Archives For truth on the market

Excess is unflattering, no less when claiming that every evolution in legal doctrine is a slippery slope leading to damnation. In Friday’s New York Times, Lina Khan trots down this alarmist path while considering the implications for the pending Supreme Court case of Ohio v. American Express. One of the core issues in the case is the proper mode of antitrust analysis for credit card networks as two-sided markets. The Second Circuit Court of Appeals agreed with arguments, such as those that we have made, that it is important to consider the costs and benefits to both sides of a two-sided market when conducting an antitrust analysis. The Second Circuit’s opinion is under review in the American Express case.

Khan regards the Second Circuit approach of conducting a complete analysis of these markets as a mistake.

On her reading, the idea that an antitrust analysis of credit card networks should reflect their two-sided-ness would create “de facto antitrust immunity” for all platforms:

If affirmed, the Second Circuit decision would create de facto antitrust immunity for the most powerful companies in the economy. Since internet technologies have enabled the growth of platform companies that serve multiple groups of users, firms like Alphabet, Amazon, Apple, Facebook, and Uber are set to be prime beneficiaries of the Second Circuit’s warped analysis. Amazon, for example, could claim status as a two-sided platform because it connects buyers and sellers of goods; Google because it facilitates a market between advertisers and search users… Indeed, the reason that the tech giants are lining up behind the Second Circuit’s approach is that — if ratified — it would make it vastly more difficult to use antitrust laws against them.

This paragraph is breathtaking. First, its basic premise is wrong. Requiring a complete analysis of the complicated economic effects of conduct undertaken in two sided markets before imposing antitrust liability would not create “de facto antitrust immunity.” It would require that litigants present, and courts evaluate, credible evidence sufficient to establish a claim upon which an enforcement action can be taken — just like in any other judicial proceeding in any area of law. Novel market structures may require novel analytical models and novel evidence, but that is no different with two-sided markets than with any other complicated issue before a court.

Second, the paragraph’s prescribed response would be, in fact, de facto antitrust liability for any firm competing in a two-sided market — that is, as Kahn notes, almost every major tech firm.

A two-sided platform competes with other platforms by facilitating interactions between the two sides of the market. This often requires a careful balancing of the market: in most of these markets too many or too few participants on one side of the market reduces participation on the other side. So these markets play the role of matchmaker, charging one side of the market a premium in order to cross-subsidize a desirable level of participation on the other. This will be discussed more below, but the takeaway for now is that most of these platforms operate by charging one side of the market (or some participants on one side of the market) an above-cost price in order to charge the other side of the market a below-cost price. A platform’s strategy on either side of the market makes no sense without the other, and it does not adopt practices on one side without carefully calibrating them with the other. If one does not consider both sides of these markets, therefore, the simplistic approach that Kahn demands will systematically fail to capture both the intent and the effect of business practices in these markets. More importantly, such an approach could be used to find antitrust violations throughout these industries — no matter the state of competition, market share, or actual consumer effects.

What are two-sided markets?

Khan notes that there is some element of two-sidedness in many (if not most) markets:

Indeed, almost all markets can be understood as having two sides. Firms ranging from airlines to meatpackers could reasonably argue that they meet the definition of “two-sided,” thereby securing less stringent review.

This is true, as far as it goes, as any sale of goods likely involves the selling party acting as some form of intermediary between chains of production and consumption. But such a definition is unworkably broad from the point of view of economic or antitrust analysis. If two-sided markets exist as distinct from traditional markets there must be salient features that define those specialized markets.

Economists have been intensively studying two-sided markets (see, e.g., here, here, and here) for the past two decades (and had recognized many of their basic characteristics even before then). As Khan notes, multi-sided platforms have indeed existed for a long time in the economy. Newspapers, for example, provide a targeted outlet for advertisers and incentives for subscribers to view advertisements; shopping malls aggregate retailers in one physical location to lower search costs for customers, while also increasing the retailers’ sales volume. Relevant here, credit card networks are two-sided platforms, facilitating credit-based transactions between merchants and consumers.

One critical feature of multi-sided platforms is the interdependent demand of platform participants. Thus, these markets require a simultaneous critical mass of users on each side in order to ensure the viability of the platform. For instance, a credit card is unlikely to be attractive to consumers if few merchants accept it; and few merchants will accept a credit card that isn’t used by a sufficiently large group of consumers. To achieve critical mass, a multi-sided platform uses both pricing and design choices, and, without critical mass on all sides, the positive feedback effects that enable the platform’s unique matching abilities might not be achieved.

This highlights the key distinction between traditional markets and multi-sided markets. Most markets have two sides (e.g., buyers and sellers), but that alone doesn’t make them meaningfully multi-sided. In a multi-sided market a key function of the platform is to facilitate the relationship between the sides of the market in order to create and maintain an efficient relationship between them. The platform isn’t merely a reseller of a manufacturer’s goods, for instance, but is actively encouraging or discouraging participation by users on both sides of the platform in order to maximize the value of the platform itself — not the underlying transaction — for those users. Consumers, for instance, don’t really care how many pairs of jeans a clothier stocks; but a merchant does care how many cardholders an issuer has on its network. This is most often accomplished by using prices charged to each side (in the case of credit cards, so-called interchange fees) to keep each side an appropriate size.

Moreover, the pricing that occurs on a two-sided platform is secondary, to a varying extent, to the pricing of the subject of the transaction. In a two-sided market, the prices charged to either side of the market are an expression of the platform’s ability to control the terms on which the different sides meet to transact and is relatively indifferent to the thing about which the parties are transacting.

The nature of two-sided markets highlights the role of these markets as more like facilitators of transactions and less like traditional retailers of goods (though this distinction is a matter of degree, and different two-sided markets can be more-or-less two-sided). Because the platform uses prices charged to each side of the market in order to optimize overall use of the platform (that is, output or volume of transactions), pricing in these markets operates differently than pricing in traditional markets. In short, the pricing on one side of the platform is often used to subsidize participation on the other side of the market, because the overall value to both sides is increased as a result. Or, conversely, pricing to one side of the market may appear to be higher than the equilibrium level when viewed for that side alone, because this funds a subsidy to increase participation on another side of the market that, in turn, creates valuable network effects for the side of the market facing the higher fees.

The result of this dynamic is that it is more difficult to assess the price and output effects in multi-sided markets than in traditional markets. One cannot look at just one side of the platform — at the level of output and price charged to consumers of the underlying product, say — but must look at the combined pricing and output of both the underlying transaction as well as the platform’s service itself, across all sides of the platform.

Thus, as David Evans and Richard Schmalensee have observed, traditional antitrust reasoning is made more complicated in the presence of a multi-sided market:

[I]t is not possible to know whether standard economic models, often relied on for antitrust analysis, apply to multi-sided platforms without explicitly considering the existence of multiple customer groups with interdependent demand…. [A] number of results for single-sided firms, which are the focus of much of the applied antitrust economics literature, do not apply directly to multi-sided platforms.

