Debates about the consumer welfare standard have failed to produce a consensus around either its scope or an alternative standard. Regardless of the outcome of that debate, case law has already established an effective way to use “competitive process” to identify market restraints that can result in significant competitive harms. The utility of “competitive process claims” in strengthening antitrust enforcement should not be obscured by that wider debate.
The Stigler Center’s 2023 Antitrust and Competition conference seeks to answer the question: what lays beyond the consumer welfare standard? In advance of the discussions, ProMarket is publishing a series of papers on the infamous consumer welfare standard. This piece is part of that debate.
The language of antitrust is entangled in a debate about the scope and goals of antitrust laws. The “consumer welfare” standard has become a lightning rod for that debate. One criticism is that it is too narrow, at least as it has been interpreted. Whereas some critics advocate use of “competition and the competitive process” as a standard that will permit antitrust to address a wider range of conduct and harms, others urge that the consumer welfare standard be replaced entirely by a “competitive process” standard. In response, some commentators have proposed retooling “consumer welfare” to be more effective. Another view is that the consumer welfare standard has been hijacked and that in the context of antitrust law it might be productively abandoned in favor of alternatives. Others still have voiced concern that adding “competitive process” to “competition” could result in either far too sweeping a standard or perhaps even constrain antitrust when wielded by non-interventionist judges.
“Competitive process” need not be viewed as a complement, supplement, or alternative to consumer welfare, however that term is defined and implemented. This essay argues that we ought not allow the debate about terms and standards to obscure a well-established line of authority that could be used to build out the law of “competitive process claims.” “Competitive process claim” is a useful descriptor of a discernible type of market restraint that can lead to significant competitive harm and might be more readily condemned.
To illustrate, I focus on one form of competitive process claim that is especially well-developed in the case law: restraints on the free flow of marketplace information. It has long been recognized that imperfect information can reduce competition. The process that undergirds competition relies on information, and markets are susceptible to distortion and malfunction when it is encumbered or misrepresented.
When these claims have succeeded, it has not been simply because the challenged restraints interfered with the competitive process, but because they did so in a market context, and in a way that made harm to competition highly likely. In other words, impairment of the competitive process was the anticompetitive mechanism of competitive harm, perhaps analogous in some instances to raising rival’s costs claims. Often, these decisions have relied on reasonable inferences, assessments of probability, and presumptions—neither market definition nor evidence of actual effects was typically demanded, although there have been some exceptions that will be explained. And the restraints have arisen under both Section 1 and Section 2 of the Sherman Act because they facilitated collusion, resulted in exclusion, or some combination of both. They are not limited to “horizontal” conduct.
When framed as “competitive process claims,” these information restraint cases can help to advance the accessibility and administrability of at least some types of antitrust claims. They reinforce that antitrust law should remain focused on competitive effect. But that focus need not equate with either protracted analysis of effects or a narrow conception of consumer welfare. These information-related restraints warrant condemnation because of the high probability that they distort market outcomes, and they have not been limited to restraints on price or effects on end-use consumers.
The information-focused claims discussed herein likely do not exhaust the possible range of valid competitive process claims. Rather, my hope is that in bringing them into greater focus they will invite further consideration of conduct with similar anticompetitive tendencies that might also warrant reliance on stronger presumptions of competitive harm. Moreover, I have intentionally excluded consideration of unilateral refusals to share information and information sharing by rivals that may either facilitate or constitute price fixing because under the current state of the law these practices pose distinct challenges.
Information Restraint Claims: History and Foundation Cases
In National Society of Professional Engineers v. United States (Professional Engineers), the Supreme Court held that the Society’s use of its canon of ethics to ban its members from tendering competitive bids for their engineering services was a clear violation of the Sherman Act. The Court reasoned that “no elaborate industry analysis” was “required to demonstrate the anticompetitive character” of the ban. Quoting from the district court’s opinion in the case, the Court agreed that the ban “‘impedes the ordinary give and take of the market place’ and substantially deprives customers of ‘the ability to utilize and compare prices in selecting engineering services.’” The Court did not demand that the government define a relevant market. Neither did it require evidence of actual anticompetitive effects. Access to information about price, the Court concluded, is a precondition of a properly functioning competitive process.
