Antitrust and Competition

DOJ and FTC Chief Economists Explain the Changes to the 2023 Merger Guidelines

The Department of Justice Antitrust Division and Federal Trade Commission released their completed version of the new 2023 Merger Guidelines. Susan Athey, Chief Economist for the DOJ Antitrust Division, and Aviv Nevo, Director of the FTC’s Bureau of Economics, explain how the revised document addresses the comments they received on the Draft Merger Guidelines that were expressed in ProMarket and elsewhere.

Antitrust Regulation of Big Tech Needs a Better Understanding of Behavioral Economics

Recent antitrust interventions have put forward behaviorally informed theories of harm. However, they have adopted a deterministic model of behavior, missing the nuances that allow behavioral economics to provide a richer picture of people’s conduct. The recently concluded Google trial, grounded on the stickiness of defaults, is a good example. A more careful application of behavioral economics would have shown how Google’s purchase of default search engine status was a part of a broader monopolization plan. It would also show why the dominant remedy, forced choice, would have negligible effects.

How the Illumina/Grail Opinion Updates Case Law on Vertical Mergers and “Litigating the Fix”

Steven C. Salop analyzes the Fifth Circuit Court’s opinion accepting the Federal Trade Commission’s suit to block Illumina’s acquisition of Grail. The ruling sheds light on how courts may approach vertical merger analysis and “litigating the fix” in the future, and what this may mean for the Merger Guidelines’ approach to vertical mergers.

The New and Improved 2023 Merger Guidelines

The final version of the Agencies’ Merger Guidelines are a thoughtful improvement over the draft version, writes Fiona Scott Morton. Both the economic and legal analysis in the final version promise to more effectively prevent harmful mergers and bring U.S. antitrust into the modern age.

The Necessity of a Consumer Welfare Standard in Antitrust Analysis

As a goal of antitrust, the consumer welfare standard has borne unfair attacks, which we refuted in a previous article. In this second article, we explain how the consumer welfare standard, understood as a method rather than as a set of goals, enables antitrust authorities and courts to navigate the inherent ambiguities of the competitive process and facilitate procompetitive outcomes.

Furthering Ecosystem Analysis in Antitrust

Large digital platforms have evolved into vast multimarket/multiproduct conglomerates, both organically and through a decade-long acquisition spree. Conduct and mergers can no longer be evaluated “market-by-market.” Yet the antitrust assessment of these “ecosystems” is still in its infancy, and regulators seeking to explore harm arising from the control of multiple assets and capabilities are falling back on traditional theories of harm that are more likely to resonate with judges. Substantive progress is unlikely to emerge spontaneously from consultants or academia, and regulators will need to harness interest in this space by motivating and coordinating relevant policy research, argues Cristina Caffarra.

What’s Next for Copyright in the Age of Artificial Intelligence?

In new research, Christian Peukert and Margaritha Windisch review how copyright laws and practices have evolved to adapt to new technologies and discuss the various issues scholars and policymakers must address as copyright law is once again forced to adapt to the emergence of artificial intelligence.

The Kroger-Albertsons Merger Threatens Smaller Upstream Suppliers

Much of the conversation of the proposed Kroger-Albertsons merger has focused on the risks to consumers. However, the merger also poses serious implications for the grocers’ upstream suppliers, particularly smaller regional firms.

Merger Law Reaches Acquirer Incentives and Private Equity Strategies

Steven C. Salop argues that Section 7 of the Clayton Act prohibits mergers in which the acquiring firm’s unilateral incentives and business strategy are likely to lessen market competition.

Tim Wu Responds to Letter by Former Agency Chief Economists

Former special assistant to the president for technology and competition policy Tim Wu responds to the November 27 letter signed by former chief economists at the Federal Trade Commission and Justice Department Antitrust Division calling for a separation of the legal and economic analysis in the draft Merger Guidelines.

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