A number of people on both sides of the ideological spectrum were surprised by FTC Commissioner Josh Wright’s recent speech advocating that the FTC reject the use of price-cost tests to assess the legality of loyalty discounts and instead pursue an exclusive dealing framework of analysis. As the author of a brief (unsuccessfully) urging the Supreme Court to grant certiorari and reverse in Z.F. Meritor v. Eaton, I want respectfully to disagree with some of what Josh had to say. But, first, two other observations.
First, I’m delighted that Josh is charting a course as Commissioner that defies some people’s expectations (even if they sometimes happen to be my own!). Josh has long insisted on evidence-based analysis rather than simplistic theorizing or reductionist legal rules and his position on loyalty discounts is consistent with that theme. Early in his term on the Commission, Josh is making it clear that he will exercise independent judgment, intellectual integrity, and a principled, non-ideological approach to decision-making. That’s a nice rejoinder to those who believe that antitrust law reduces to simplistic right-left politics. So kudos to Josh!
Second, Josh and I probably agree on 90% of what’s important about loyalty discounts. We agree that loyalty discounts are usually competitively benign or procompetitive, but that they can sometimes be anticompetitive when they exclude rivals and create market power. We also agree that exclusive dealing principles and analysis can be usefully deployed in loyalty discount cases (although I would only do so after a plaintiff satisfied a price-cost screen). Finally, we also agree that unmodified predatory pricing rules—requiring the plaintiff to show that the defendant’s sales were below average variable cost—could potentially insulate some exclusionary loyalty discounts from antitrust scrutiny.
Where we differ is on the question of whether antitrust law should ever condemn a loyalty discount that the allegedly excluded rival could have met without pricing below cost. To say that it should not is to say that there should be some sort of price-cost screen in place in loyalty discount cases. Josh rejects the use of such screens.
One point of clarification: Josh asserts that one of the central claims in favor of the price-cost test is its ease of administration. Contrary to Josh’s suggestion, that is not an argument we made in our Meritor amicus brief. As someone who has counseled clients and litigated these issues, I can attest that the discount attribution test (the variant of the price-cost test I support for loyalty discounts) is anything but easy to apply (which Josh himself recognizes with respect to the “contestable share” idea). The virtue of the test is not its ease of administration, but that it requires plaintiffs to show that the discount scheme actually foreclosed them from competing. Our point was about analytical discipline, not ease of administration.
This, I think, is the crucial difference between Josh and me. Unless a rival would have to price below cost to match a loyalty discount, it is not foreclosed from competing for the business covered by the discount. Josh wants to apply exclusive dealing analysis that looks at foreclosure without answering a question that, in my view, is necessary to discover whether there is any foreclosure at all—whether the rival could profitably match the discount. A rival that has a profitable “predatory counterstrategy,” to quote Frank Easterbrook, isn’t foreclosed.
A thought experiment may be helpful. Suppose that a firm with a 90% market share offered all of its customers a 0.0001% rebate if they purchased at least 80% of their requirements from the dominant firm. No one could imagine that such a “loyalty discount” could exclude rivals, since even small rivals could easily make up the rebates foregone if customers forewent buying the 80% from the dominant firm. We can make the rebate 0.001% with the same result. And we can continue to pose successive iterations of the same question, increasing the discount incrementally, until we hit a point that someone could reasonably say “well now that could be exclusionary.” Wherever we cross that Rubicon, we cross it because what was true at 0.0001%—that the small rival could laugh it off by shelling out a few dollars in a counter-discount—is no longer true. To play this game is to conduct a competitive response sensitivity analysis of the very kind demanded by the attribution test. For present purposes, it’s unimportant where we draw the line; it’s the fact of the line-drawing that matters. To paraphrase Winston Churchill, we’ve already established what we are, now we’re just haggling over the price.
Josh is surely right that loyalty discounts can raise rivals’ costs. That could happen in one of two ways. First, if a small firm were prevented from reaching efficient scale, or second if a firm were forced to ramp up to an inefficiently large scale in order to meet a competitor’s loyalty discounts. But neither of those scenarios holds if the rival is able to compete against the loyalty discounts without pricing below cost. The small firm will not be prevented from reaching minimum efficient scale if it can increase its share by profitably competing against the loyalty discount. And the second firm will not be rushed into increasing its scale if it can compete profitably at a smaller scale. In either case, the RRC mechanism is forcing the firms to price below their costs.
At the end of the day, I suspect that Josh—using whatever analytical tools he associates with exclusive dealing analysis—would be highly unlikely to condemn any loyalty discount in a case where the rival could profitably match the discounts. That gives me assurances as to Josh, but not as to all other players in the legal system, many of whom are eager to jettison the discipline of price-cost screens so that they can get onto the “real meat” of the case—like inflammatory internal e-mails employing metaphors of coercion that Judge Posner has aptly labeled “compelling evidence of predatory intent to the naïve.” So I remain highly confident that we’re in good hands with Josh, but worry about what others may do with his words.