antitrust and competition

Nicolas Petit and Lazar Radic refute common critiques of the consumer welfare standard. A second article will discuss the advantages and disadvantages of different antitrust standards, underscoring some points often ignored by the critics of the consumer welfare standard.

In new research, Manuel Wörsdörfer compares the philosophies of two formative antitrust thinkers writing in the late 19th and early 20th centuries in the United States and Europe: Louis D. Brandeis and Walter Eucken. A discussion of their body of thought highlights the antitrust concerns of the time and how their positions can be adapted to today’s regulatory environment, particularly regarding Big Tech.

The draft Merger Guidelines seek to reduce mergers and acquisitions, especially those that remove potential entrants. However, precluding acquisitions in those settings ignores both what incentivizes startups and investors to take initial risks, as well as the advantages that large incumbents have to parlay acquisitions into further innovation and an array of widely commercialized consumer products. The overall effect may dampen innovation, write Ginger Zhe Jin, Mario Leccese, and Liad Wagman.

Big Tech’s efforts to push Federal Trade Commission Chair Lina Khan and Assistant Attorney General Jonathan Kanter to recuse themselves from participating in lawsuits against the companies due to prior work have no legal basis and are naked efforts to weaken agency enforcement, writes Laurence Tribe.

Joshua Gray and Cristian Santesteban show how the Federal Trade Commission could have used its 2023 draft Merger Guidelines to focus its challenges against Microsoft-Activision and Meta-Within squarely on the pressing economic concern of protecting competition during critical technological transitions making full use of the law’s traditional incipiency standard.

Google is on trial for anticompetitive behaviors designed to protect its monopoly in internet search. Herb Hovenkamp analyzes several possible remedies the presiding court and Department of Justice could pursue and suggests which ones may succeed in reinforcing competition to protect consumer interests.

In new research, Enghin Atalay, Alan Sorensen, Christopher Sullivan, and Wanjia Zhu find that mergers and acquisitions often lead to the merged firm offering less product variety than when the two firms operated pre-merger.

Vertical merger law lacks the structural presumption of horizontal merger law, which shifts the burden from the government to the merging parties to provide evidence that a merger will not produce anticompetitive effects when it is known that the merger will substantially increase market concentration. To improve Guideline 6 of the draft Merger Guidelines concerning vertical foreclosure, Steven Salop develops a three-factor criteria with which the government antitrust agencies can show an analogous structural “inference” that shifts the burden of evidence to the merging parties.

Xerox invented modern copier technology and was so successful that its brand name became a verb. In 1972, U.S. antitrust authorities charged Xerox with monopolization and eventually ordered the licensing of all its copier-related patents. As new research by Robin Mamrak shows, this antitrust intervention promoted subsequent innovation in the copier industry, but only among Japanese competitors. Nevertheless, their innovations benefited U.S. consumers.

The draft Merger Guidelines largely replace the consumer welfare standard of the Chicago School with the lessening of competition principle found in the 1914 Clayton Act. This shift would enable the Federal Trade Commission and Department of Justice Antitrust Division to utilize the full extent of modern economics to respond to rising concentration and its harmful effects, writes John Kwoka.