Archives For antitrust

With the passing of Justice Ruth Bader Ginsburg, many have already noted her impact on the law as an advocate for gender equality and women’s rights, her importance as a role model for women, and her civility. Indeed, a key piece of her legacy is that she was a jurist in the classic sense of the word: she believed in using coherent legal reasoning to reach a result. And that meant Justice Ginsburg’s decisions sometimes cut against partisan political expectations. 

This is clearly demonstrated in our little corner of the law: RBG frequently voted in the majority on antitrust cases in a manner that—to populist leftwing observers—would be surprising. Moreover, she authored an important case on price discrimination that likewise cuts against the expectation of populist antitrust critics and demonstrates her nuanced jurisprudence.

RBG’s record on the Court shows a respect for the evolving nature of antitrust law

In the absence of written opinions of her own, it is difficult to discern what was actually in Justice Ginsburg’s mind as she encountered antitrust issues. But, her voting record represents at least a willingness to approach antitrust in an apolitical manner. 

Over the last several decades, Justice Ginsburg joined the Supreme Court majority in many cases dealing with a wide variety of antitrust issues, including the duty to deal doctrine, vertical restraints, joint ventures, and mergers. In many of these cases, RBG aligned herself with judgments of the type that the antitrust populists criticize.

The following are major consumer welfare standard cases that helped shape the current state of antitrust law in which she joined the majority or issued a concurrence: 

  • Verizon Commc’ns Inc. v. Law Offices of Curtis Trinko, LLP, 540 U.S. 398 (2004) (unanimous opinion heightening the standard for finding a duty to deal)
  • Pacific Bell Tel. Co v. linkLine Commc’ns, Inc.,  555 U.S. 438 (2009) (Justice Ginsburg joined the concurrence finding there was no “price squeeze” but suggesting the predatory pricing claim should be remanded)
  • Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., Inc., 549 U.S. 312 (2007) (unanimous opinion finding predatory buying claims are still subject to the dangerous probability of recoupment test from Brooke Group)
  • Apple, Inc. v. Robert Pepper, 139 S.Ct. 1514 (2019) (part of majority written by Justice Kavanaugh finding that iPhone owners were direct purchasers under Illinois Brick that may sue Apple for alleged monopolization)
  • State Oil Co. v. Khan, 522 U.S. 3 (1997) (unanimous opinion overturning per se treatment of vertical maximum price fixing under Albrecht and applying rule of reason standard)
  • Texaco Inc. v. Dagher, 547 U.S. 1 (2006) (unanimous opinion finding it is not per se illegal under §1 of the Sherman Act for a lawful, economically integrated joint venture to set the prices at which it sells its products)
  • Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006) (unanimous opinion finding a patent does not necessarily confer market power upon the patentee, in all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product)
  • U.S. v. Baker Hughes, Inc., 908 F. 2d 981 (D.C. Cir. 1990) (unanimous opinion written by then-Judge Clarence Thomas while both were on the D.C. Circuit of Appeals finding against the government’s argument that the defendant in a Section 7 merger challenge can rebut a prima facie case only by a clear showing that entry into the market by competitors would be quick and effective)

Even where she joined the dissent in antitrust cases, she did so within the ambit of the consumer welfare standard. Thus, while she was part of the dissent in cases like Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007), Bell Atlantic Corp v. Twombly, 550 U.S. 544 (2007), and Ohio v. American Express Co., 138 S.Ct. 2274 (2018), she still left a legacy of supporting modern antitrust jurisprudence. In those cases, RBG simply  had a different vision for how best to optimize consumer welfare. 

Justice Ginsburg’s Volvo Opinion

The 2006 decision Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc. was one of the few antitrust decisions authored by RBG and shows her appreciation for the consumer welfare standard. In particular, Justice Ginsburg affirmed the notion that antitrust law is designed to protect competition not competitors—a lesson that, as of late, needs to be refreshed. 

Volvo, a 7-2 decision, dealt with the Robinson-Patman Act’s prohibition on price discimination. Reeder-Simco, a retail car dealer that sold Volvos, alleged that Volvo Inc. was violating the Robinson-Patman Act by selling cars to them at different prices than to other Volvo dealers.

The Robinson-Patman Act is frequently cited by antitrust populists as a way to return antitrust law to its former glory. A main argument of Lina Khan’s Amazon’s Antitrust Paradox was that the Chicago School had distorted the law on vertical restraints generally, and price discrimination in particular. One source of this distortion in Khan’s opinion has been the Supreme Court’s mishandling of the Robinson-Patman Act.

Yet, in Volvo we see Justice Ginsburg wrestling with the Robinson-Patman Act in a way to give effect to the law as written, which may run counter to some of the contemporary populist impulse to revise the Court’s interpretation of antitrust laws. Justice Ginsburg, citing Brown & Williamson, first noted that: 

Mindful of the purposes of the Act and of the antitrust laws generally, we have explained that Robinson-Patman does not “ban all price differences charged to different purchasers of commodities of like grade and quality.”

