As I noted in my prior post, two weeks ago the 13th Annual Conference of the International Competition Network (ICN) released two new sets of recommended best practices. Having focused on competition assessment in my prior blog entry, I now turn to the ICN’s predatory pricing recommendations.
Aggressive price cutting is the essence of competitive behavior, and the application of antitrust enforcement to price cuts that are mislabeled as “predatory” threatens to chill such competition on the merits and deny consumers the benefits of lower prices.
Fortunately, the U.S. Supreme Court’s 1993 Brooke Group decision appropriately limited antitrust predatory pricing liability to cases where the defendant (1) priced below “an appropriate measure” of its costs and (2) had a “reasonable prospect of recouping” its investment in below cost pricing. Brooke Group enhanced United States welfare by largely eliminating the risk of unwarranted predatory pricing suits, to the benefit of consumers and producers. In particular, because courts generally have applied stringent cost measures (such as average variable cost, not the higher average total cost), findings of below cost pricing have been rare. Consistent with decision theory, there is good reason to believe that whatever increase in antitrust “false negatives” (failure to challenge truly harmful behavior) it engendered has been greatly outweighed by the reduction in false positives (unwarranted challenges to procompetitive behavior).
The European Union’s test for antitrust predatory pricing is, by contrast, easier to satisfy. Prices below average variable cost are presumed illegal, prices between average variable cost and average total cost are abusive if part of a plan to eliminate competitors (such prices would not be deemed predatory in the United States), and likelihood of recoupment need not be shown (enforcers presume that parties would not engage in below cost pricing if they did not think it would ultimately be profitable). Europeans generally have been far more willing to carry out detailed case-specific predatory pricing evaluations, believing that they have the ability to get difficult analyses right. Given the widespread adoption of the European approach to competition in much of the world, and the benefit for prosecutors of not having to prove recoupment, the European take on predatory pricing has seemed to be in the ascendancy.
Given this background, the ICN’s newly minted Recommended Practices on Predatory Pricing Analysis Pursuant to Unilateral Conduct Laws (RPPP) are a welcome breath of fresh air. The RPPP are strongly grounded in economics, and they place great stress on the need to obtain solid evidence (rather than rely on mere theory) that predation is occurring in a particular case. The following RPPP features are particularly helpful:
- They stress up front the importance of focusing on the benefits of vigorous price competition to consumers;
- They explain that a predatory strategy is rational only when a firm expects to acquire, maintain, or strengthen market power through its actions, which means that the predator expects not only to recoup its losses sustained during the predatory period, but also to enhance profits by holding its prices above what they otherwise would have been;
- They urge that agencies use a sound economically-based theory of harm tied to a relevant market, and determine early on (before running difficult price-cost tests) whether the alleged predator’s prices are likely to cause competitive harm;
- They advocate basing price-cost tests on the costs of the dominant firm, with concern centering on harm to equally efficient (not less efficient) competitors;
- They provide an economically sophisticated summary of differences among potential measures of cost;
- They recognize that to harm competition, low prices must deprive rivals of significant actual or potential sales in at least one market;
- They stress that low barriers to entry and re-entry in the market render predation unlikely because recoupment is infeasible;
- They call for examination of evidence relating to the rationale of a pricing strategy to distinguish between low pricing that harms competition and low pricing that reflects healthy competition;
- They urge that agencies examine objective business justifications and defenses for low prices (such as promotional pricing and achieving scale economies); and
- They support administrable and clearly communicated enforcement standards (an implicit nod to decision theory), the adoption of safe harbors that can be easily complied with, and agency cooperation early on with the alleged predator to understand the records it keeps and to facilitate price-cost comparisons.
Although the RPPP do not adopt the simple rules embodied in Brooke Group (which in my view would have been the optimal outcome), they reflect throughout a concern for economically rational evidence-based enforcement. Such enforcement is based on a full appreciation of the welfare benefits of vigorous price competition, the possible procompetitive business justifications for price cutting, and the need for clear enforcement standards and safe harbors.
Overall, the RPPP demonstrate that the ICN remains capable of building consensus support for concise, economically-based antitrust enforcement principles, that take into account practical business justifications for certain practices. As business deals increasingly take on a global dimension, the convergence of predatory pricing norms around a model suggested by the RPPP would be a most welcome, welfare-enhancing development.