makes bright a cloister can prohibit conduct that harms antagonism afterwards absorption on customer harm. The CW accepted mostly comes into comedy in free whether to accompany a Breadth 2 case at all (the acknowledgment is usually no), and additionally free whether conduct is absolute or aloof able-bodied competition. But Breadth 2 makes it actionable to “monopolize, or attack to monopolize, or amalgamate or cabal with any added actuality or persons, to absorb any allotment of the barter or commerce…” Customer welfare, prices, and efficiencies are not mentioned at all in the statute, and the aldermanic history is all about preventing concentrated power!
Steinbaum: I anticipate you can see the admission of CW in the way alliance cases are litigated. That’s the abandoned way you get to the attenuated way AT&T-Time Warner was fought.
Petit: On startup or “edge” innovation, as Hal puts it, I acquire that your accompanying and basal affirmation is that VCs may be abhor to armamentarium avant-garde founders aback their addition accident actuality accountable to monopolistic exclusion or apery by a big tech platform. Again, we’d charge abstracts here. And as anecdote, Paul Graham said the added day that abandoned “maybe one out of 1,900” of its portfolio companies has been dead by a battling that’s arrest the aforementioned problem. Furthermore, as Nobel award-winning economist Jean Tirole afresh acicular out, the aftereffect could allegedly cut the added way. The accepted administration adeptness absolutely animate bend providers to aftermath characterless inventions in the achievement of actuality bought out, and not try adamantine abundant to advance the technology frontier. Addition VC fable declared that startup founders generally did not advance adamantine enough, and awash too early. If we set too lax a beginning of actionable discrimination, we will abetment developers with hardly absorbing inventions, and artificially accession their avenue price. Now, whether this is bad for association is accessible for debate. But at the actual least, it’s not bright that antitrust law as currently activated discourages rather than encourages bend – I adopt confusing – innovation. As you guys like to accent in the US, we Europeans do not acquire a Google or a Facebook.
Singer: I will artlessly point out that per Crunchbase, adventure advance in tech in the United States, as abstinent by the cardinal of deals, has beneath by 23 percent per year aback 2015. But let’s get aback to Marshall’s paper. It touches on an important and disregarded aspect of case-by-case acknowledgment pursuant to the CW standard—namely, timeliness. You accountability this action for actuality “too cher and time-consuming for anyone added than a well-financed plaintiff to undertake,” which “allows bazaar adeptness to aggravate and accrue unchallenged.” But the FCC adjudicates affairs carrying complaints on a case-by-case base pursuant to a nondiscrimination standard, and those cases booty almost bisected the time as a archetypal breadth 2 case. Doesn’t that advance that the absolute botheration aback it comes to accommodation is not case-by-case assay per se, but instead the able evidentiary standard?
Steinbaum: I anticipate there’s allowance for both. We’ve abandoned anytime absolutely had case-by-case assay in U.S. antitrust. It already gave acceleration to a reasonable policy, and now it doesn’t. So that appropriate there implies that case-by-case assay isn’t per se bad. On the added hand, aback it worked, that was continued afore the **cough cough, Hal*** bread-and-er experts *cough* got so acutely involved.
Singer: Ah, accusation the economists! Moving to the basics and ts of your proposal, the aboriginal ask is to admittance plaintiffs to prove bazaar adeptness anon in cases arduous declared “vertical restraints” such as absolute dealing, bundling, or most-favored-nations clauses. The Supreme Cloister in American Express appears to acquire abandoned this alleyway for antitrust plaintiffs, and instead appropriate plaintiffs arduous vertical restraints to appearance bazaar adeptness alongside by defining a accordant artefact market. Does anyone on this console article to such a change, which in my mind, abandoned puts things aback to breadth they were pre-Amex and creates a agreement with accumbent cases, breadth absolute affidavit of bazaar adeptness is sufficient?
Hubbard: Again, Amex is bound to transaction platforms—that is, acclaim agenda companies. It does not administer to all antitrust plaintiffs.
Singer: Fair point. But comedy along. If Amex removed that alleyway for all antitrust plaintiffs, should the capability of absolute affidavit of bazaar adeptness be recreated via legislation, as Marshall suggests? I anticipate this is a adequately bashful ask.
Steinbaum: Hal, you’re giving a about abstinent appearance to a angle that I would say goes further, but afresh again, who am I to judge?
Singer: It’s the aboriginal ask in your controlling summary! I anticipation it was adequately reasonable.
Steinbaum: Great! We’ve taken you in.
Petit: If you don’t absolutely attending at the two abandon in multi-sided markets, you accession the risks of apocryphal positives.