Instead, the Robinson-Patman Act was aimed at a particular class of harms that Congress believed existed when large chain-stores were able to exert something like monopsony buying power. Moreover, Justice Ginsburg noted, the Act “proscribes ‘price discrimination only to the extent that it threatens to injure competition’[.]”

Under the Act, plaintiffs needed to demonstrate evidence of Volvo Inc. systematically treating plaintiffs as “disfavored” purchasers as against another set of “favored” purchasers. Instead, all plaintiffs could produce was anecdotal and inconsistent evidence of Volvo Inc. disfavoring them. Thus, the plaintiffs— and theoretically other similarly situated Volvo dealers— were in fact harmed in a sense by Volvo Inc. Yet, Justice Ginsburg was unwilling to rewrite the Act on Congress’s behalf to incorporate new harms later discovered (a fact which would not earn her accolades in populist circles these days). 

Instead, Justice Ginsburg wrote that:

Interbrand competition, our opinions affirm, is the “primary concern of antitrust law.”… The Robinson-Patman Act signals no large departure from that main concern. Even if the Act’s text could be construed in the manner urged by [plaintiffs], we would resist interpretation geared more to the protection of existing competitors than to the stimulation of competition. In the case before us, there is no evidence that any favored purchaser possesses market power, the allegedly favored purchasers are dealers with little resemblance to large independent department stores or chain operations, and the supplier’s selective price discounting fosters competition among suppliers of different brands… By declining to extend Robinson-Patman’s governance to such cases, we continue to construe the Act “consistently with broader policies of the antitrust laws.” Brooke Group, 509 U.S., at 220… (cautioning against Robinson-Patman constructions that “extend beyond the prohibitions of the Act and, in doing so, help give rise to a price uniformity and rigidity in open conflict with the purposes of other antitrust legislation”).

Thus, interested in the soundness of her jurisprudence in the face of a well-developed body of antitrust law, Justice Ginsburg chose to continue to develop that body of law rather than engage in judicial policymaking in favor of a sympathetic plaintiff. 

It must surely be tempting for a justice on the Court to adopt less principled approaches to the law in any given case, and it is equally as impressive that Justice Ginsburg consistently stuck to her principles. We can only hope her successor takes note of Justice Ginsburg’s example.

Apple’s legal team will be relieved that “you reap what you sow” is just a proverb. After a long-running antitrust battle against Qualcomm unsurprisingly ended in failure, Apple now faces antitrust accusations of its own (most notably from Epic Games). Somewhat paradoxically, this turn of events might cause Apple to see its previous defeat in a new light. Indeed, the well-established antitrust principles that scuppered Apple’s challenge against Qualcomm will now be the rock upon which it builds its legal defense.

But while Apple’s reversal of fortunes might seem anecdotal, it neatly illustrates a fundamental – and often overlooked – principle of antitrust policy: Antitrust law is about maximizing consumer welfare. Accordingly, the allocation of surplus between two companies is only incidentally relevant to antitrust proceedings, and it certainly is not a goal in and of itself. In other words, antitrust law is not about protecting David from Goliath.

Jockeying over the distribution of surplus

Or at least that is the theory. In practice, however, most antitrust cases are but small parts of much wider battles where corporations use courts and regulators in order to jockey for market position and/or tilt the distribution of surplus in their favor. The Microsoft competition suits brought by the DOJ and the European commission (in the EU and US) partly originated from complaints, and lobbying, by Sun Microsystems, Novell, and Netscape. Likewise, the European Commission’s case against Google was prompted by accusations from Microsoft and Oracle, among others. The European Intel case was initiated following a complaint by AMD. The list goes on.

The last couple of years have witnessed a proliferation of antitrust suits that are emblematic of this type of power tussle. For instance, Apple has been notoriously industrious in using the court system to lower the royalties that it pays to Qualcomm for LTE chips. One of the focal points of Apple’s discontent was Qualcomm’s policy of basing royalties on the end-price of devices (Qualcomm charged iPhone manufacturers a 5% royalty rate on their handset sales – and Apple received further rebates):

“The whole idea of a percentage of the cost of the phone didn’t make sense to us,” [Apple COO Jeff Williams] said. “It struck at our very core of fairness. At the time we were making something really really different.”

This pricing dispute not only gave rise to high-profile court cases, it also led Apple to lobby Standard Developing Organizations (“SDOs”) in a partly successful attempt to make them amend their patent policies, so as to prevent this type of pricing. 

However, in a highly ironic turn of events, Apple now finds itself on the receiving end of strikingly similar allegations. At issue is the 30% commission that Apple charges for in app purchases on the iPhone and iPad. These “high” commissions led several companies to lodge complaints with competition authorities (Spotify and Facebook, in the EU) and file antitrust suits against Apple (Epic Games, in the US).

Of course, these complaints are couched in more sophisticated, and antitrust-relevant, reasoning. But that doesn’t alter the fact that these disputes are ultimately driven by firms trying to tilt the allocation of surplus in their favor (for a more detailed explanation, see Apple and Qualcomm).

Pushback from courts: The Qualcomm case

Against this backdrop, a string of recent cases sends a clear message to would-be plaintiffs: antitrust courts will not be drawn into rent allocation disputes that have no bearing on consumer welfare. 