The good news is that antitrust economists have been focusing significant attention on two- and multi-sided markets for a long while. Their work has included attention to modelling the dynamics and effects of competition in these markets, including how to think about traditional antitrust concepts such as market definition, market power and welfare analysis. What has been lacking, however, has been substantial incorporation of this analysis into judicial decisions. Indeed, this is one of the reasons that the Second Circuit’s opinion in this case was, and why the Supreme Court’s opinion will be, so important: this work has reached the point that courts are recognizing that these markets can and should be analyzed differently than traditional markets.

Getting the two-sided analysis wrong in American Express would harm consumers

Khan describes credit card networks as a “classic case of oligopoly,” and opines that American Express’s contractual anti-steering provision is, “[a]s one might expect, the credit card companies us[ing] their power to block competition.” The initial, inherent tension in this statement should be obvious: the assertion is simultaneously that this a non-competitive, oligopolistic market and that American Express is using the anti-steering provision to harm its competitors. Indeed, rather than demonstrating a classic case of oligopoly, this demonstrates the competitive purpose that the anti-steering provision serves: facilitating competition between American Express and other card issuers.

The reality of American Express’s anti-steering provision, which prohibits merchants who choose to accept AmEx cards from “steering” their customers to pay for purchases with other cards, is that it is necessary in order for American Express to compete with other card issuers. Just like analysis of multi-sided markets needs to consider all sides of the market, platforms competing in these markets need to compete on all sides of the market.

But the use of complex pricing schemes to determine prices on each side of the market to maintain an appropriate volume of transactions in the overall market creates a unique opportunity for competitors to behave opportunistically. For instance, if one platform charges a high fee to one side of the market in order to subsidize another side of the market (say, by offering generous rewards), this creates an opportunity for a savvy competitor to undermine that balancing by charging the first side of the market a lower fee, thus attracting consumers from its competitor and, perhaps, making its pricing strategy unprofitable. This may appear to be mere price competition. But the effects of price competition on one side of a multi-sided market are more complicated to evaluate than those of traditional price competition.

Generally, price competition has the effect of lowering prices for goods, increasing output, decreasing deadweight losses, and benefiting consumers. But in a multi-sided market, the high prices charged to one side of the market can be used to benefit consumers on the other side of the market; and that consumer benefit can increase output on that side of the market in ways that create benefits for the first side of the market. When a competitor poaches a platform’s business on a single side of a multi-sided market, the effects can be negative for users on every side of that platform’s market.

This is most often seen in cases, like with credit cards, where platforms offer differentiated products. American Express credit cards are qualitatively different than Visa and Mastercard credit cards; they charge more (to both sides of the market) but offer consumers a more expansive rewards program (funded by the higher transaction fees charged to merchants) and offer merchants access to what are often higher-value customers (ensured by the higher fees charged to card holders).

If American Express did not require merchants to abide by its anti-steering rule, it wouldn’t be able to offer this form of differentiated product; it would instead be required to compete solely on price. Cardholders exist who prefer higher-status cards with a higher-tier of benefits, and there are merchants that prefer to attract a higher-value pool of customers.

But without the anti-steering provisions, the only competition available is on the price to merchants. The anti-steering rule is needed in order to prevent merchants from free-riding on American Express’s investment in attracting a unique group of card holders to its platform. American Express maintains that differentiation from other cards by providing its card holders with unique and valuable benefits — benefits that are subsidized in part by the fees charged to merchants. But merchants that attract customers by advertising that they accept American Express cards but who then steer those customers to other cards erode the basis of American Express’s product differentiation. Because of the interdependence of both sides of the platform, this ends up undermining the value that consumers receive from the platform as American Express ultimately withdraws consumer-side benefits. In the end, the merchants who valued American Express in the first place are made worse off by virtue of being permitted to selectively free-ride on American Express’s network investment.

At this point it is important to note that many merchants continue to accept American Express cards in light of both the cards’ higher merchant fees and these anti-steering provisions. Meanwhile, Visa and Mastercard have much larger market shares, and many merchants do not accept Amex. The fact that merchants who may be irritated by the anti-steering provision continue to accept Amex despite it being more costly, and the fact that they could readily drop Amex and rely on other, larger, and cheaper networks, suggests that American Express creates real value for these merchants. In other words, American Express, in fact, must offer merchants access to a group of consumers who are qualitatively different from those who use Visa or Mastercard cards — and access to this group of consumers must be valuable to those merchants.

An important irony in this case is that those who criticize American Express’s practices, who are arguing these practices limit price competition and that merchants should be able to steer customers to lower-fee cards, generally also argue that modern antitrust law focuses too myopically on prices and fails to account for competition over product quality. But that is precisely what American Express is trying to do: in exchange for a higher price it offers a higher quality card for consumers, and access to a different quality of consumers for merchants.

Anticompetitive conduct here, there, everywhere! Or nowhere.

The good news is that many on the court — and, for that matter, even Ohio’s own attorney — recognize that the effects of the anti-steering rule on the cardholder side of the market need to be considered alongside their effects on merchants:

JUSTICE KENNEDY: Does output include premiums or rewards to customers?
MR. MURPHY: Yeah. Output would include quality considerations as well.

The bad news is that several justices don’t seem to get it. Justice Kagan, for instance, suggested that “the effect of these anti-steering provisions means a market where we will only have high-cost/high-service products.” Justice Kagan’s assertion reveals the hubris of the would-be regulator, bringing to her evaluation of the market a preconception of what that market is supposed to look like. To wit: following her logic, one can say just as much that without the anti-steering provisions we would have a market with only low-cost/low-service products. Without an evaluation of the relative effects — which is more complicated than simple intuition suggests, especially since one can always pay cash — there is no reason to say that either of these would be a better outcome.

The reality, however, is that it is possible for the market to support both high- and low-cost, and high- and low-service products. In fact, this is the market in which we live today. As Justice Gorsuch said, “American Express’s agreements don’t affect MasterCard or Visa’s opportunity to cut their fees … or to advertise that American Express’s are higher. There is room for all kinds of competition here.” Indeed, one doesn’t need to be particularly creative to come up with competitive strategies that other card issuers could adopt, from those that Justice Gorsuch suggests, to strategies where card issuers are, in fact, “forced” to accept higher fees, which they in turn use to attract more card holders to their networks, such as through sign-up bonuses or awards for American Express customers who use non-American Express cards at merchants who accept them.

A standard response to such proposals is “if that idea is so good, why isn’t the market already doing it?” An important part of the answer in this case is that MasterCard and Visa know that American Express relies on the anti-steering provision in order to maintain its product differentiation.

Visa and Mastercard were initially defendants in this case, as well, as they used similar rules to differentiate some of their products. It’s telling that these larger market participants settled because, to some extent, harming American Express is worth more to them than their own product differentiation. After all, consumers steered away from American Express will generally use Visa or Mastercard (and their own high-priced cards may be cannibalizing from their own low-priced cards anyway, so reducing their value may not hurt so much). It is therefore a better strategy for them to try to use the courts to undermine that provision so that they don’t actually need to compete with American Express.