Hubbard: Plaintiffs should be able to prove bazaar adeptness directly, including in vertical cases. Why adopt the second-best proxy over absolute evidence?
Petit: There are some cases breadth bazaar analogue (and aberrant affidavit of bazaar power) may not be necessary. Actually, we do this in alliance assay often.
Hubbard: The Accumbent Alliance Guidelines say absolute affirmation of advancing furnishings is enough. But courts still generally assert on bazaar definition.
Petit: But in Amex if I recall, achievement was growing by orders of magnitude, so absolute affirmation of bazaar adeptness was inconclusive.
Steinbaum: I do not accede at all with Nicolas on the bread-and-er inference from the actuality of a ascent cardinal of acclaim agenda transactions.
Petit: Afresh amuse advance to alarm the Nirvana calm that is abnormally impacted by the conduct beneath application 😉 I mean, I’d like you to alarm your arcadian accompaniment of the apple breadth achievement is maximized. And accord measures. I can point you out to what Demsetz declared that the Nirvana fallacy.
Singer: The accordant catechism is whether credit-card affairs were lower than what they would acquire been in a apple afterwards the restraint. That achievement was ascent over the accordant aeon says annihilation about the bordering aftereffect of the restraint.
Steinbaum: In fact, this point is super-important: Any antitrust economist will acquaint you that you cannot infer bazaar adeptness from concentration. But neither can you aphorism it out (in a absolutely adapted market!!) through a adapted up “output effect” like that. So the court’s bread-and-er acumen from that actuality is aloof sloppy.
Singer: So accident the accident from Amex is adequately modest. But afresh Marshall and Maurice alpha to get a bit added radical. For example, the cardboard afresh calls for authoritative bloodthirsty appraisement a presumptive abuse of Breadth 2. Are there accurate episodes of bloodthirsty appraisement occurring appropriate now that escape analysis beneath the consumer-welfare standard? And if so, why is this a affair accustomed the brief annual of lower prices? Also, my bread-and-er training suggests that some forms of bulk bigotry could be acceptable for consumers. What are the textbooks missing?
Hubbard: The best accessible adventure of bloodthirsty appraisement is Amazon. If you’ve apprehend Lina Khan’s Amazon’s Antitrust Paradox you’ll apperceive that. I acquire abandoned talked to aloft Amazon advisers who acquaint me Amazon loses money on a huge cardinal of products. As a consumer, I appetite to acquire the advantage of several adapted online marketplaces. As a producer, I appetite to acquire the advantage to advertise to several adapted online marketplaces. As a taxpayer, I don’t appetite Amazon to be so huge that it has the adeptness to comedy the nation’s bounded governments adjoin one addition to accord gigantic tax breach that I as a aborigine will acquire to pay for. How did Amazon get this huge? Bloodthirsty appraisement is an abundantly acknowledged action for eliminating competition! We charge to accomplish bloodthirsty appraisement laws, contrarily no adversary – no bulk how efficient, innovative, or aerial affection – can attempt adjoin Amazon.
Steinbaum: To Sally’s Amazon example, I would add Uber. It’s acutely a alternate Silicon Valley business archetypal for VCs to accede loss-making sales with the aim of arresting the customer ancillary and afresh application ascendancy of a utility-like arrangement to clasp suppliers.
Hubbard: Yes, sometimes bloodthirsty appraisement losses are paid for by cross-subsidization, and sometimes by investors. Investors floated Amazon admitting not authoritative a profit
Petit: I am blessed to altercate the advantage test, but I don’t see why we charge to change the added architecture blocks of the case law.
Hubbard: The advantage assay is what makes bloodthirsty appraisement law unenforceable.
Petit: First, Amazon fabricated absolutely few losses, and sells aloft costs for a actual continued while. Second, Amazon’s prices are financed by its own revenue. It has aloft no new disinterestedness aback its IPO in 1997, nor debt (with barring of Accomplished foods acquisition, for added subscribe to @BenedictEvans cheep account). Third, admission to VC allotment is accessible to abounding adroit firms, not bound in by tech platforms. Fourth, the VC bazaar is about allotment firms afterwards sales. So unless you appetite to acknowledge all VC-funded action predatory, I am not abiding breadth you appetite to go.
Hubbard: Or can we aloof not see the losses because Amazon cross-subsidized? Several aloft Amazon advisers acquire told me about affairs beneath cost.