Harm to the competitive process alone, however, was not the basis for the Court’s holding. Digging back into the common law roots of the Sherman Act, and drawing on the two pillars of its early history—Standard Oil and Chicago Board of Trade—Justice John Paul Stevens’s opinion for the Court in Professional Engineers reaffirmed multiple times that however the Sherman Act is implemented, “the purpose of the analysis is to form a judgment about the competitive significance of the restraint.” The decision was not a departure from tradition or precedent but rather a reassertion of them. Neither was the decision an embrace of some form of literal “consumer-only” welfare standard that focuses solely on end-user consumers. The most immediately affected “customers” were, as Stevens noted, purchasers of “engineering services.” Furthermore, the Court reasoned, “[t]he assumption that competition is the best method of allocating resources in a free market recognizes that all elements of a bargain—quality, service, safety, and durability—and not just the immediate cost, are favorably affected by the free opportunity to select among alternative offers.” Information is what makes such choices “informed.”
Justice Louis Brandeis’ decision in Chicago Board of Trade was an apt source of guidance in the case. In Brandeis’ now classic formulation of the rule of reason, Justice Stevens saw an answer to the question whether a complete ban on competitive bidding was unreasonably anticompetitive, asking whether it “merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition.” The “call rule” at issue in Chicago Board of Trade was the former; the ban on competitive bidding was the latter. And, as was the case with Professional Engineers, the potential immediate victims of the call rule were not final consumers. When Brandeis observed that the call rule “had no appreciable effect on general market prices; nor did it materially affect the total volume of grain coming to Chicago,” he was not focused on the prices that consumers might pay for end-products made with the commodities traded on the Board, but with the prices paid by its trading members.
Professional Engineers is not alone in the case law in recognizing the potential harm to competition that can flow from restraints on competitively significant information. Markets depend on the availability of accurate information of the kind that informs decision-making by sellers and buyers. Markets can fail to serve their primary functions when such competitively valuable facts are unavailable, omitted, falsely stated—as with fraud and deception—or restricted by conduct that impedes, bars, or otherwise raises the cost of access to needed information. Information issues thus lie at the intersection of antitrust and consumer protection—both have long-been concerned with economics—and ethics, with its concern for fraud and deception and their market-distorting tendencies. Mandatory disclosures and labeling, of course, are related regulatory responses that can be used to fill information gaps.
Like Professional Engineers, FTC v. Indiana Federation of Dentists also concerned the competitive significance of an agreement to limit the flow of information, in that case x-rays that were sought by insurers to verify claims for dental services. The Court observed that “the dentists’ customers (that is, the patients and their insurers)” preferred that dentists cooperate with the insurers to allow for “pre-treatment review of claims through the forwarding of x rays.” Agreeing with the FTC’s theory of competitive harm, the Court concluded that the “Federation’s collective activities resulted in the denial of the information the customers requested in the form that they requested it, and forced them to choose between acquiring that information in a more costly manner or forgoing it altogether.” The Court continued, noting that to “this extent, at least, competition among dentists with respect to cooperation with the requests of insurers was restrained.”
As was true in Professional Engineers, condemnation of the conduct followed not from the mere restriction on information, but from the highly probable consequence that the restriction of information would have anticompetitive effects. Thus, as was also the case in Professional Engineers, the Court did not require evidence of price effects or diminished quality of services. It was enough that harm was the likely result of the Federation’s restraint of information that was a necessary input to the insurers’ pricing decisions, but which was also likely to impact quality of services.
Cases like Professional Engineers and Indiana Federation of Dentists illustrate how information restraints can be understood as “competitive process claims.” Such claims were well-suited for resolution through reliance on reasonable inferences and presumptions that allow for abbreviated analysis. It is no accident, therefore, that, together with Board of Regents, they are often identified as the foundation cases for the Supreme Court’s embrace of Phillip Areeda’s insight that sometimes the rule of reason can be applied “in the twinkling of an eye.” Although the Court itself has at various times referred to Professional Engineers as a per se or quick look application of the rule of reason, however the decision is characterized, together with Indiana Federation of Dentists, it illustrates how information-impeding competitive process claims can be resolved short of comprehensive rule of reason analysis.
Other illustrations of information-impeding claims have arisen across a range of industries and in different settings. In all these cases, condemnation of the conduct followed not from the mere restriction on information, but from the highly probable consequence that the restriction could have anticompetitive effects by facilitating collusion, excluding rivals, or both. Cases involving exclusionary information restraints have involved coordinated as well as unilateral conduct targeted at disruptive rivals who were challenging well-entrenched incumbents. And the affected information has not been limited to price. Another common thread that runs through these cases is that competitive harm was inferred from the high probability that, regardless of the extent of actual effects, the conduct would distort market outcomes, including especially the diversion of business.
Information Restraints: Further Examples
In both Polygram Holding Inc. v. FTC and Realcomp II, Ltd. v. FTC, the Federal Trade Commission was successful in challenging information-related restraints. In Polygram, which is often cited as another important building block of quick look analysis, the FTC argued that an agreement between two joint venture partners to suspend promotion and advertising of their previously released recordings of the “Three Tenors” concerts during the introduction of their jointly produced new recording was presumptively anticompetitive.