The best example of this judicial trend is Qualcomm’s victory before the United States Court of Appeal for the 9th Circuit. The case centered on the royalties that Qualcomm charged to OEMs for its Standard Essential Patents (SEPs). Both the district court and the FTC found that Qualcomm had deployed a series of tactics (rebates, refusals to deal, etc) that enabled it to circumvent its FRAND pledges. 

However, the Court of Appeal was not convinced. It failed to find any consumer harm, or recognizable antitrust infringement. Instead, it held that the dispute at hand was essentially a matter of contract law:

To the extent Qualcomm has breached any of its FRAND commitments, a conclusion we need not and do not reach, the remedy for such a breach lies in contract and patent law. 

This is not surprising. From the outset, numerous critics pointed that the case lied well beyond the narrow confines of antitrust law. The scathing dissenting statement written by Commissioner Maureen Olhaussen is revealing:

[I]n the Commission’s 2-1 decision to sue Qualcomm, I face an extraordinary situation: an enforcement action based on a flawed legal theory (including a standalone Section 5 count) that lacks economic and evidentiary support, that was brought on the eve of a new presidential administration, and that, by its mere issuance, will undermine U.S. intellectual property rights in Asia and worldwide. These extreme circumstances compel me to voice my objections. 

In reaching its conclusion, the Court notably rejected the notion that SEP royalties should be systematically based upon the “Smallest Saleable Patent Practicing Unit” (or SSPPU):

Even if we accept that the modem chip in a cellphone is the cellphone’s SSPPU, the district court’s analysis is still fundamentally flawed. No court has held that the SSPPU concept is a per se rule for “reasonable royalty” calculations; instead, the concept is used as a tool in jury cases to minimize potential jury confusion when the jury is weighing complex expert testimony about patent damages.

Similarly, it saw no objection to Qualcomm licensing its technology at the OEM level (rather than the component level):

Qualcomm’s rationale for “switching” to OEM-level licensing was not “to sacrifice short-term benefits in order to obtain higher profits in the long run from the exclusion of competition,” the second element of the Aspen Skiing exception. Aerotec Int’l, 836 F.3d at 1184 (internal quotation marks and citation omitted). Instead, Qualcomm responded to the change in patent-exhaustion law by choosing the path that was “far more lucrative,” both in the short term and the long term, regardless of any impacts on competition. 

Finally, the Court concluded that a firm breaching its FRAND pledges did not automatically amount to anticompetitive conduct: 

We decline to adopt a theory of antitrust liability that would presume anticompetitive conduct any time a company could not prove that the “fair value” of its SEP portfolios corresponds to the prices the market appears willing to pay for those SEPs in the form of licensing royalty rates.

Taken together, these findings paint a very clear picture. The Qualcomm Court repeatedly rejected the radical idea that US antitrust law should concern itself with the prices charged by monopolists — as opposed to practices that allow firms to illegally acquire or maintain a monopoly position. The words of Learned Hand and those of Antonin Scalia (respectively, below) loom large:

The successful competitor, having been urged to compete, must not be turned upon when he wins. 

And,

To safeguard the incentive to innovate, the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct.

Other courts (both in the US and abroad) have reached similar conclusions

For instance, a district court in Texas dismissed a suit brought by Continental Automotive Systems (which supplies electronic systems to the automotive industry) against a group of SEP holders. 

Continental challenged the patent holders’ decision to license their technology at the vehicle rather than component level (the allegation is very similar to the FTC’s complaint that Qualcomm licensed its SEPs at the OEM, rather than chipset level). However, following a forceful intervention by the DOJ, the Court ultimately held that the facts alleged by Continental were not indicative of antitrust injury. It thus dismissed the case.

Likewise, within weeks of the Qualcomm and Continental decisions, the UK Supreme court also ruled in favor of SEP holders. In its Unwired Planet ruling, the Court concluded that discriminatory licenses did not automatically infringe competition law (even though they might breach a firm’s contractual obligations):

[I]t cannot be said that there is any general presumption that differential pricing for licensees is problematic in terms of the public or private interests at stake.

In reaching this conclusion, the UK Supreme Court emphasized that the determination of whether licenses were FRAND, or not, was first and foremost a matter of contract law. In the case at hand, the most important guide to making this determination were the internal rules of the relevant SDO (as opposed to competition case law):

Since price discrimination is the norm as a matter of licensing practice and may promote objectives which the ETSI regime is intended to promote (such as innovation and consumer welfare), it would have required far clearer language in the ETSI FRAND undertaking to indicate an intention to impose the more strict, “hard-edged” non-discrimination obligation for which Huawei contends. Further, in view of the prevalence of competition laws in the major economies around the world, it is to be expected that any anti-competitive effects from differential pricing would be most appropriately addressed by those laws

All of this ultimately led the Court to rule in favor of Unwired Planet, thus dismissing Huawei’s claims that it had infringed competition law by breaching its FRAND pledges. 