Without the anti-steering provision, American Express loses its competitive advantage compared to MasterCard and Visa and would be forced to compete against those much larger platforms on their preferred terms. What’s more, this would give those platforms access to American Express’s vaunted high-value card holders without the need to invest resources in competing for them. In other words, outlawing anti-steering provisions could in fact have both anti-competitive intent and effect.

Of course, card networks aren’t necessarily innocent of anticompetitive conduct, one way or the other. Showing that they are on either side of the anti-steering rule requires a sufficiently comprehensive analysis of the industry and its participants’ behavior. But liability cannot be simply determined based on behavior on one side of a two-sided market. These companies can certainly commit anticompetitive mischief, and they need to be held accountable when that happens. But this case is not about letting American Express or tech companies off the hook for committing anticompetitive conduct. This case is about how we evaluate such allegations, weigh them against possible beneficial effects, and put in place the proper thorough analysis for this particular form of business.

Over the last two decades, scholars have studied the nature of multi-sided platforms, and have made a good deal of progress. We should rely on this learning, and make sure that antitrust analysis is sound, not expedient.

The U.S. Federal Trade Commission’s (FTC) well-recognized expertise in assessing unfair or deceptive acts or practices can play a vital role in policing abusive broadband practices.  Unfortunately, however, because Section 5(a)(2) of the FTC Act exempts common carriers from the FTC’s jurisdiction, serious questions have been raised about the FTC’s authority to deal with unfair or deceptive practices in cyberspace that are carried out by common carriers, but involve non-common-carrier activity (in contrast, common carrier services have highly regulated terms and must be made available to all potential customers).

Commendably, the Ninth Circuit held on February 26, in FTC v. AT&T Mobility, that harmful broadband data throttling practices by a common carrier were subject to the FTC’s unfair acts or practices jurisdiction, because the common carrier exception is “activity-based,” and the practices in question did not involve common carrier services.  Key excerpts from the summary of the Ninth Circuit’s opinion follow:

The en banc court affirmed the district court’s denial of AT&T Mobility’s motion to dismiss an action brought by th Federal Trade Commission (“FTC”) under Section 5 of the FTC Act, alleging that AT&T’s data-throttling plan was unfair and deceptive. AT&T Mobility’s data-throttling is a practice by which the company reduced customers’ broadband data speed without regard to actual network congestion. Section 5 of the FTC Act gives the agency enforcement authority over “unfair or deceptive acts or practices,” but exempts “common carriers subject to the Acts to regulate commerce.” 15 U.S.C § 45(a)(1), (2). AT&T moved to dismiss the action, arguing that it was exempt from FTC regulation under Section 5. . . .

The en banc court held that the FTC Act’s common carrier exemption was activity-based, and therefore the phrase “common carriers subject to the Acts to regulate commerce” provided immunity from FTC regulation only to the extent that a common carrier was engaging in common carrier services. In reaching this conclusion, the en banc court looked to the FTC Act’s text, the meaning of “common carrier” according to the courts around the time the statute was passed in 1914, decades of judicial interpretation, the expertise of the FTC and Federal Communications Commission (“FCC”), and legislative history.

Addressing the FCC’s order, issued on March 12, 2015, reclassifying mobile data service from a non-common carriage service to a common carriage service, the en banc court held that the prospective reclassification order did not rob the FTC of its jurisdiction or authority over conduct occurring before the order. Accordingly, the en banc court affirmed the district court’s denial of AT&T’s motion to dismiss.

A key introductory paragraph in the Ninth Circuit’s opinion underscores the importance of the court’s holding for sound regulatory policy:

This statutory interpretation [that the common carrier exception is activity-based] also accords with common sense. The FTC is the leading federal consumer protection agency and, for many decades, has been the chief federal agency on privacy policy and enforcement. Permitting the FTC to oversee unfair and deceptive non-common-carriage practices of telecommunications companies has practical ramifications. New technologies have spawned new regulatory challenges. A phone company is no longer just a phone company. The transformation of information services and the ubiquity of digital technology mean that telecommunications operators have expanded into website operation, video distribution, news and entertainment production, interactive entertainment services and devices, home security and more. Reaffirming FTC jurisdiction over activities that fall outside of common-carrier services avoids regulatory gaps and provides consistency and predictability in regulatory enforcement.

But what can the FTC do about unfair or deceptive practices affecting broadband services, offered by common carriers, subsequent to the FCC’s 2015 reclassification of mobile data service as a common carriage service?  The FTC will be able to act, assuming that the Federal Communications Commission’s December 2017 rulemaking, reclassifying mobile broadband Internet access service as not involving a common carrier service, passes legal muster (as it should).  In order to avoid any legal uncertainty, however, Congress could take the simple step of eliminating the FTC Act’s common carrier exception – an outdated relic that threatens to generate disparate enforcement outcomes toward the same abusive broadband practice, based merely upon whether the parent company is deemed a “common carrier.”

The cause of basing regulation on evidence-based empirical science (rather than mere negative publicity) – and of preventing regulatory interference with First Amendment commercial speech rights – got a judicial boost on February 26.

Specifically, in National Association of Wheat Growers et al. v. Zeise (Monsanto Case), a California federal district court judge preliminarily enjoined application against Monsanto of a labeling requirement imposed by a California regulatory law, Proposition 65.  Proposition 65 mandates that the Governor of California publish a list of chemicals known to the State to cause cancer, and also prohibits any person in the course of doing business from knowingly and intentionally exposing anyone to the listed chemicals without a prior “clear and reasonable” warning.  In this case, California sought to make Monsanto place warning labels on its popular Roundup weed killer products, stating that glyphosate, a widely-used herbicide and key Roundup ingredient, was known to cause cancer.  Monsanto, joined by various agribusiness entities, sued to enjoin California from taking that action.  Judge William Shubb concluded that there was insufficient evidence that the active ingredient in Roundup causes cancer, and that requiring Roundup to publish warning labels would violate Monsanto’s First Amendment rights by compelling it to engage in false and misleading speech.  Salient excerpts from Judge Shubb’s opinion are set forth below:

[When, as here, it compels commercial speech, in order to satisfy the First Amendment,] [t]he State has the burden of demonstrating that a disclosure requirement is purely factual and uncontroversial, not unduly burdensome, and reasonably related to a substantial government interest. . . .  The dispute in the present case is over whether the compelled disclosure is of purely factual and uncontroversial information. In this context, “uncontroversial” “refers to the factual accuracy of the compelled disclosure, not to its subjective impact on the audience.” [citation omitted]

 On the evidence before the court, the required warning for glyphosate does not appear to be factually accurate and uncontroversial because it conveys the message that glyphosate’s carcinogenicity is an undisputed fact, when almost all other regulators have concluded that there is insufficient evidence that glyphosate causes cancer. . . .

It is inherently misleading for a warning to state that a chemical is known to the state of California to cause cancer based on the finding of one organization [, the International Agency for Research on Cancer] (which as noted above, only found that substance is probably carcinogenic), when apparently all other regulatory and governmental bodies have found the opposite, including the EPA, which is one of the bodies California law expressly relies on in determining whether a chemical causes cancer. . . .  [H]ere, given the heavy weight of evidence in the record that glyphosate is not in fact known to cause cancer, the required warning is factually inaccurate and controversial. . . .