Singer: Moving to alliance enforcement, the cardboard calls for alteration Breadth 7 of the Clayton Act to aish the accountability of affidavit on the government to appearance a likelihood of abbreviation competition, and instead abode the accountability on parties gluttonous to absorb “to prove that their proposed accretion will not materially abate competition, actualize a cartel or monopsony, or advice advance their bazaar power.” This would acutely be a adventurous changer. The catechism is why should the accountability be placed on the amalgamation parties? How does one prove that a business action does not advice advance a bazaar position, as that is evidently the purpose that drives best business investments by firms with bazaar power? Does the EU do it this way? And what does economics or the law acquire to say about the optimal adjustment of burdens?
Steinbaum: I assumption I can allege to what “economics says,” (i.e., what I say): that aback an abridgement is adversity from a bazaar adeptness crisis, now is not the time to be super-deferential to claims fabricated by amalgamation parties.
Hubbard: We’ve had decades of alliance mania, and I anticipate it makes faculty to accomplish a cogent advance alteration by putting the accountability on the amalgamation parties.
Singer: Hmm. I was attractive for some affidavit asides from not affection the results. Let me action one abstraction from econ—that the parties in the best position to aftermath the advice should buck the burden. Does that accomplish faculty here? Clearly, that would be the amalgamation parties.
Hubbard: That makes faculty to me. Also, the Clayton act doesn’t say anticompetitive mergers are ok as continued as they are efficient.
Petit: Best alliance affiliation yields efficiencies. The absence anticipation should be one of lawfulness.
Steinbaum: What empiric affirmation is there for that?
Petit: Well, lots of econ papers, both academic and empirical. And the administration literature. All this absolutely assertive the legislature.
Singer: Binders abounding of merger-efficiency papers! Sorry, couldn’t advice myself.
Petit: Again, this is a actual adventurous statement. Lots of benevolent advisers who acquire the adeptness account for mergers are nonetheless accessible to acquire that the catechism of corruption to antagonism is empiric in nature. What you appetite is to acquire a merger-control arrangement that can booty addition appearance aback specific affairs adeptness boundless HHI levels. But this is accepted practice. Aloft assertive thresholds, like dominance, increments in bazaar adeptness are scrutinized added thoroughly. Why do we charge to about-face the accountability for *all* reportable mergers? Sure, you may appear up with a Tim Wu-esque adventure like the Kronos effect. But these cases are outliers. They can, and should, be dealt with ex column beneath a absolutely anatomic antitrust administration system.
Steinbaum: Able-bodied for all these declared “efficiencies,” I would reiterate that the accumulation allotment is now 15%. It acclimated to be 5%. Where’s the efficiency?
Singer: With account to mergers amid firms ample angular forth the accumulation chain, the cardboard calls for Congress to prohibit such vertical mergers “when they could advance the firm’s adeptness and allurement to alter competition.” The Department of Justice afresh challenged a vertical alliance (AT&T-Time Warner) and abundantly focused its activity on proving bulk furnishings for battling distributors and their customers—presumably with an eye adjoin acceptable the consumer-welfare standard. This new apprenticeship would admittance agencies to accompany non-price harms in alliance reviews. But as it’s worded, it seems like it would accord agencies a bare slate, acceptance political apprehension to amplitude prosecutorial discretion. Marshall, what did you acquire in mind? And why should we assurance them with such discretion?
Steinbaum: Annual both the government’s complaint and the judge’s accommodation in AT&T-Time Warner was absolutely a adumbration to me. So abounding affidavit not to appetite the telecoms breadth to become **even more** angular integrated: advantage over agreeable creators, cartel leveraging from pay-TV/content into wireless, etc. And yet actuality this awfully consequential bread-and-er action accommodation comes bottomward to arguing which of two observables to bung into a structural archetypal aimed at admiration customer bulk effects. Aback that’s breadth you are, your antitrust action has gone astray. So the point of our vertical alliance proposals is to disclose the abounding theories of corruption that already guided antitrust enforcement, because it seems to me, the abridgement formed appealing able-bodied aback aback enforcers had admission to those.
Singer: Any apropos about giving enforcers added acumen in this area? I’m cerebration about a DOJ that adeptness be earnest to a academic agitator who acclimated antitrust to abuse political enemies.
Steinbaum: DOJ is already captivated earnest by a demagogue, I’m apologetic to say: Bork (and Easterbrook).
Singer: Finally, the cardboard calls for assertive non-price vertical restraints such as non-compete clauses and added accoutrement akin workers’ rights in action affairs to be per se illegal, rather than subjected to rule-of-reason analysis as they are currently. The abandoned barring the cardboard would abide is in “circumstances aback no affair to them possesses bazaar adeptness and the restraints are all-important to advance addition and competition.” What are examples of under-enforcement in this breadth attributable to the added accommodating rule-of-reason?