Synthesizing the prior case law, including Professional Engineers and Indiana Federation of Dentists, the DC Court of Appeals held in Polygram that conduct can be viewed as presumptively unlawful if “based on economic learning and the experience of the market it is obvious that a restraint of trade likely impairs competition.” Although that presumption remains rebuttable, the court’s key insight was that probability of harm—reasonable likelihood—can be enough to support a presumption of violation.
The court had “no difficulty” concluding that the agreement warranted such a presumption. Quoting from Indiana Federation of Dentists, it reasoned that “agreements restraining autonomy in pricing and advertising impede the ‘ordinary give and take of the market place.’” Also quoting Bates v. State Bar of Arizona, the court added that “advertising ‘serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system.’” Significantly, the court did not limit its reasoning to price information but referenced all information that might enable marketplace choices.
Realcomp II is especially instructive. The case concerned information-impeding policies adopted by a local board of realtors in response to new competition from “limited service” real estate brokers, who marketed their services directly to home sellers at discounted commission rates. As described by the Sixth Circuit Court of Appeals, “the traditional brokerage model faces competitive pressure arising from the technological developments that enable consumers to self-supply certain services and from limited-service brokers who discount their fees in response to these developments.” Realcomp’s response was to prohibit information about such non-traditional listings from being distributed to public real estate advertising websites through its multi-list and to exclude them entirely from its default search settings. As the court noted, the FTC argued that “Realcomp’s policies …‘hinder the competitive process.’”
The court declined to decide whether the case warranted quick look condemnation, as the FTC had requested, because the record was comprehensive. It included evidence of market power and supported the FTC’s conclusion that Realcomp’s information-impeding policies were unreasonable restraints of trade, whether viewed from the perspective of potential or actual anticompetitive effects. The “anticompetitive nature” of the restraints, however, was critical.
As to potential effects, the court explained that Realcomp’s website policy “limited access to internet marketing and imposed additional costs on the marketing of discount listings,” which exert downward pricing pressure on full service listings. Quoting from United States v. Microsoft, which is discussed below, the court held that “[s]ubstantial evidence shows … that ‘the exclusion of nascent threats’ such as discount brokerage services and consumer access to online listings ‘is reasonably capable of contributing significantly’ to anticompetitive effects.” Those anticompetitive effects were not limited to price. They included quality, innovation, and even the emergence of an entirely new business model that challenged the entrenched incumbent system of residential real estate brokers. Most importantly, the restraints disabled the market. It was not necessary for the FTC to further prove the “but for” world and show that consumers would have chosen the new services in large numbers or that they would have been better off in some sense. It was enough that the conduct prevented the market from deciding that for itself.
Although Professional Engineers, Indiana Federation of Dentists, Polygram, and Realcomp II all involved horizontal agreements, the theories they embrace have also been applied to unilateral conduct and might be usefully deployed in such cases.
United States v. Microsoft is one illustration of how information-related competitive process claims have arisen in unilateral exclusionary conduct cases. In Microsoft, the government established that deception can be an exclusionary act: instead of impeding the flow of accurate information, Microsoft used disinformation to protect its platform monopoly.
That monopoly was built, in part, around Windows-only software and was threatened by the expansion of cross-platform software programs developed using Sun Microsystem’s Java programming language and related tools. Microsoft produced its own set of Java program development tools for Independent Software Vendors (ISVs) but misrepresented to them that, like Sun’s version, it would produce cross-platform programming: “Microsoft intended to deceive Java developers, and predicted that the effect of its actions would be to generate Windows-dependent Java applications that their developers believed would be cross-platform; …. Microsoft’s ultimate objective was to thwart Java’s threat to Microsoft’s monopoly in the market for operating systems.” Actual effects evidence was not required. Some commentators have argued that there are additional situations in which other types of deception by a monopolist should also be subject to condemnation.
Another example of unilateral information-impairing exclusionary conduct is being litigated in Epic’s still pending case against Apple. Until Apple revised its AppStore Guidelines in 2021, it prohibited app developers from informing customers of alternative payment methods. In its brief on appeal to the Ninth Circuit, Epic notes that the district court “found that Apple prevents developers from informing consumers of Apple’s commission and the availability of making purchases on other platforms, and that consumers do not know this information.”
