TOTM readers know that I’ve long been skeptical of claims that expansive use of Section 5 of the FTC Act will prove productive for consumers. I’ve been critical of recent applications of Section 5 such as Intel and N-Data. Now comes yet another FTC consent decree in PoolCorp. I’m still skeptical. Indeed, PoolCorp appears to provide ammunition for those (like me) who have criticized the Commission’s stance on expansive use of Section 5 precisely upon the grounds that it can and will be applied to conduct that is either competitively neutral or even procompetitive.
Commissioner Rosch’s dissent makes many of the key points. Indeed his opening line gets straight to the point: “This case presents the novel situation of a company willing to enter into a consent decree notwithstanding a lack of evidence indicating that a violation has occurred.”
Before getting to specifics, the sharp disagreement between the majority and Commissioner Rosch on both the most basic of facts and economic principles is hard to miss, and gives the entire exchange a rather peculiar feel. Here’s an example. The majority describes the case as a standard application of a “Raising Rivals’ Costs” theory, citing Krattenmaker & Salop. The allegation is that:
Specifically, the Complaint alleges that PoolCorp, which possesses monopoly power in many local distribution markets, threatened its suppliers (i.e., pool product manufacturers) that it would no longer distribute a manufacturer’s products on a nationwide basis if that manufacturer sold its products to a new distributor that was attempting to enter a local market.
The conditions that must be satisfied for an exclusionary theory are well known. Substantial foreclosure of a critical input is one such necessary, but not sufficient, condition for the possibility of competitive harm. The majority argues that PoolCorp “foreclosed new entrants from obtaining pool products from manufacturers representing more than 70 percent of sales.” But standard antitrust analysis tells us that such foreclosure is not enough to support an inference of harm to competition. First, we must ask whether the threatened refusals to deal actually had any impact on the allegedly impaired rivals or whether they were able to easily realign supply contracts? Second, and most fundamentally, we must ask whether the conduct at issue had any impact on competition itself, or upon consumers in the form of higher prices, reduced output, lower quality, etc.?
Here is where things get, well, weird.
Did PoolCorp’s actions actually disadvantage any rivals? The majority concedes that “Some of PoolCorp’s targets were able to survive by purchasing pool products from other distributors rather than directly from the
manufacturers.” Well, that doesn’t sound too bad for the Commission. If a few firms survived but others were excluded (surely the implication of the sentence), we should continue our analysis. But was there actually any foreclosure?
Here’s Commissioner Rosch in dissent:
“The investigation revealed that PoolCorp’s demands were not honored by manufacturers.”
What about those potential entrants that were excluded — the ones that were not so lucky as the surviving targets the majority mentions?
“Another problem with this case is that no entrants were actually excluded.”
Yikes. One gets the impression that the Commissioners are not talking about the same case. The majority is full of broad generalizations and assertions but no real discussion of facts. Commissioner Rosch’s dissent offers a bit more on the exclusion claim:
“The only claim to the contrary is in Paragraph 28 of the complaint, which alleges that in Baton Rouge, “the new entrant’s business ultimately failed in 2005” because of the lack of “direct access to the manufacturers’ pool products.” The complaint neglects to mention that this entrant was able to secure supplies from other sources and later sold itself to an established out-of-state distributor. Since then, that distributor, which has had full access to supplies, has been a highly effective rival to PoolCorp. Thus, to the extent PoolCorp’s threats had an effect in Baton Rouge, they may have led to more, not less, competition.”
Not good for the Commission majority. But injury to rivals isn’t our primary concern. What about injury to competition? Here, things get even murkier. The majority plainly asserts “the harm to consumers that occurred as a result was substantial” and “consumers had fewer choices and were forced to pay higher prices for pool products.” Sounds relatively straightforward. Once again, Commissioner Rosch’s dissent exposes disagreement over the most basic of antitrust-relevant facts (emphasis added):
“A third problem with this case is that there was no consumer injury. The investigation did not uncover price increases, service degradation, or other anticompetitive effects in any local markets.”
Rosch goes on:
The basis for the majority statement’s claim that there was “substantial” consumer harm resulting from the alleged conduct of Respondent is a mystery. The complaint contains no factual allegations of any harm to consumers, much less “substantial” harm. Likewise, there are no factual allegations in the complaint corroborating the majority’s claim that consumers “had fewer choices and were forced to pay higher prices for pool products.”
This is a real mess. Proponents of an expanded application of Section 5 (including Commissioner Rosch) frequently argue that it is capable of being applied with certain limiting principles, including demonstration of consumer injury. To his credit, Commissioner Rosch is sticking to his guns on consumer injury as a limiting principle here. But the evidence that the Section 5 is too enticing a tool for the Commission in cases lacking consumer injury is mounting. The public disagreement over basic facts — is there harm to consumers or not? was there foreclosure or not? if so, how much? — also does not inspire confidence that the Commission’s discretion in applying Section 5 in cases where the conduct lies outside the scope of the Sherman Act for technical reasons will be applied in a manner consistent with the consumer welfare goals of antitrust.
Those are general problems with Section 5. As applied here, the majority opinion is also analytically incoherent. The Commission majority must deal with the fact that there appears to be no real foreclosure as a result of PoolCorp’s conduct — recall that what the majority described as a few successful surviving firms turns out to be no actual exclusion whatsoever. Despite the fact that absence of foreclosure or injury to rivals in a case like this is typically the end of the line for the plaintiff, the Commission doesn’t appear to be bothered at all by the lack of evidence of harm to rivals or consumers. Responding to the fact of no foreclosure, the Commission writes:
“However, we assess consumer harm relative to market conditions that would have existed but for the respondent’s allegedly unlawful conduct. Here, PoolCorp’s strategy significantly increased a new entrant’s costs of obtaining pool products. Conduct by a monopolist that raises rivals’ costs can harm competition by creating an artificial price floor or deterring investments in quality, service and innovation.”
This doesn’t make any sense. If there is no foreclosure, there is no risk of consumer harm. Period. Indeed, while the majority asserts it, there appears to be no actual evidence of consumer harm. At a minimum, its up for serious debate. If it were true that PoolCorp’s strategy “increased a few entrant’s cost of obtaining pool products” in practice, and that there were sufficient exclusion to create additional market power, two things would be true: (1) one would observe harm to the rival, and (2) there would be harm to competition in the form of higher prices or reduced output. Apparently, the Commission could must neither — even when challenged by Commissioner Rosch’s dissent to do so.
One last observation. Commissioner Rosch’s dissent hints that economic analysis in the case demonstrated that “even if” PoolCorp fully foreclosed its rivals the harm to consumers would be minimal and a waste of Commission resources. Query: what role are agency economists playing in the Commission’s Section5 agenda? Unfortunately, it does not appear to be a significant one.