The court’s First Amendment inquiry here boils down to what the state of California can compel businesses to say. Whether Proposition 65’s statutory and regulatory scheme is good policy is not at issue. However, where California seeks to compel businesses to provide cancer warnings, the warnings must be factually accurate and not misleading. As applied to glyphosate, the required warnings are false and misleading. . . .

As plaintiffs have shown that they are likely to succeed on the merits of their First Amendment claim, are likely to suffer irreparable harm absent an injunction, and that the balance of equities and public interest favor an injunction, the court will grant plaintiffs’ request to enjoin Proposition 65’s warning requirement for glyphosate.

The Monsanto Case commendably highlights a little-appreciated threat of government overregulatory zeal.  Not only may excessive regulation fail a cost-benefit test, and undermine private property rights, it may violates the First Amendment speech rights of private actors when it compels inaccurate speech.  The negative economic consequences may be substantial  when the government-mandated speech involves a claim about a technical topic that not only lacks empirical support (and thus may be characterized as “junk science”), but is deceptive and misleading (if not demonstrably false).  Deceptive and misleading speech in the commercial market place reduces marketplace efficiency and reduces social welfare (both consumer’s surplus and producer’s surplus).  In particular, it does this by deterring mutually beneficial transactions (for example, purchases of Roundup that would occur absent misleading labeling about cancer risks), generating suboptimal transactions (for example, purchases of inferior substitutes to Roundup due to misleading Roundup labeling), and distorting competition within the marketplace (the reallocation of market shares among Roundup and substitutes not subject to labeling).  The short-term static effects of such market distortions may be dwarfed by the  dynamic effects, such as firms’ disincentives to invest in innovation (or even participate) in markets subject to inaccurate information concerning the firms’ products or services.

In short, the Monsanto Case highlights the fact that government regulation not only imposes an implicit tax on business – it affirmatively distorts the workings of individual markets if it causes the introduction misleading or deceptive information that is material to marketplace decision-making.  The threat of such distortive regulation may be substantial, especially in areas where regulators interact with “public interest clients” that have an incentive to demonize disfavored activities by private commercial actors – one example being the health and safety regulation of agricultural chemicals.  In those areas, there may be a case for federal preemption of state regulation, and for particularly close supervision of federal agencies to avoid economically inappropriate commercial speech mandates.  Stay tuned for future discussion of such potential legal reforms.

Over the last two decades, the United States government has taken the lead in convincing jurisdictions around the world to outlaw “hard core” cartel conduct.  Such cartel activity reduces economic welfare by artificially fixing prices and reducing the output of affected goods and services.  At the same, the United States has acted to promote international cooperation among government antitrust enforcers to detect, investigate, and punish cartels.

In 2017, however, the U.S. Court of Appeal for the Second Circuit (citing concerns of “international comity”) held that a Chinese export cartel that artificially raised the price of vitamin imports into the United States should be shielded from U.S. antitrust penalties—based merely on one brief from a Chinese government agency that said it approved of the conduct. The U.S. Supreme Court is set to review that decision later this year, in a case styled Animal Science Products, Inc., v. Hebei Welcome Pharmaceutical Co. Ltd.  By overturning the Second Circuit’s ruling (and disavowing the overly broad “comity doctrine” cited by that court), the Supreme Court would reaffirm the general duty of federal courts to apply federal law as written, consistent with the constitutional separation of powers.  It would also reaffirm the importance of the global fight against cartels, which has reflected consistent U.S. executive branch policy for decades (and has enjoyed strong support from the International Competition Network, the OECD, and the World Bank).

Finally, as a matter of economic policy, the Animal Science Products case highlights the very real harm that occurs when national governments tolerate export cartels that reduce economic welfare outside their jurisdictions, merely because domestic economic interests are not directly affected.  In order to address this problem, the U.S. government should negotiate agreements with other nations under which the signatory states would agree:  (1) not to legally defend domestic exporting entities that impose cartel harm in other jurisdictions; and (2) to cooperate more fully in rooting out harmful export-cartel activity, wherever it is found.

For a more fulsome discussion of the separation of powers, international relations, and economic policy issues raised by the Animal Science Products case, see my recent Heritage Foundation Legal Memorandum entitled The Supreme Court and Animal Science Products: Sovereignty and Export Cartels.

The Internet is a modern miracle: from providing all varieties of entertainment, to facilitating life-saving technologies, to keeping us connected with distant loved ones, the scope of the Internet’s contribution to our daily lives is hard to overstate. Moving forward there is undoubtedly much more that we can and will do with the Internet, and part of that innovation will, naturally, require a reconsideration of existing laws and how new Internet-enabled modalities fit into them.

But when undertaking such a reconsideration, the goal should not be simply to promote Internet-enabled goods above all else; rather, it should be to examine the law’s effect on the promotion of new technology within the context of other, competing social goods. In short, there are always trade-offs entailed in changing the legal order. As such, efforts to reform, clarify, or otherwise change the law that affects Internet platforms must be balanced against other desirable social goods, not automatically prioritized above them.

Unfortunately — and frequently with the best of intentions — efforts to promote one good thing (for instance, more online services) inadequately take account of the balance of the larger legal realities at stake. And one of the most important legal realities that is too often readily thrown aside in the rush to protect the Internet is that policy be established through public, (relatively) democratically accountable channels.

Trade deals and domestic policy

Recently a letter was sent by a coalition of civil society groups and law professors asking the NAFTA delegation to incorporate U.S.-style intermediary liability immunity into the trade deal. Such a request is notable for its timing in light of the ongoing policy struggles over SESTA —a bill currently working its way through Congress that seeks to curb human trafficking through online platforms — and the risk that domestic platform companies face of losing (at least in part) the immunity provided by Section 230 of the Communications Decency Act. But this NAFTA push is not merely about a tradeoff between less trafficking and more online services, but between promoting policies in a way that protects the rule of law and doing so in a way that undermines the rule of law.

Indeed, the NAFTA effort appears to be aimed at least as much at sidestepping the ongoing congressional fight over platform regulation as it is aimed at exporting U.S. law to our trading partners. Thus, according to EFF, for example, “[NAFTA renegotiation] comes at a time when Section 230 stands under threat in the United States, currently from the SESTA and FOSTA proposals… baking Section 230 into NAFTA may be the best opportunity we have to protect it domestically.”

It may well be that incorporating Section 230 into NAFTA is the “best opportunity” to protect the law as it currently stands from efforts to reform it to address conflicting priorities. But that doesn’t mean it’s a good idea. In fact, whatever one thinks of the merits of SESTA, it is not obviously a good idea to use a trade agreement as a vehicle to override domestic reforms to Section 230 that Congress might implement. Trade agreements can override domestic law, but that is not the reason we engage in trade negotiations.