In short, courts and antitrust authorities on both sides of the Atlantic have repeatedly, and unambiguously, concluded that pricing disputes (albeit in the specific context of technological standards) are generally a matter of contract law. Antitrust/competition law intercedes only when unfair/excessive/discriminatory prices are both caused by anticompetitive behavior and result in anticompetitive injury.

Apple’s Loss is… Apple’s gain.

Readers might wonder how the above cases relate to Apple’s app store. But, on closer inspection the parallels are numerous. As explained above, courts have repeatedly stressed that antitrust enforcement should not concern itself with the allocation of surplus between commercial partners. Yet that is precisely what Epic Game’s suit against Apple is all about.

Indeed, Epic’s central claim is not that it is somehow foreclosed from Apple’s App Store (for example, because Apple might have agreed to exclusively distribute the games of one of Epic’s rivals). Instead, all of its objections are down to the fact that it would like to access Apple’s store under more favorable terms:

Apple’s conduct denies developers the choice of how best to distribute their apps. Developers are barred from reaching over one billion iOS users unless they go through Apple’s App Store, and on Apple’s terms. […]

Thus, developers are dependent on Apple’s noblesse oblige, as Apple may deny access to the App Store, change the terms of access, or alter the tax it imposes on developers, all in its sole discretion and on the commercially devastating threat of the developer losing access to the entire iOS userbase. […]

By imposing its 30% tax, Apple necessarily forces developers to suffer lower profits, reduce the quantity or quality of their apps, raise prices to consumers, or some combination of the three.

And the parallels with the Qualcomm litigation do not stop there. Epic is effectively asking courts to make Apple monetize its platform at a different level than the one that it chose to maximize its profits (no more monetization at the app store level). Similarly, Epic Games omits any suggestion of profit sacrifice on the part of Apple — even though it is a critical element of most unilateral conduct theories of harm. Finally, Epic is challenging conduct that is both the industry norm and emerged in a highly competitive setting.

In short, all of Epic’s allegations are about monopoly prices, not monopoly maintenance or monopolization. Accordingly, just as the SEP cases discussed above were plainly beyond the outer bounds of antitrust enforcement (something that the DOJ repeatedly stressed with regard to the Qualcomm case), so too is the current wave of antitrust litigation against Apple. When all is said and done, Apple might thus be relieved that Qualcomm was victorious in their antitrust confrontation. Indeed, the legal principles that caused its demise against Qualcomm are precisely the ones that will, likely, enable it to prevail against Epic Games.

Germán Gutiérrez and Thomas Philippon have released a major rewrite of their paper comparing the U.S. and EU competitive environments. 

Although the NBER website provides an enticing title — “How European Markets Became Free: A Study of Institutional Drift” — the paper itself has a much more yawn-inducing title: “How EU Markets Became More Competitive Than US Markets: A Study of Institutional Drift.”

Having already critiqued the original paper at length (here and here), I wouldn’t normally take much interest in the do-over. However, in a recent episode of Tyler Cowen’s podcast, Jason Furman gave a shout out to Philippon’s work on increasing concentration. So, I thought it might be worth a review.

As with the original, the paper begins with a conclusion: The EU appears to be more competitive than the U.S. The authors then concoct a theory to explain their conclusion. The theory’s a bit janky, but it goes something like this:

  • Because of lobbying pressure and regulatory capture, an individual country will enforce competition policy at a suboptimal level.
  • Because of competing interests among different countries, a “supra-national” body will be more independent and better able to foster pro-competitive policies and to engage in more vigorous enforcement of competition policy.
  • The EU’s supra-national body and its Directorate-General for Competition is more independent than the U.S. Department of Justice and Federal Trade Commission.
  • Therefore, their model explains why the EU is more competitive than the U.S. Q.E.D.

If you’re looking for what this has to do with “institutional drift,” don’t bother. The term only shows up in the title.

The original paper provided evidence from 12 separate “markets,” that they say demonstrated their conclusion about EU vs. U.S. competitiveness. These weren’t really “markets” in the competition policy sense, they were just broad industry categories, such as health, information, trade, and professional services (actually “other business sector services”). 

As pointed out in one of my earlier critiques, In all but one of these industries, the 8-firm concentration ratios for the U.S. and the EU are below 40 percent and the HHI measures reported in the original paper are at levels that most observers would presume to be competitive. 

Sending their original markets to drift in the appendices, Gutiérrez and Philippon’s revised paper focuses its attention on two markets — telecommunications and airlines — to highlight their claims that EU markets are more competitive than the U.S. First, telecoms:

To be more concrete, consider the Telecom industry and the entry of the French Telecom company Free Mobile. Until 2011, the French mobile industry was an oligopoly with three large historical incumbents and weak competition. … Free obtained its 4G license in 2011 and entered the market with a plan of unlimited talk, messaging and data for €20. Within six months, the incumbents Orange, SFR and Bouygues had reacted by launching their own discount brands and by offering €20 contracts as well. … The relative price decline was 40%: France went from being 15% more expensive than the US [in 2011] to being 25% cheaper in about two years [in 2013].

While this is an interesting story about how entry can increase competition, the story of a single firm entering a market in a single country is hardly evidence that the EU as a whole is more competitive than the U.S.

