Guest post by Steve Salop responding to Dan’s latest post on the appropriate liability rule for loyalty discounts. Other posts in the series: Steve, Dan, and Thom.
(1) Dan says that price-cost test should apply to “customer foreclosure” allegations. One of my key points was that many loyalty discount claims involve “input foreclosure” or “raising rivals’ costs” effects, not plain-vanilla customer foreclosure. In addition, loyalty agreements with distributors often involve input foreclosure because “distribution services” are an input and a rebate might be characterized as a reward payment for the (near-) exclusivity. From his silence on the issue, I am inclined to presume that Dan would agree that the price-cost test should not be applied to such allegations. Dan, what do you intend?
(2) Dan says that he agrees that the price-cost test should not be required for “partial exclusivity contracts” that involve contractual commitments to limit purchases from rivals. He says that the price-cost test should apply only where the “claimed exclusionary mechanism is the price term.” This distinction is peculiar because the economic analysis is the same in both situations. In addition, even such voluntary exclusivity flowing from a price term can be anticompetitive, and even if the price-cost test is passed. There are numerous reasons for this, as I explained in my original post. (I also discuss these issues in my contribution to Robert Pitofsky’s volume, “How the Chicago School Overshot the Mark.” See also articles by Eric Rasmussen et. al., Michael Whinston and others.)
(3) Consider the following numerical examples that concretely illustrate the economic forces at work when there is competition for distribution, even in the absence of contractual commitments.
(a) Suppose that a monopolist is earning profits of $200. If there is successful entry by an equally efficient entrant, each of the two firms will earn duopoly profits of $70. (The duopoly profits are less than monopoly profits because of the price competition.) Suppose that the entrant needs to obtain just non-exclusive distribution from a particular retailer in order to be viable. In this case, the entrant would be willing to bid up to $70 per period for the non-exclusive distribution. (In price terms, this would be a payment that led to the entrant’s costs equaling its price.) But the monopolist would be willing to bid up to $130 for an exclusive (i.e., the difference between its monopoly and duopoly profits), in order to prevent the entrant from surviving. Thus, the monopolist would win the bidding, say for a price of $71. The monopolist would easily pass the price-cost test. Why is the monopolist systematically able to outbid the entrant? This fundamental asymmetry does not arise because the entrant is less efficient. Instead, the answer is that the monopolist is bidding to maintain its monopoly power, whereas the entrant can only obtain duopoly price. The monopolist is “purchasing market power” in addition to distribution, whereas the entrant is only purchasing distribution.
(b) Or, consider this interesting variant with sequential bidding for multiple distributors. Suppose there are two retailers and the entrant needs to get non-exclusive distribution at both in order to be viable. Suppose that the negotiations at the two stores are sequential. In this scenario, the entrant would have no incentive even to try to outbid the monopolist. This is easy to see. Suppose that the entrant wins the competition to get into the first store by paying the amount $B1. In bidding for distribution at the second retailer, the monopolist would be willing to bid up to $130, as above. At this second store, the entrant would not be willing to pay more than $70 (or $70 – $B1, if it is ignores the fact that the $B1 was an already sunk cost). So the monopolist will win the exclusive at the second retailer and the entry will fail. Looking back to the negotiations at the first store, the entrant would have had no incentive to throw away money by paying any positive amount $B1 to get distribution at the first store. This is because it rationally would anticipate that it is inevitable that it will fail to gain distribution at the second retailer. Thus, the monopolist will be able to gain the exclusive at both stores for next to nothing. It clearly will pass the price-cost test even as it maintains its monopoly, merely by instituting the competition for distribution.
(c) If the entrant only needs to gain non-exclusive distribution at either one of the two stores, then the situation can be reversed and the entry can succeed. The monopolist clearly would not be willing to pay $71 each at both stores (equal to a total payment of $142) in order to deter the entry and protect its “incremental” monopoly profits (equal to only $130 in the example). Therefore, when the entrant bids for distribution at the first store, the monopolist might as well let the entrant win, which means that the entrant can gain access to both stores for next to nothing. The entry succeeds, but again, the price-cost test would not be relevant to the analysis.
(d) There also can be elements of a “self-fulfilling equilibrium” because of lack of coordination by the distributors. Suppose that there are 10 retailers and the entrant only needs to get distribution at 5 of them. Suppose that the entrant offers to pay a $14 rebate for non-exclusive distribution, and it also will offer $14 again in the next period, if its entry succeeds in the first period. Suppose the monopolist offers a lower rebate for an exclusive that will continue into the second period. Suppose that each of the 10 retailers anticipates that the other retailers will accept the monopolist’s lower offer out of fear that the entrant will be unable to get 4 other retailers to accept its offer. In that situation, the entry will fail. This is not because the entrant is less efficient. Instead, it is because the entrant faces a classic coordination problem. If the retailers behave independently, the retailers’ fear of the entrant’s failure can be a self-fulfilling prophecy. Again, the monopolist will easily pass the price-cost test.
(4) Dan makes the point that the price-cost test does not require adoption of an EEC antitrust standard (i.e., whereby only harm to EECs is relevant to antitrust). I certainly agree that the price-cost screen does not necessarily rely on the EEC standard. The price-cost test is better framed as a measure of “profit-sacrifice,” and EEC is simply a misleading way to express the test. For example, I expect that Dan agrees that predatory pricing law uses the price-cost test as a measure of “profit-sacrifice,” not an assumption that only EECs matter.
(5) But, I was surprised that Dan also says that the EEC theory “has merit.” In my view, the EEC standard has no merit in rigorous antitrust analysis. The example in my previous post illustrates why that is the case. Raising the costs and possibly deterring the entry of a less efficient rival harms consumers and reduces output.
(6) Dan says that the “disloyalty penalty” price theory has problems, “including the empirical one that it doesn’t fit the pattern of almost any of the recent loyalty discount cases.” The validity of Dan’s empirical claim is not obvious clear to me. To evaluate whether there is a price penalty, you would need to know more than the path of prices over time. You also would need to know what the price would be in the “but-for world.” For example, suppose that in the absence of the loyalty discount, the incumbent would have reduced its price to $90. This observation has two important implications. First, this is a reason why it is not clear that loyalty discounts are “presumptively beneficial.” Second, this is another reason why a price-cost test is not a good “screen” in loyalty discount cases. Implementing the screen involves evaluating what prices would be absent the conduct. But, after the competitive effects on consumers are known, what is the value of the screen?
(7) As to the question of whether Josh’s speech on loyalty discounts (and this issue of penalty prices) is inconsistent with their joint article on bundled discounts, I will leave that one for Josh and Dan to sort out, at least for the moment. I certainly will concede the point that Wright is not always right.
(8) Dan began to suggest that the penalty price theory has a “problem of basic economics” in that the penalty price was not short-run profit-maximizing. Dan subsequently seemed to withdraw this criticism, noticing that one could characterize the loyalty restriction as not profit-maximizing in the same way. In any event, it is not a “problem” with the theory. The reason why the firm is willing to sacrifice profits is because it gains the benefit of deterring entry. By the way, it also may not even end up sacrificing profits. The threat of the penalty price for non-exclusivity may be sufficient. If the distributors succumb to the threat and buy exclusively from the incumbent, it never needs to actually charge them the penalty price.