In fact, other parts of NAFTA remain controversial precisely for their ability to undermine domestic legal norms, in this case in favor of guaranteeing the expectations of foreign investors. EFF itself is deeply skeptical of this “investor-state” dispute process (“ISDS”), noting that “[t]he latest provisions would enable multinational corporations to undermine public interest rules.” The irony here is that ISDS provides a mechanism for overriding domestic policy that is a close analogy for what EFF advocates for in the Section 230/SESTA context.

ISDS allows foreign investors to sue NAFTA signatories in a tribunal when domestic laws of that signatory have harmed investment expectations. The end result is that the signatory could be responsible for paying large sums to litigants, which in turn would serve as a deterrent for the signatory to continue to administer its laws in a similar fashion.

Stated differently, NAFTA currently contains a mechanism that favors one party (foreign investors) in a way that prevents signatory nations from enacting and enforcing laws approved of by democratically elected representatives. EFF and others disapprove of this.

Yet, at the same time, EFF also promotes the idea that NAFTA should contain a provision that favors one party (Internet platforms) in a way that would prevent signatory nations from enacting and enforcing laws like SESTA that (might be) approved of by democratically elected representatives.

A more principled stance would be skeptical of the domestic law override in both contexts.

Restating Copyright or creating copyright policy?

Take another example: Some have suggested that the American Law Institute (“ALI”) is being used to subvert Congressional will. Since 2013, ALI has taken upon itself the project to “restate” the law of copyright. ALI is well known and respected for its common law restatements, but it may be that something more than mere restatement is going on here. As the NY Bar Association recently observed:

The Restatement as currently drafted appears inconsistent with the ALI’s long-standing goal of promoting clarity in the law: indeed, rather than simply clarifying or restating that law, the draft offers commentary and interpretations beyond the current state of the law that appear intended to shape current and future copyright policy.  

It is certainly odd that ALI (or any other group) would seek to restate a body of law that is already stated in the form of an overarching federal statute. The point of a restatement is to gather together the decisions of disparate common law courts interpreting different laws and precedent in order to synthesize a single, coherent framework approximating an overall consensus. If done correctly, a restatement of a federal statute would, theoretically, end up with the exact statute itself along with some commentary about how judicial decisions have filled in the blanks differently — a state of affairs that already exists with the copious academic literature commenting on federal copyright law.

But it seems that merely restating judicial interpretations was not the only objective behind the copyright restatement effort. In a letter to ALI, one of the scholars responsible for the restatement project noted that:

While congressional efforts to improve the Copyright Act… may be a welcome and beneficial development, it will almost certainly be a long and contentious process… Register Pallante… [has] not[ed] generally that “Congress has moved slowly in the copyright space.”

Reform of copyright law, in other words, and not merely restatement of it, was an important impetus for the project. As an attorney for the Copyright Office observed, “[a]lthough presented as a “Restatement” of copyright law, the project would appear to be more accurately characterized as a rewriting of the law.” But “rewriting” is a job for the legislature. And even if Congress moves slowly, or the process is frustrating, the democratic processes that produce the law should still be respected.

Pyrrhic Policy Victories

Attempts to change copyright or entrench liability immunity through any means possible are rational actions at an individual level, but writ large they may undermine the legal fabric of our system and should be resisted.

It’s no surprise why some may be frustrated and concerned about intermediary liability and copyright issues: On the margin, it’s definitely harder to operate an Internet platform if it faces sweeping liability for the actions of third parties (whether for human trafficking or infringing copyrights). Maybe copyright law needs to be reformed and perhaps intermediary liability must be maintained exactly as it is (or expanded). But the right way to arrive at these policy outcomes is not through backdoors — and it is not to begin with the assertion that such outcomes are required.

Congress and the courts can be frustrating vehicles through which to enact public policy, but they have the virtue of being relatively open to public deliberation, and of having procedural constraints that can circumscribe excesses and idiosyncratic follies. We might get bad policy from Congress. We might get bad cases from the courts. But the theory of our system is that, on net, having a frustratingly long, circumscribed, and public process will tend to weed out most of the bad ideas and impulses that would otherwise result from unconstrained decision making, even if well-intentioned.

We should meet efforts like these to end-run Congress and the courts with significant skepticism. Short term policy “victories” are likely not worth the long-run consequences. These are important, complicated issues. If we surreptitiously adopt idiosyncratic solutions to them, we risk undermining the rule of law itself.

The two-year budget plan passed last week makes important changes to payment obligations in the Medicare Part D coverage gap, also known as the donut hole.  While the new plan produces a one-year benefit for seniors by reducing what they pay a year earlier than was already mandated, it permanently shifts much of the drug costs insurance companies were paying to drug makers.  It’s far from clear whether this windfall for insurers will result in lower drug costs for Medicare beneficiaries.

Medicare Part D is voluntary prescription drug insurance for seniors and the permanently disabled provided by private insurance plans that are approved by the Medicare program.  Last year, more than 42 million people enrolled in Medicare Part D plans. Payment for prescription drugs under Medicare Part D depends on how much enrollees spend on drugs.  In 2018, after hitting a deductible that varies by plan, enrollees pay 25% of their drug costs while the Part D plans pay 75%.  However, once the individual and the plan have spent a total of $3,750, enrollees hit the coverage gap that lasts until $8,418 has been spent.  In the coverage gap, enrollees pay 35% of brand drug costs, the Part D plans pay 15%, and drug makers are required to offer 50% discounts on brand drugs to cover the rest.  Once total spending reaches $8,418, enrollees enter catastrophic coverage in which they pay only 5% of drug costs, the Part D plans pay 15%, and the Medicare program pays the other 80%.

The Affordable Care Act (ACA) included provisions to phase out the coverage gap by 2020, so that enrollees will pay only 25% of drug costs from the time they meet the deductible until they hit the catastrophic coverage level.  The budget plan passed last week speeds up this phase out by one year, so enrollees will start paying only 25% in 2019 instead of 2020.  The ACA anticipated that with enrollees paying 25% of drug costs and drug maker discounts of 50%, the Part D plans would pay the other 25%.  However, last week’s budget plan drastically redistributed the payment responsibilities from the Part D insurance plans to drug makers. Under the new plan drug makers are required to offer 70% discounts so that the plans only have to pay 5% of the total drug costs.  That is, the new plan shifts 20% of total drug costs in the coverage gap from insurers to drug makers.

Although the drug spending in each individual’s coverage gap is less than $5,000, with over 42 million people covered, the total spending, and the 20% of spending shifted from insurers to drug makers, is significant.  CMS has estimated that when drug makers’ discounts were only covering 50% of drug spending in the gap, the annual total discounts amounted to over $5.6 billion.  Requiring drug makers to cover another 20% of drug spending will add several billion dollars more to this total.

A government intervention that forces suppliers to cover 70% of the spending in a market is a surprising move for Republicans—supposed advocates of free markets.  Moreover, although reducing prescription drug costs has become a national priority, it’s unclear whether shifting costs from insurers to drug makers will benefit individuals at all.  Theoretically, as the individual Part D plans pay less of their enrollees’ drug costs, they should pass on the savings to enrollees in the form of lower premiums.  However, several studies suggest that enrollees may not experience a net decrease in drug spending.  The Centers for Medicare and Medicaid Services (CMS) has determined that under Medicare Part D, drug makers increase list prices to offset other concessions and to more quickly move enrollees out of the coverage gap where drug makers are required to offer price discounts.  Higher list prices mean that enrollees’ total out-of-pocket drug spending increases; even a 5% cost-sharing obligation in the catastrophic coverage for a high-priced drug can be a significant expense. Higher list prices that push enrollees out of the coverage gap also shift more costs onto the Medicare program that pays 80% of drug costs in the catastrophic coverage phase.