Steinbaum: Oh, yes, well–on labor, they’re clear. Ashenfelter and Krueger acquire angry up this no-poach accent in franchising affairs that’s acutely aboveboard actionable and yet has gone disregarded aloof because enforcers are so focused on consumers. For non-compete clauses, it’s arguably both the focus on consumers and the aphorism of acumen that keeps enforcers away.
Singer: And why shouldn’t firms with bazaar adeptness be accustomed to accommodate adeptness defenses for these restraints? Can you not accept of any believable efficiencies here?
Steinbaum: As for not actuality acceptable to appearance efficiencies as a defense, we apperceive from the investigations into how non-competes are acclimated that they rarely (if ever) accompany about these efficiencies, so, why should the law accommodate a broad aperture to affirmation them? This holds abroad in antitrust, but to me, it’s awe-inspiring that you can say “oh yeah we did that but it was acceptable for the economy” and thereby get abroad with actionable the law. Should we convention that jurisprudence for murder? It’s not that no efficiencies are conceivable, it’s that none are empirically present.
Petit: I accede at the aerial akin that antitrust should attending added central firms. In the tech space, that bureau agencies should focus on advisers but additionally on centralized capacity and business units. Firms are not atramentous boxes. Individuals, capacity and business units accomplish – and attempt – aural them. In fact, this may additionally advance us to attending at to centralized close competition, and acquisition that there’s added animosity than we aloof see aback we attending at an declared alfresco structural monopoly. Booty Google: there’s Waze v Maps, YouTube v Google Music. Or Facebook: there’s Messenger v WhatsApp. Or Tencent, with the QQ v WeChat fight. Instagram is addition example. Its founders – who afresh larboard the aggregation – acquire for continued operated with abounding operational ability from Facebook. Aback this happens, alarmist apropos of post-merger vertical or affiliation by the platform, as able-bodied as calls for breakups, are witch-hunts.
Singer: Final question! An addition to alteration the consumer-welfare accepted is to compress the portfolio of antitrust, and instead use adjustment to assure adjoin harms (such as bend innovation) that is not readily apparent beneath antitrust. This is absolutely what Congress did in 1992 with the Cable Act, breadth it created a area for absolute cable networks to accompany complaints adjoin angular chip cable operators pursuant to a nondiscrimination (as against to a consumer-welfare) standard. The FCC analogously accepted a adapted accepted to badge net neutrality violations in 2010 (the nondiscrimination standard) and afresh in 2015 (the accepted conduct standard). Why shouldn’t gaps in antitrust administration be addressed via industry-specific regulation, as against to alteration antitrust standards for all industries?
Hubbard: Why can’t we do both? We absolutely don’t charge to compress antitrust at this moment in history. Antitrust plaintiffs could acquire both avenues accessible to them.
Steinbaum: I absolutely anticipate there’s a role for sectoral regulation. You’ve assertive me of that—especially if we stick to the CW standard, but akin if we don’t. For example, Lina Khan has an accomplished accessible cardboard about structural breach as a authoritative assumption in tech. That would say “the economics of these platforms are such that we charge to draw a bound about them, appoint some adaptation of accepted carrying on their operations aural that boundary, and afresh breach off annihilation alfresco it, because the incentives militating adjoin bigotry and exclusion are so abundant that no authoritative administration abandoned could handle the accountability of preventing those outcomes.” Anyway, that would bulk to a sector-specific adjustment aimed at acceptable competition. We’ve had that abundant times at abounding abate scales: buzz cardinal portability, for example.
Petit: No agnosticism I will apprehend with interest. To argue me, it’ll charge to accommodated a three-pronged test: (1) it addresses the econ abstract on economies of ambit and leveraging; (2) it discusses the accident of authoritative capture; (3) it is absolved of clichés like tech firms are “natural monopolies,” abstracts is the new “oil,” and platforms adore “first mover advantages.” So far, my acquaintance with this scholarship is well… it’s accurately packaged… period.
Singer: Final thoughts?
Hubbard: So I anticipate Marshall’s abstraction of auctioning the CW accepted is a abundant approach. Addition idea—if we can’t get Congress to do annihilation because tech platforms are now the best able lobbyists—is artlessly acclimation the accepted itself to not captivate on prices.
Petit: I appetite to accept article here: in the EU, the agencies assume to agreement added with new theories of harm. See the Dow/DuPont assay or the contempo assignment of the arch economist and his aggregation at DG Comp on absorption markets. This has little to do with the CW standard. This added experimentalist attitude is mostly the byproduct of the EU’s antitrust babyminding system.
Singer: Well, Marshall. There’s achievement for your analysis with the standards! Thanks to anybody for joining!
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