What Gutiérrez and Philippon don’t report is that from 2013 to 2019, prices declined by 12% in the U.S. and only 8% in France. In the EU as a whole, prices decreased by only 5% over the years 2013-2019.

Gutiérrez and Philippon’s passenger airline story is even weaker. Because airline prices don’t fit their narrative, they argue that increasing airline profits are evidence that the U.S. is less competitive than the EU. 

The picture above is from Figure 5 of their paper (“Air Transportation Profits and Concentration, EU vs US”). They claim that the “rise in US concentration and profits aligns closely with a controversial merger wave,” with the vertical line in the figure marking the Delta-Northwest merger.

Sure, profitability among U.S. firms increased. But, before the “merger wave,” profits were negative. Perhaps predatory pricing is pro-competitive after all.

Where Gutiérrez and Philippon really fumble is with airline pricing. Since the merger wave that pulled the U.S. airline industry out of insolvency, ticket prices (as measured by the Consumer Price Index), have decreased by 6%. In France, prices increased by 4% and in the EU, prices increased by 30%. 

The paper relies more heavily on eyeballing graphs than statistical analysis, but something about Table 2 caught my attention — the R-squared statistics. First, they’re all over the place. But, look at column (1): A perfect 1.00 R-squared. Could it be that Gutiérrez and Philippon’s statistical model has (almost) as many parameters as variables?

Notice that all the regressions with an R-squared of 0.9 or higher include country fixed effects. The two regressions with R-squareds of 0.95 and 0.96 also include country-industry fixed effects. It’s very possible that the regressions results are driven entirely by idiosyncratic differences among countries and industries. 

Gutiérrez and Philippon provide no interpretation for their results in Table 2, but it seems to work like this, using column (1): A 10% increase in the 4-firm concentration ratio (which is different from a 10 percentage point increase), would be associated with a 1.8% increase in prices four years later. So, an increase in CR4 from 20% to 22% (or an increase from 60% to 66%) would be associated with a 1.8% increase in prices over four years, or about 0.4% a year. On the one hand, I just don’t buy it. On the other hand, the effect is so small that it seems economically insignificant. 

I’m sure Gutiérrez and Philippon have put a lot of time into this paper and its revision. But there’s an old saying that the best thing about banging your head against the wall is that it feels so good when it stops. Perhaps, it’s time to stop with this paper and let it “drift” into obscurity.

In the latest congressional hearing, purportedly analyzing Google’s “stacking the deck” in the online advertising marketplace, much of the opening statement and questioning by Senator Mike Lee and later questioning by Senator Josh Hawley focused on an episode of alleged anti-conservative bias by Google in threatening to demonetize The Federalist, a conservative publisher, unless they exercised a greater degree of control over its comments section. The senators connected this to Google’s “dominance,” arguing that it is only because Google’s ad services are essential that Google can dictate terms to a conservative website. A similar impulse motivates Section 230 reform efforts as well: allegedly anti-conservative online platforms wield their dominance to censor conservative speech, either through deplatforming or demonetization.

Before even getting into the analysis of how to incorporate political bias into antitrust analysis, though, it should be noted that there likely is no viable antitrust remedy. Even aside from the Section 230 debate, online platforms like Google are First Amendment speakers who have editorial discretion over their sites and apps, much like newspapers. An antitrust remedy compelling these companies to carry speech they disagree with would almost certainly violate the First Amendment.

But even aside from the First Amendment aspect of this debate, there is no easy way to incorporate concerns about political bias into antitrust. Perhaps the best way to understand this argument in the antitrust sense is as a non-price effects analysis. 

Political bias could be seen by end consumers as an important aspect of product quality. Conservatives have made the case that not only Google, but also Facebook and Twitter, have discriminated against conservative voices. The argument would then follow that consumer welfare is harmed when these dominant platforms leverage their control of the social media marketplace into the marketplace of ideas by censoring voices with whom they disagree. 

While this has theoretical plausibility, there are real practical difficulties. As Geoffrey Manne and I have written previously, in the context of incorporating privacy into antitrust analysis:

The Horizontal Merger Guidelines have long recognized that anticompetitive effects may “be manifested in non-price terms and conditions that adversely affect customers.” But this notion, while largely unobjectionable in the abstract, still presents significant problems in actual application. 

First, product quality effects can be extremely difficult to distinguish from price effects. Quality-adjusted price is usually the touchstone by which antitrust regulators assess prices for competitive effects analysis. Disentangling (allegedly) anticompetitive quality effects from simultaneous (neutral or pro-competitive) price effects is an imprecise exercise, at best. For this reason, proving a product-quality case alone is very difficult and requires connecting the degradation of a particular element of product quality to a net gain in advantage for the monopolist. 

Second, invariably product quality can be measured on more than one dimension. For instance, product quality could include both function and aesthetics: A watch’s quality lies in both its ability to tell time as well as how nice it looks on your wrist. A non-price effects analysis involving product quality across multiple dimensions becomes exceedingly difficult if there is a tradeoff in consumer welfare between the dimensions. Thus, for example, a smaller watch battery may improve its aesthetics, but also reduce its reliability. Any such analysis would necessarily involve a complex and imprecise comparison of the relative magnitudes of harm/benefit to consumers who prefer one type of quality to another.