A better, more direct way to reduce Medicare Part D enrollees’ out-of-pocket drug spending is to require point-of-sale rebates.  Currently, drug makers offer rebates to Part D plans in order to improve their access to the millions of individuals covered by the plans.  However, the rebates, which total over $16 billion annually, are paid after the point-of-sale, and evidence shows that only a portion of these rebates get passed through to beneficiaries in the form of reduced insurance premiums.  Moreover, a reduction in premiums does little to benefit those enrolled individuals who have the highest aggregate out-of-pocket spending on drugs. (As an aside, in contrast to the typical insurance subsidization of high-cost enrollees by low-cost enrollees, high-spending enrollees under Medicare Part D generate greater rebates for their plans, but then the rebates are spread across all enrollees in the form of lower premiums).

Drug maker rebates will more directly benefit Medicare Part D enrollees if rebates are passed through at the point-of-sale to reduce drug copays.  Point-of-sale rebates would ensure that enrollees see immediate savings as they meet their cost-sharing obligations.  Moreover, the enrollees with the highest aggregate out-of-pocket spending would be the ones to realize the greatest savings.  CMS has recently solicited comments on a plan to require some portion of drug makers’ rebates to be applied at the point of sale, and the President’s budget plan released yesterday proposes point-of-sale rebates to lower Medicare Part D enrollees’ out-of-pocket spending.  Ultimately, targeting rebates to consumers at the point-of-sale will more effectively lower drug spending than reducing insurance plans’ payment obligations in hopes that they pass on the savings to enrollees.

On January 23rd, the Heritage Foundation convened its Fourth Annual Antitrust Conference, “Trump Antitrust Policy after One Year.”  The entire Conference can be viewed online (here).  The Conference featured a keynote speech, followed by three separate panels that addressed  developments at the Federal Trade Commission (FTC), at the Justice Department’s Antitrust Division (DOJ), and in the international arena, developments that can have a serious effect on the country’s economic growth and expansion of our business and industrial sector.

  1. Professor Bill Kovacic’s Keynote Speech

The conference started with a bang, featuring a stellar keynote speech (complemented by excellent power point slides) by GW Professor and former FTC Chairman Bill Kovacic, who also serves as a Member of the Board of the UK Government’s Competitive Markets Authority.  Kovacic began by noting the claim by senior foreign officials that “nothing is happening” in U.S. antitrust enforcement.  Although this perception may be inaccurate, Kovacic argued that it colors foreign officials’ dealings with the U.S., and continues a preexisting trend of diminishing U.S. influence on foreign governments’ antitrust enforcement systems.  (It is widely believed that the European antitrust model is dominant internationally.)

In order to enhance the perceived effectiveness (and prestige) of American antitrust on the global plane, American antitrust enforcers should, according to Kovacic, adopt a positive agenda citing specific priorities for action (as opposed to a “negative approach” focused on what actions will not be taken) – an orientation which former FTC Chairman Muris employed successfully in the last Bush Administration.  The positive engagement themes should be communicated powerfully to the public here and abroad through active public engagement by agency officials.  Agency strengths, such as FTC market studies and economic expertise, should be highlighted.

In addition, the FTC and Justice Department should act more like an “antitrust policy joint venture” at home and abroad, extending cooperation beyond guidelines to economic research, studies, and other aspects of their missions.  This would showcase the outstanding capabilities of the U.S. public antitrust enterprise.

  1. FTC Panel

A panel on FTC developments (moderated by Dr. Jeff Eisenach, Managing Director of NERA Economic Consulting and former Chief of Staff to FTC Chairman James Miller) followed Kovacic’s presentation.

Acting Bureau of Competition Chief Bruce Hoffman began by stressing that FTC antitrust enforcers are busier than ever, with a number of important cases in litigation and resources stretched to the limit.  Thus, FTC enforcement is neither weak nor timid – to the contrary, it is quite vigorous.  Hoffman was surprised by recent political attacks on the 40 year bipartisan consensus regarding the economics-centered consumer welfare standard that has set the direction of U.S. antitrust enforcement.  According to Hoffman, noted economist Carl Shapiro has debunked the notion that supposed increases in industry concentration even at the national level are meaningful.  In short, there is no empirical basis to dethrone the consumer welfare standard and replace it with something else.

Other former senior FTC officials engaged in a discussion following Hoffman’s remarks.  Orrick Partner Alex Okuliar, a former Attorney-Advisor to FTC Acting Chairman Maureen Ohlhausen, noted Ohlhausen’s emphasis on “regulatory humility” ( recognizing the inherent limitations of regulation and acting in accordance with those limits) and on the work of the FTC’s Economic Liberty Task Force, which centers on removing unnecessary regulatory restraints on competition (such as excessive occupational licensing requirements).

Wilson Sonsini Partner Susan Creighton, a former Director of the FTC’s Bureau of Competition, discussed the importance of economics-based “technocratic antitrust” (applied by sophisticated judges) for a sound and manageable antitrust system – something still not well understood by many foreign antitrust agencies.  Creighton had three reform suggestions for the Trump Administration:

(1) the DOJ and the FTC should stress the central role of economics in the institutional arrangements of antitrust (DOJ’s “economics structure” is a bit different than the FTC’s);

(2) both agencies should send relatively more economists to represent us at antitrust meetings abroad, thereby enabling the agencies to place a greater stress on the importance of economic rigor in antitrust enforcement; and

(3) the FTC and the DOJ should establish a task force to jointly carry out economics research and hone a consistent economic policy message.

Sidley & Austin Partner Bill Blumenthal, a former FTC General Counsel, noted the problems of defining Trump FTC policy in the absence of new Trump FTC Commissioners.  Blumenthal noted that signs of a populist uprising against current antitrust norms extend beyond antitrust, and that the agencies may have to look to new unilateral conduct cases to show that they are “doing something.”  He added that the populist rejection of current economics-based antitrust analysis is intellectually incoherent.  There is a tension between protecting consumers and protecting labor; for example, anti-consumer cartels may be beneficial to labor union interests.

In a follow-up roundtable discussion, Hoffman noted that theoretical “existence theorems” of anticompetitive harm that lack empirical support in particular cases are not administrable.  Creighton opined that, as an independent agency, the FTC may be a bit more susceptible to congressional pressure than DOJ.  Blumenthal stated that congressional interest may be able to trigger particular investigations, but it does not dictate outcomes.

  1. DOJ Panel

Following lunch, a panel of antitrust experts (moderated by Morgan Lewis Partner and former Chief of Staff to the Assistant Attorney General Hill Wellford) addressed DOJ developments.

