Dan, Come Over to the Rule of Reason

Cite this Article
Steve Salop, Dan, Come Over to the Rule of Reason, Truth on the Market (June 14, 2013), https://truthonthemarket.com/2013/06/14/dan-come-over-to-the-rule-of-reason/

Steve’s next, perhaps final, installment, responding to Dan’s latest post on the appropriate liability rule for loyalty discounts. Other posts in the series: SteveDanSteveDan, and Thom.

My invitation comes with several hopefully final observations.

(1) Dan says, “There’s neither input foreclose nor output foreclosure if a rival can neutralize a loyalty discount without pricing unprofitably.”  My examples showed several reasons why an equally efficient rival may not be able to overcome a loyalty discount to get distribution, even if the monopolist does not violate the price-cost test.  Dan’s response to my #3(a) example is that “a discount structure that would require the entrant to pay rebates of $71 even while earning revenues of $70, then the rebate system would fail the price-cost screen.” That is not a good answer for three reasons.  First, the monopolist’s profits pre-entry absent the rebate are $200, and Dan uses the pre-entry situation as the base.  Second, the $71 payment would fail a test of comparing the rival’s price and cost, but that it is not the test.  The test compares the monopolist’s price and cost.   Third, if Dan now wants to use as the base the “but-for world” where the former-monopolist would earn only $70 because he would have lowered price in response to the entrant absent the loyalty discount, then he is accepting the “penalty price” scenario, which he elsewhere rejected as unlikely.  So, Dan has to make up his mind on this last point.  And the price-cost test is defective either way.

(2) Dan says, “Steve posits ‘that economic analysis is the same’ for loyalty discounts and contractual commitments not to buy from rivals.  Really?”  The short answer is “Yes.”  As Dan observes himself, “at a high level of generality one would say that in both cases the question is whether the price or contract forecloses competitors.”  By the way, a small rebate certainly will not always exclude.  But, see #3(b) in my previous post, which is a pretty general example of why the rival often would just give up rather than get involved in a bidding war for distribution.  Dan never explain what he thinks is wrong with this example.

(3) Dan says, “Steve presents four examples of how an auction for contractual exclusivity results in a single firm obtaining contractual exclusivity with anticompetitive effects due to asymmetry of incentives, all of which begs the question of how loyalty discounts without contractual exclusivity achieve the same effect.”  I assumed no contract.  Nor is a formal auction required.  The monopolist simply can unilaterally offer a high enough bid that the entrant walks away.  And in the #3(b) example, the unilateral bid does not even need to be very high.

(4) Dan says, “The monopolist is not saved from profit sacrifice, as Steve posits, merely by threatening a price of $105 that it never has to charge.”  Why not?  The monopolist never sells any units at $105 when the threat succeeds.  And, given Dan’s model, it will succeed against an equally efficient competitor.  With adequate information, it is neither expensive nor risky.  If Dan is going to rely on it being “expensive and risky,” then he is changing his story.  More importantly, he also is opining it should be permissible for a well-informed monopolist to exclude with penalty pricing threats because poorly informed monopolists may not follow the same strategy.  That does not make sense.   He also does not provide any evidence about how well informed most monopolists who engage in loyalty discounts typically are.

(5) Dan says, “Finally, let me underline as I did in my last post that I’m not claiming that “penalty pricing” is economically impossible.  Rather, …we should therefore not assume that it will be routinely deployed, and that the starting presumption should be that most loyalty discounts are true reductions from the but-for price.”  I do not have to assume penalties will be “routinely deployed.”   It was only one of my several fatal problems with the price-cost test.  But, in terms of the evidence, what is the evidence that the typical loyalty discount by a monopolist or firm with substantial market power are true reductions from the but-for price.  Reliable presumptions need to be more than simply reflections of one’s ideology.

(6) I want to conclude by observing that modern day courts do not need the defective price-cost test to protect monopolists.  Remember that the rival must prove consumer injury.  That is a high burden to carry and some of the factors Dan mentions might throw light on that bottom line issue.  Neither Josh nor I are claiming that loyalty discounts should be per se illegal.  So, Dan, come on over to the rule of reason.