Suggested Redline Edits to the DOJ’s Letter to Judiciary Committee Leadership
The Biden administration finally has taken a public position on parallel House (H.R. 3816) and Senate (S. 2992) bills that would impose new welfare-reducing regulatory constraints on the ability of large digital platforms to engage in innovative business practices that benefit consumers and the economy. The administration’s articulation of its position—set forth in a March ... Suggested Redline Edits to the DOJ’s Letter to Judiciary Committee Leadership
Toward a Dynamic Consumer Welfare Standard for Contemporary U.S. Antitrust Enforcement
For decades, consumer-welfare enhancement appeared to be a key enforcement goal of competition policy (antitrust, in the U.S. usage) in most jurisdictions: The U.S. Supreme Court famously proclaimed American antitrust law to be a “consumer welfare prescription” in Reiter v. Sonotone Corp. (1979). A study by the current adviser to the European Competition Commission’s chief ... Toward a Dynamic Consumer Welfare Standard for Contemporary U.S. Antitrust Enforcement
Antitrust Policy and National Security Interests
U.S. antitrust policy seeks to promote vigorous marketplace competition in order to enhance consumer welfare. For more than four decades, mainstream antitrust enforcers have taken their cue from the U.S. Supreme Court’s statement in Reiter v. Sonotone (1979) that antitrust is “a consumer welfare prescription.” Recent suggestions (see here and here) by new Biden administration ... Antitrust Policy and National Security Interests
The Internationalization of Due Process, Federal Antitrust Enforcement, and the Rule of Law
The acceptance and implementation of due-process standards confer a variety of welfare benefits on society. As Christopher Yoo, Thomas Fetzer, Shan Jiang, and Yong Huang explain, strong procedural due-process protections promote: (1) compliance with basic norms of impartiality; (2) greater accuracy of decisions; (3) stronger economic growth; (4) increased respect for government; (5) better compliance ... The Internationalization of Due Process, Federal Antitrust Enforcement, and the Rule of Law
FTC-DOJ RFI on Merger Guidelines: The Agencies Should Proceed with Caution
The Jan. 18 Request for Information on Merger Enforcement (RFI)—issued jointly by the Federal Trade Commission (FTC) and the U.S. Justice Department (DOJ)—sets forth 91 sets of questions (subsumed under 15 headings) that provide ample opportunity for public comment on a large range of topics. Before chasing down individual analytic rabbit holes related to specific ... FTC-DOJ RFI on Merger Guidelines: The Agencies Should Proceed with Caution
Crusade Against ‘Big Meat’ Is Latest Example of Misguided Effort to Use Antitrust as Anti-Inflation Tool
As a new year dawns, the Biden administration remains fixated on illogical, counterproductive “big is bad” nostrums. Noted economist and former Clinton Treasury Secretary Larry Summers correctly stressed recently that using antitrust to fight inflation represents “science denial,” tweeting that: There is no basis in economics for expecting increases in demand to systematically larger price ... Crusade Against ‘Big Meat’ Is Latest Example of Misguided Effort to Use Antitrust as Anti-Inflation Tool
FTC Statement of Regulatory Priorities: Storm Clouds Are Looming
The Federal Trade Commission (FTC) appears committed—at least, for the moment—to a path of regulatory overreach. The commission’s Dec. 10 Statement of Regulatory Priorities (SRP) offers, in addition to a periodic review of existing rules and the status of proposed rules in the pipeline, a sneak preview of new “unfair methods of competition” (UMC) and ... FTC Statement of Regulatory Priorities: Storm Clouds Are Looming
FTC Challenge to Nvidia-Arm Vertical Merger: Potential Efficiency Justifications
The Federal Trade Commission (FTC) on Dec. 2 filed an administrative complaint to block the vertical merger between Nvidia Corp., a graphics chip supplier, and Arm Ltd., a computing-processor designer. The press release accompanying the complaint stresses the allegation that “the combined firm would have the means and incentive to stifle innovative next-generation technologies, including ... FTC Challenge to Nvidia-Arm Vertical Merger: Potential Efficiency Justifications
Oldie-but-Baddie: The Revival of an Antitrust ‘Efficiencies Offense’?
Recent antitrust forays on both sides of the Atlantic have unfortunate echoes of the oldie-but-baddie “efficiencies offense” that once plagued American and European merger analysis (and, more broadly, reflected a “big is bad” theory of antitrust). After a very short overview of the history of merger efficiencies analysis under American and European competition law, we ... Oldie-but-Baddie: The Revival of an Antitrust ‘Efficiencies Offense’?
What is the Appropriate Role for State Antitrust Enforcement?
In the U.S. system of dual federal and state sovereigns, a normative analysis reveals principles that could guide state antitrust-enforcement priorities, to promote complementarity in federal and state antitrust policy, and thereby advance consumer welfare. Discussion Positive analysis reveals that state antitrust enforcement is a firmly entrenched feature of American antitrust policy. The U.S. Supreme ... What is the Appropriate Role for State Antitrust Enforcement?
Consumer Welfare-Based Antitrust Enforcement is the Superior Means to Deal with Large Digital-Platform Competition Issues
There has been a rapid proliferation of proposals in recent years to closely regulate competition among large digital platforms. The European Union’s Digital Markets Act (DMA, which will become effective in 2023) imposes a variety of data-use, interoperability, and non-self-preferencing obligations on digital “gatekeeper” firms. A host of other regulatory schemes are being considered in ... Consumer Welfare-Based Antitrust Enforcement is the Superior Means to Deal with Large Digital-Platform Competition Issues
FTC Moves Closer Toward Ex Ante Merger Regulation
The Federal Trade Commission (FTC) has taken another step away from case-specific evaluation of proposed mergers and toward an ex ante regulatory approach in its Oct. 25 “Statement of the Commission on Use of Prior Approval Provisions in Merger Orders.” Though not unexpected, this unfortunate initiative once again manifests the current FTC leadership’s disdain for ... FTC Moves Closer Toward Ex Ante Merger Regulation