The current Principal Deputy Assistant Attorney General for Antitrust, Andrew Finch, began by stating that the three major Antitrust Division initiatives involve (1) intellectual property (IP), (2) remedies, and (3) criminal enforcement.  Assistant Attorney General Makan Delrahim’s November 2017 speech explained that antitrust should not undermine legitimate incentives of patent holders to maximize returns to their IP through licensing.  DOJ is looking into buyer and seller cartel behavior (including in standard setting) that could harm IP rights.  DOJ will work to streamline and improve consent decrees and other remedies, and make it easier to go after decree violations.  In criminal enforcement, DOJ will continue to go after “no employee poaching” employer agreements as criminal violations.

Former Assistant Attorney General Tom Barnett, a Covington & Burling Partner, noted that more national agencies are willing to intervene in international matters, leading to inconsistencies in results.  The International Competition Network is important, but major differences in rhetoric have created a sense that there is very little agreement among enforcers, although the reality may be otherwise.  Muted U.S. agency voices on the international plane and limited resources have proven unfortunate – the FTC needs to engage better in international discussions and needs new Commissioners.

Former Counsel to the Assistant Attorney Eric Grannon, a White & Case Partner, made three specific comments:

(1) DOJ should look outside the career criminal enforcement bureaucracy and consider selecting someone with significant private sector experience as Deputy Assistant Attorney General for Criminal Enforcement;

(2) DOJ needs to go beyond merely focusing on metrics that show increased aggregate fines and jail time year-by-year (something is wrong if cartel activities and penalties keep rising despite the growing emphasis on inculcating an “anti-cartel culture” within firms); and

(3) DOJ needs to reassess its “amnesty plus” program, in which an amnesty applicant benefits by highlighting the existence of a second cartel in which it participates (non-culpable firms allegedly in the second cartel may be fingered, leading to unjustified potential treble damages liability for them in private lawsuits).

Grannon urged that DOJ hold a public workshop on the amnesty plus program in the coming year.  Grannon also argued against the classification of antitrust offenses as crimes of “moral turpitude” (moral turpitude offenses allow perpetrators to be excluded from the U.S. for 20 years).  Finally, as a good government measure, Grannon recommended that the Antitrust Division should post all briefs on its website, including those of opposing parties and third parties.

Baker and Botts Partner Stephen Weissman, a former Deputy Director of the FTC’s Bureau of Competition, found a great deal of continuity in DOJ civil enforcement.  Nevertheless, he expressed surprise at Assistant Attorney General Delrahim’s recent remarks that suggested that DOJ might consider asking the Supreme Court to overturn the Illinois Brick ban on indirect purchaser suits under federal antitrust law.  Weissman noted the increased DOJ focus on the rights of IP holders, not implementers, and the beneficial emphasis on the importance of DOJ’s amicus program.

The following discussion among the panelists elicited agreement (Weissman and Barnett) that the business community needs more clear-cut guidance on vertical mergers (and perhaps on other mergers as well) and affirmative statements on DOJ’s plans.  DOJ was characterized as too heavy-handed in setting timing agreements in mergers.  The panelists were in accord that enforcers should continue to emphasize the American consumer welfare model of antitrust.  The panelists believed the U.S. gets it right in stressing jail time for cartelists and in detrebling for amnesty applicants.  DOJ should, however, apply a proper dose of skepticism in assessing the factual content of proffers made by amnesty applicants.  Former enforcers saw no need to automatically grant markers to those applicants.  Andrew Finch returned to the topic of Illinois Brick, explaining that the Antitrust Modernization Commission had suggested reexamining that case’s bar on federal indirect purchaser suits.  In response to an audience question as to which agency should do internet oversight, Finch stressed that relevant agency experience and resources are assessed on a matter-specific basis.

  1. International Panel

The last panel of the afternoon, which focused on international developments, was moderated by Cadwalader Counsel (and former Attorney-Advisor to FTC Chairman Tim Muris) Bilal Sayyed.

Deputy Assistant Attorney General for International Matters, Roger Alford, began with an overview of trade and antitrust considerations.  Alford explained that DOJ adds a consumer welfare and economics perspective to Trump Administration trade policy discussions.  On the international plane, DOJ supports principles of non-discrimination, strong antitrust enforcement, and opposition to national champions, plus the addition of a new competition chapter in “NAFTA 2.0” negotiations.  The revised 2017 DOJ International Antitrust Guidelines dealt with economic efficiency and the consideration of comity.  DOJ and the Executive Branch will take into account the degree of conflict with other jurisdictions’ laws (fleshing out comity analysis) and will push case coordination as well as policy coordination.  DOJ is considering new ideas for dealing with due process internationally, in addition to working within the International Competition Network to develop best practices.  Better international coordination is also needed on the cartel leniency program.

Next, Koren Wong-Ervin, Qualcomm Director of IP and Competition Policy (and former Director of the Scalia Law School’s Global Antitrust Institute) stated that the Korea Fair Trade Commission had ignored comity and guidance from U.S. expert officials in imposing global licensing remedies and penalties on Qualcomm.  The U.S. Government is moving toward a sounder approach on the evaluation of standard essential patents, as is Europe, with a move away from required component-specific patent licensing royalty determinations.  More generally, a return to an economic effects-based approach to IP licensing is important.  Comprehensive revisions to China’s Anti-Monopoly Law, now under consideration, will have enormous public policy importance.  Balanced IP licensing rules, with courts as gatekeepers, are important.  Chinese law still has overly broad essential facilities and deception law; IP price regulation proposals are very troublesome.  New FTC Commissioners are needed, accompanied by robust budget support for international work.

Latham & Watkins’ Washington, D.C. Managing Partner Michael Egge focused on the substantial divergence in merger enforcement practice around the world.  The cost of compliance imposed by European Commission pre-notification filing requirements is overly high; this pre-notification practice is not written down and has escaped needed public attention.  Chinese merger filing practice (“China is struggling to cope”) features a costly 1-3 month pre-filing acceptance period, and merger filing requirements in India are particularly onerous.

Jim Rill, former Assistant Attorney General for Antitrust and former ABA Antitrust Section Chair, stressed that due process improvements can help promote substantive antitrust convergence around the globe.  Rill stated that U.S. Government officials, with the assistance of private sector stakeholders, need a mechanism (a “report card”) to measure foreign agencies’ implementation of OECD antitrust recommendations.  U.S. Government officials should consider participating in foreign proceedings where the denial of due process is blatant, and where foreign governments indirectly dictate a particular harmful policy result.  Multilateral review of international agreements is valuable as well.  The comity principles found in the 1991 EU-U.S. Antitrust Cooperation Agreement are quite useful.  Trade remedies in antitrust agreements are not a competition solution, and are not helpful.  More and better training programs for foreign officials are called for; International Chamber of Commerce, American Bar Association, and U.S. Chamber of Commerce principles are generally sound.  Some consideration should be given to old ICPAC recommendations, such as (perhaps) the development of a common merger notification form for use around the world.