Although the appeal remains pending, the conduct can usefully be understood as a competitive process claim that is highly likely to impede competition. And its potential effects are not limited to price. It shares a common characteristic with the competitive process claims previously discussed: the “competitive process” has been disabled. Although Apple’s customers might still prefer to use its payment systems, depriving them of the knowledge that other options might be available eliminates the possibility that their conduct might influence the future course of competition. Like the restraints in Realcomp II, that might include not just price effects, but loss of quality competition and less innovation in payment systems. That is the crux of a competitive process claim. As the Supreme Court observed of the NCAA’s television plan in Board of Regents, conduct that renders a market “unresponsive” to consumer demand is highly likely to be anticompetitive.
The critical and common component of all the decided cases is deprivation, distortion, or impairment of access to competitively valuable information. The information itself varied, but the value of it to the competitive process was evident. Moreover, in none of these cases did the court conclude that impairment alone was enough to make out a violation, but, in many, neither did it demand proof of actual competitive harm (it was shown in Realcomp II). Instead, the court inferred from the nature of the information affected and the role it played in facilitating competition that adverse competitive effects were highly probable. In Realcomp II and Microsoft, the inference of such effects was also supported by evidence of market power and an intent to divert business from rivals. As the Supreme Court has acknowledged since at least Chicago Board of Trade, and as the Microsoft court reiterated, although “intent” is not a distinct element of a claim of unreasonable restraint of trade or monopolization, evidence of intent can be probative of probable effects and it has been in these cases.
Ohio v. American Express: A Missed Opportunity
In Ohio v. American Express Co. (Amex), the United States and a group of states challenged American Express’ “anti-steering” restrictions, which prohibited merchants who accepted the American Express card from informing consumers who presented them with an American Express card of its true cost and of less costly credit card alternatives. Nevertheless, the Court concluded that the government’s claims failed, because it had not shown competitive harm across what the Court viewed as the relevant two-sided transaction platform market.
Amex could have been more effectively analyzed by the Supreme Court as an information-impeding competitive process claim. By design, anti-steering operated like a “gag order” that withheld information from consumers that might lead them to choose other, less costly purchasing options. The market distorting effects of such a limitation were not limited to price. As the district court found, and the United States argued to the Court, they impaired new entry, especially by innovative alternative payment systems. The claims in Amex, therefore, should have been more readily assessed under the information decisions like Professional Engineers and Indiana Federation of Dentists. Instead, the Court distinguished those cases on the highly formalistic ground that they involved horizontal, not vertical, conduct. But the conduct had the same business-diverting tendencies as the conduct in Realcomp II and Microsoft. It also tended to raise and maintain merchant fees. Whether, as American Express asserted, its higher merchant fees were “worth it” was a market decision that it co-opted from its merchants and cardholders.
Framing Competitive Process Claims
Information-related restraints provide an instructive illustration of how “competitive process” can serve as a useful descriptor for antitrust analysis. It is a way of focusing thinking about how competition can be harmed when conduct is targeted at information likely to be relevant and valuable to the marketplace decision-making of sellers or purchasers. Price-related information, of course, would be included, but so would information necessary to evaluate any other dimension of competition, such as service quality in Indiana Federation of Dentists and the business model innovation offered by non-traditional real estate brokers in Realcomp II. Restraints on truthful advertising also warrant scrutiny, as was observed in Bates and Polygram.
In such cases, the probability of harm to competition can be high when valuable information is barred, impeded, or misrepresented. Typically, there has also been an absence of cognizable justification or a weakly supported one. The prospect of a false positive, therefore, is relatively low. Quantifying such harms, however, may be difficult. As such, requiring a plaintiff, public or private, to prove “actual” harm, including price effects, may lead to false negatives and unnecessarily high costs of implementation. None of the cases cited here demanded such evidence, although it was noted and supported the court’s conclusion in Realcomp II.
The lively debate about antitrust’s goals risks losing the distinct enforcement value and potential for “competitive process” as an identifier of a particular type of antitrust claim. These and similar claims can be pursued without having to persuade enforcers or courts of any new standard or set of goals, although some claim variations may be more difficult to establish than others. “Competitive process” should instead be excised from the debate about “consumer welfare” to preserve its utility as a descriptor of an identifiable mechanism of competitive harm.
Information-related restraints illustrate well the term’s utility and have a long history in antitrust law. That history also illustrates how the evidentiary demands of antitrust decision-making can be modulated when the probability of competitive harm is high. As I have argued with respect to the current state of monopolization law with Steve Salop, increased reliance on reasonable inferences and probability assessments to support presumptions of harm can be productively used to recalibrate and fortify antitrust law, not just in cases of collusion, but in unilateral conduct cases.
The author acknowledges and expresses his appreciation to Professors Steven C. Salop and Jonathan B. Baker for helpful comments on earlier drafts.
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.