Just as with privacy and other product qualities, the analysis becomes increasingly complex first when tradeoffs between price and quality are introduced, and then even more so when tradeoffs between what different consumer groups perceive as quality is added. In fact, it is more complex than privacy. All but the most exhibitionistic would prefer more to less privacy, all other things being equal. But with political media consumption, most would prefer to have more of what they want to read available, even if it comes at the expense of what others may want. There is no easy way to understand what consumer welfare means in a situation where one group’s preferences need to come at the expense of another’s in moderation decisions.

Consider the case of The Federalist again. The allegation is that Google is imposing their anticonservative bias by “forcing” the website to clean up its comments section. The argument is that since The Federalist needs Google’s advertising money, it must play by Google’s rules. And since it did so, there is now one less avenue for conservative speech.

What this argument misses is the balance Google and other online services must strike as multi-sided platforms. The goal is to connect advertisers on one side of the platform, to the users on the other. If a site wants to take advantage of the ad network, it seems inevitable that intermediaries like Google will need to create rules about what can and can’t be shown or they run the risk of losing advertisers who don’t want to be associated with certain speech or conduct. For instance, most companies don’t want to be associated with racist commentary. Thus, they will take great pains to make sure they don’t sponsor or place ads in venues associated with racism. Online platforms connecting advertisers to potential consumers must take that into consideration.

Users, like those who frequent The Federalist, have unpriced access to content across those sites and apps which are part of ad networks like Google’s. Other models, like paid subscriptions (which The Federalist also has available), are also possible. But it isn’t clear that conservative voices or conservative consumers have been harmed overall by the option of unpriced access on one side of the platform, with advertisers paying on the other side. If anything, it seems the opposite is the case since conservatives long complained about legacy media having a bias and lauded the Internet as an opportunity to gain a foothold in the marketplace of ideas.

Online platforms like Google must balance the interests of users from across the political spectrum. If their moderation practices are too politically biased in one direction or another, users could switch to another online platform with one click or swipe. Assuming online platforms wish to maximize revenue, they will have a strong incentive to limit political bias from its moderation practices. The ease of switching to another platform which markets itself as more free speech-friendly, like Parler, shows entrepreneurs can take advantage of market opportunities if Google and other online platforms go too far with political bias. 

While one could perhaps argue that the major online platforms are colluding to keep out conservative voices, this is difficult to square with the different moderation practices each employs, as well as the data that suggests conservative voices are consistently among the most shared on Facebook

Antitrust is not a cure-all law. Conservatives who normally understand this need to reconsider whether antitrust is really well-suited for litigating concerns about anti-conservative bias online. 

This week the Senate will hold a hearing into potential anticompetitive conduct by Google in its display advertising business—the “stack” of products that it offers to advertisers seeking to place display ads on third-party websites. It is also widely reported that the Department of Justice is preparing a lawsuit against Google that will likely include allegations of anticompetitive behavior in this market, and is likely to be joined by a number of state attorneys general in that lawsuit. Meanwhile, several papers have been published detailing these allegations

This aspect of digital advertising can be incredibly complex and difficult to understand. Here we explain how display advertising fits in the broader digital advertising market, describe how display advertising works, consider the main allegations against Google, and explain why Google’s critics are misguided to focus on antitrust as a solution to alleged problems in the market (even if those allegations turn out to be correct).

Display advertising in context

Over the past decade, the price of advertising has fallen steadily while output has risen. Spending on digital advertising in the US grew from $26 billion in 2010 to nearly $130 billion in 2019, an average increase of 20% a year. Over the same period the Producer Price Index for Internet advertising sales declined by nearly 40%. The rising spending in the face of falling prices indicates the number of ads bought and sold increased by approximately 27% a year. Since 2000, advertising spending has been falling as a share of GDP, with online advertising growing as a share of that. The combination of increasing quantity, decreasing cost, and increasing total revenues are consistent with a growing and increasingly competitive market.

Display advertising on third-party websites is only a small subsection of the digital advertising market, comprising approximately 15-20% of digital advertising spending in the US. The rest of the digital advertising market is made up of ads on search results pages on sites like Google, Amazon and Kayak, on people’s Instagram and Facebook feeds, listings on sites like Zillow (for houses) or Craigslist, referral fees paid to price comparison websites for things like health insurance, audio and visual ads on services like Spotify and Hulu, and sponsored content from influencers and bloggers who will promote products to their fans. 

And digital advertising itself is only one of many channels through which companies can market their products. About 53% of total advertising spending in the United States goes on digital channels, with 30% going on TV advertising and the rest on things like radio ads, billboards and other more traditional forms of advertising. A few people still even read physical newspapers and the ads they contain, although physical newspapers’ bigger money makers have traditionally been classified ads, which have been replaced by less costly and more effective internet classifieds, such as those offered by Craigslist, or targeted ads on Google Maps or Facebook.