Douglas Ginsburg, Senior Judge (and former Chief Judge) of the U.S. Court of Appeals for the D.C. Circuit, and former Assistant Attorney General for Antitrust, spoke last, focusing on the European Court of Justice’s Intel decision, which laid bare the deficiencies in the European Commission’s finding of a competition law violation in that matter.

In a brief closing roundtable discussion, Roger Alford suggested possible greater involvement by business community stakeholders in training foreign antitrust officials.

  1. Conclusion

Heritage Foundation host Alden Abbott closed the proceedings with a brief capsule summary of panel highlights.  As in prior years, the Fourth Annual Heritage Antitrust Conference generated spirited discussion among the brightest lights in the American antitrust firmament on recent developments and likely trends in antitrust enforcement and policy development, here and abroad.

A panelist brought up an interesting tongue-in-cheek observation about the rising populist antitrust movement at a Heritage antitrust event this week. To the extent that the new populist antitrust movement is broadly concerned about effects on labor and wage depression, then, in principle, it should also be friendly to cartels. Although counterintuitive, employees have long supported and benefited from cartels, because cartels generally afford both job security and higher wages than competitive firms. And, of course, labor itself has long sought the protection of cartels – in the form of unions – to secure the same benefits.   

For instance, in the days before widespread foreign competition in domestic auto markets, native unionized workers of the big three producers enjoyed a relatively higher wage for relatively less output. Competition from abroad changed the economic landscape for both producers and workers with the end result being a reduction in union power and relatively lower overall wages for workers. The union model — a labor cartel — can guarantee higher wages to those workers.

The same story can be seen on other industries, as well, from telecommunications to service workers to public sector employees. Generally, market power on the labor demand side (employers) tends to facilitate market power on the labor supply side: firms with market power — with supracompetitive profits — can afford to pay more for labor and often are willing to do so in order to secure political support (and also to make it more expensive for potential competitors to hire skilled employees). Labor is a substantial cost for firms in competitive markets, however, so firms without market power are always looking to economize on labor (that is, have low wages, as few employees as needed, and to substitute capital for labor wherever efficient to do so).

Therefore, if broad labor effects should be a prime concern of antitrust, perhaps enforcers should use antitrust laws to encourage cartel formation when it might increase wages, regardless of the effects on productivity, prices, and other efficiencies that may arise (or perhaps, as a possible trump card to hold against traditional efficiencies justifications).

No one will make a serious case for promoting cartels (although Former FTC Chairman Pertshuk sounded similar notes in the late 70s), but the comment makes a deeper point about ongoing efforts to undermine the consumer welfare standard. Fundamental contradictions exist in antitrust rhetoric that is unmoored from economic analysis. Professor Hovenkamp highlighted this in a recent paper as well:

The coherence problem [in antitrust populism] shows up in goals that are unmeasurable and fundamentally inconsistent, although with their contradictions rarely exposed. Among the most problematic contradictions is the one between small business protection and consumer welfare. In a nutshell, consumers benefit from low prices, high output and high quality and variety of products and services. But when a firm or a technology is able to offer these things they invariably injure rivals, typically smaller or dedicated to older technologies, who are unable to match them. Although movement antitrust rhetoric is often opaque about specifics, its general effect is invariably to encourage higher prices or reduced output or innovation, mainly for the protection of small business. Indeed, that has been a predominant feature of movement antitrust ever since the Sherman Act was passed, and it is a prominent feature of movement antitrust today. Indeed, some spokespersons for movement antitrust write as if low prices are the evil that antitrust law should be combatting.

To be fair, even with careful economic analysis, it is not always perfectly clear how to resolve the tensions between antitrust and other policy preferences.  For instance, Jonathan Adler described the collision between antitrust and environmental protection in cases where collusion might lead to better environmental outcomes. But even in cases like that, he noted it was essentially a free-rider problem and, as with intrabrand price agreements where consumer goodwill was a “commons” that had to be suitably maintained against possible free-riding retailers, what might be an antitrust violation in one context was not necessarily a violation in a second context.  

Moreover, when the purpose of apparently “collusive” conduct is to actually ensure long term, sustainable production of a good or service (like fish), the behavior may not actually be anticompetitive. Thus, antitrust remains a plausible means of evaluating economic activity strictly on its own terms (and any alteration to the doctrine itself might actually be to prefer rule of reason analysis over per se analysis when examining these sorts of mitigating circumstances).

And before contorting antitrust into a policy cure-all, it is important to remember that the consumer welfare standard evolved out of sometimes good (price fixing bans) and sometimes questionable (prohibitions on output contracts) doctrines that were subject to legal trial and error. This was an evolution that was triggered by “increasing economic sophistication” and as “the enforcement agencies and courts [began] reaching for new ways in which to weigh competing and conflicting claims.”

The vector of that evolution was toward the use of  antitrust as a reliable, testable, and clear set of legal principles that are ultimately subject to economic analysis. When the populists ask us, for instance, to return to a time when judges could “prevent the conversion of concentrated economic power into concentrated political power” via antitrust law, they are asking for much more than just adding a new gloss to existing doctrine. They are asking for us to unlearn all of the lessons of the twentieth century that ultimately led toward the maturation of antitrust law.

It’s perfectly reasonable to care about political corruption, worker welfare, and income inequality. It’s not perfectly reasonable to try to shoehorn goals based on these political concerns into a body of legal doctrine that evolved a set of tools wholly inappropriate for achieving those ends.

Are current antitrust tools fully adequate to cope with the challenges posed by giant online “digital platforms” (such as Google, Amazon, and Facebook)?  Yes.  Should antitrust rules be expanded to address broader social concerns that transcend consumer welfare and economic efficiency, such as income inequality and allegedly excessive big business influence on the political process?  No.  For more details, see my January 23 Heritage Foundation Legal Memorandum entitled Antitrust and the Winner-Take-All Economy.  That Memo concludes:

[T]he U.S. antitrust laws as currently applied, emphasizing sound economics, are fully capable of preventing truly anticompetitive behavior by major Internet platform companies and other large firms. But using antitrust to attack companies based on non-economic, ill-defined concerns about size, fairness, or political clout is unwarranted, and would be a recipe for reduced innovation and economic stagnation. Recent arguments trotted out to use antitrust in such an expansive manner are baseless, and should be rejected by enforcers and by Congress.

On January 23rd, for the fourth consecutive year, The Heritage Foundation will host a one-day antitrust conference that focuses on major thematic developments in domestic and international antitrust policy.  The conference pulls together leaders of the antitrust bar and top current and former Federal Trade Commission (FTC) and Justice Department (DOJ) officials to provide an overarching perspective of antitrust trends that will affect the business community over the next year.

This year’s program, entitled “Trump Antitrust Policy after One Year,” will as usual feature an opening keynote address by former FTC Chairman and scholar extraordinaire Professor Bill Kovacic, followed by three separate panels covering FTC, DOJ, and international developments, respectively.  A light lunch will be served following the FTC panel.  The program will be held in the Allison Auditorium at The Heritage Foundation headquarters in the District of Columbia.

You can find out more about the program, and register to attend, here.  (If you cannot attend in person, you will be able to see it streamed online at

I hope to see you there!