But here’s a better example. The very next line complains that: “If a dominant firm made an exclusive deal with a distributor to lock out a competitor, it would be illegal only if the competitor were denied access to least 30 percent of the market.”

Again, there they go requiring proof. The op-ed tries to paint the DOJ here as “favoring” businesses with large shares over consumers rather than advocating rules that make sense for consumers. What they leave out of this quick little hit on the DOJ’s approach to exclusive dealing contracts (the DOJ who brought Dentsply, you may recall) is that the substantial foreclosure of distribution large enough to deprive rivals of access to minimum efficient scale is a NECESSARY condition of consumer harm. In fact, DOJ’s 30% threshold is lower than some circuits have required to survive summary judgment. So this is no extreme tilting of the scales in favor of monopolists. It is repeating a simple and basic economic proposition that is accepted both by economists (foreclosure is necessary condition of raising rivals’ cost theory of competitive harm with exclusive dealing contracts) AND the law (substantial foreclosure required).

Again, requiring proof of a condition that must be satisfied in order for exclusive dealing contracts to harm consumers rather than generate efficiencies is not favoring monopolists or tilting scales. Its adopting rules that favor consumers that will bear the significant burdens of both false positives and false negatives.

Instead of honestly grappling with these issues, the Times plays fast and loose with its description of the content in the Report. Its a newspaper, so I’m less disappointed in the Times reaction than a few of the things the FTC Statement said about the Report because the latter knows better.