Indeed, it should be noted that advertising itself is only part of the larger marketing market of which non-advertising marketing communication—e.g., events, sales promotion, direct marketing, telemarketing, product placement—is as big a part as is advertising (each is roughly $500bn globally); it just hasn’t been as thoroughly disrupted by the Internet yet. But it is a mistake to assume that digital advertising is not a part of this broader market. And of that $1tr global market, Internet advertising in total occupies only about 18%—and thus display advertising only about 3%.

Ad placement is only one part of the cost of digital advertising. An advertiser trying to persuade people to buy its product must also do market research and analytics to find out who its target market is and what they want. Moreover, there are the costs of designing and managing a marketing campaign and additional costs to analyze and evaluate the effectiveness of the campaign. 

Nevertheless, one of the most straightforward ways to earn money from a website is to show ads to readers alongside the publisher’s content. To satisfy publishers’ demand for advertising revenues, many services have arisen to automate and simplify the placement of and payment for ad space on publishers’ websites. Google plays a large role in providing these services—what is referred to as “open display” advertising. And it is Google’s substantial role in this space that has sparked speculation and concern among antitrust watchdogs and enforcement authorities.

Before delving into the open display advertising market, a quick note about terms. In these discussions, “advertisers” are businesses that are trying to sell people stuff. Advertisers include large firms such as Best Buy and Disney and small businesses like the local plumber or financial adviser. “Publishers” are websites that carry those ads, and publish content that users want to read. Note that the term “publisher” refers to all websites regardless of the things they’re carrying: a blog about the best way to clean stains out of household appliances is a “publisher” just as much as the New York Times is. 

Under this broad definition, Facebook, Instagram, and YouTube are also considered publishers. In their role as publishers, they have a common goal: to provide content that attracts users to their pages who will act on the advertising displayed. “Users” are you and me—the people who want to read publishers’ content, and to whom advertisers want to show ads. Finally, “intermediaries” are the digital businesses, like Google, that sit in between the advertisers and the publishers, allowing them to do business with each other without ever meeting or speaking.

The display advertising market

If you’re an advertiser, display advertising works like this: your company—one that sells shoes, let’s say—wants to reach a certain kind of person and tell her about the company’s shoes. These shoes are comfortable, stylish, and inexpensive. You use a tool like Google Ads (or, if it’s a big company and you want a more expansive campaign over which you have more control, Google Marketing Platform) to design and upload an ad, and tell Google about the people you want to read—their age and location, say, and/or characterizations of their past browsing and searching habits (“interested in sports”). 

Using that information, Google finds ad space on websites whose audiences match the people you want to target. This ad space is auctioned off to the highest bidder among the range of companies vying, with your shoe company, to reach users matching the characteristics of the website’s users. Thanks to tracking data, it doesn’t just have to be sports-relevant websites: as a user browses sports-related sites on the web, her browser picks up files (cookies) that will tag her as someone potentially interested in sports apparel for targeting later.

So a user might look at a sports website and then later go to a recipe blog, and there receive the shoes ad on the basis of her earlier browsing. You, the shoe seller, hope that she will either click through and buy (or at least consider buying) the shoes when she sees those ads, but one of the benefits of display advertising over search advertising is that—as with TV ads or billboard ads—just seeing the ad will make her aware of the product and potentially more likely to buy it later. Advertisers thus sometimes pay on the basis of clicks, sometimes on the basis of views, and sometimes on the basis of conversion (when a consumer takes an action of some sort, such as making a purchase or filling out a form).

That’s the advertiser’s perspective. From the publisher’s perspective—the owner of that recipe blog, let’s say—you want to auction ad space off to advertisers like that shoe company. In that case, you go to an ad server—Google’s product is called AdSense—give them a little bit of information about your site, and add some html code to your website. These ad servers gather information about your content (e.g., by looking at keywords you use) and your readers (e.g., by looking at what websites they’ve used in the past to make guesses about what they’ll be interested in) and places relevant ads next to and among your content. If they click, lucky you—you’ll get paid a few cents or dollars. 

Apart from privacy concerns about the tracking of users, the really tricky and controversial part here concerns the way scarce advertising space is allocated. Most of the time, it’s done through auctions that happen in real time: each time a user loads a website, an auction is held in a fraction of a second to decide which advertiser gets to display an ad. The longer this process takes, the slower pages load and the more likely users are to get frustrated and go somewhere else.

As well as the service hosting the auction, there are lots of little functions that different companies perform that make the auction and placement process smoother. Some fear that by offering a very popular product integrated end to end, Google’s “stack” of advertising products can bias auctions in favour of its own products. There’s also speculation that Google’s product is so tightly integrated and so effective at using data to match users and advertisers that it is not viable for smaller rivals to compete.

We’ll discuss this speculation and fear in more detail below. But it’s worth bearing in mind that this kind of real-time bidding for ad placement was not always the norm, and is not the only way that websites display ads to their users even today. Big advertisers and websites often deal with each other directly. As with, say, TV advertising, large companies advertising often have a good idea about the people they want to reach. And big publishers (like popular news websites) often have a good idea about who their readers are. For example, big brands often want to push a message to a large number of people across different customer types as part of a broader ad campaign. 

Of these kinds of direct sales, sometimes the space is bought outright, in advance, and reserved for those advertisers. In most cases, direct sales are run through limited, intermediated auction services that are not open to the general market. Put together, these kinds of direct ad buys account for close to 70% of total US display advertising spending. The remainder—the stuff that’s left over after these kinds of sales have been done—is typically sold through the real-time, open display auctions described above.

Different adtech products compete on their ability to target customers effectively, to serve ads quickly (since any delay in the auction and ad placement process slows down page load times for users), and to do so inexpensively. All else equal (including the effectiveness of the ad placement), advertisers want to pay the lowest possible price to place an ad. Similarly, publishers want to receive the highest possible price to display an ad. As a result, both advertisers and publishers have a keen interest in reducing the intermediary’s “take” of the ad spending.

This is all a simplification of how the market works. There is not one single auction house for ad space—in practice, many advertisers and publishers end up having to use lots of different auctions to find the best price. As the market evolved to reach this state from the early days of direct ad buys, new functions that added efficiency to the market emerged. 

In the early years of ad display auctions, individual processes in the stack were performed by numerous competing companies. Through a process of “vertical integration” some companies, such as Google, brought these different processes under the same roof, with the expectation that integration would streamline the stack and make the selling and placement of ads more efficient and effective. The process of vertical integration in pursuit of efficiency has led to a more consolidated market in which Google is the largest player, offering simple, integrated ad buying products to advertisers and ad selling products to publishers. 

Google is by no means the only integrated adtech service provider, however: Facebook, Amazon, Verizon, AT&T/Xandr, theTradeDesk, LumenAd, Taboola and others also provide end-to-end adtech services. But, in the market for open auction placement on third-party websites, Google is the biggest.

The cases against Google

The UK’s Competition and Markets Authority (CMA) carried out a formal study into the digital advertising market between 2019 and 2020, issuing its final report in July of this year. Although also encompassing Google’s Search advertising business and Facebook’s display advertising business (both of which relate to ads on those companies “owned and operated” websites and apps), the CMA study involved the most detailed independent review of Google’s open display advertising business to date. 

That study did not lead to any competition enforcement proceedings against Google—the CMA concluded, in other words, that Google had not broken UK competition law—but it did conclude that Google’s vertically integrated products led to conflicts of interest that could lead it to behaving in ways that did not benefit the advertisers and publishers that use it. One example was Google’s withholding of certain data from publishers that would make it easier for them to use other ad selling products; another was the practice of setting price floors that allegedly led advertisers to pay more than they would otherwise.

Instead the CMA recommended the setting up of a “Digital Markets Unit” (DMU) that could regulate digital markets in general, and a code of conduct for Google and Facebook (and perhaps other large tech platforms) intended to govern their dealings with smaller customers.

The CMA’s analysis is flawed, however. For instance, it makes big assumptions about the dependency of advertisers on display advertising, largely assuming that they would not switch to other forms of advertising if prices rose, and it is light on economics. But factually it is the most comprehensively researched investigation into digital advertising yet published.

Piggybacking on the CMA’s research, and mounting perhaps the strongest attack on Google’s adtech offerings to date, was a paper released just prior to the CMA’s final report called “Roadmap for a Digital Advertising Monopolization Case Against Google”, by Yale economist Fiona Scott Morton and Omidyar Network lawyer David Dinielli. Dinielli will testify before the Senate committee.

While the Scott Morton and Dinielli paper is extremely broad, it also suffers from a number of problems. 

One, because it was released before the CMA’s final report, it is largely based on the interim report released months earlier by the CMA, halfway through the market study in December 2019. This means that several of its claims are out of date. For example, it makes much of the possibility raised by the CMA in its interim report that Google may take a larger cut of advertising spending than its competitors, and claims made in another report that Google introduces “hidden” fees that increases the overall cut it takes from ad auctions. 

But in the final report, after further investigation, the CMA concludes that this is not the case. In the final report, the CMA describes its analysis of all Google Ad Manager open auctions related to UK web traffic during the period between 8–14 March 2020 (involving billions of auctions). This, according to the CMA, allowed it to observe any possible “hidden” fees as well. The CMA concludes:

Our analysis found that, in transactions where both Google Ads and Ad Manager (AdX) are used, Google’s overall take rate is approximately 30% of advertisers’ spend. This is broadly in line with (or slightly lower than) our aggregate market-wide fee estimate outlined above. We also calculated the margin between the winning bid and the second highest bid in AdX for Google and non-Google DSPs, to test whether Google was systematically able to win with a lower margin over the second highest bid (which might have indicated that they were able to use their data advantage to extract additional hidden fees). We found that Google’s average winning margin was similar to that of non-Google DSPs. Overall, this evidence does not indicate that Google is currently extracting significant hidden fees. As noted below, however, it retains the ability and incentive to do so. (p. 275, emphasis added)

Scott Morton and Dinielli also misquote and/or misunderstand important sections of the CMA interim report as relating to display advertising when, in fact, they relate to search. For example, Scott Morton and Dinielli write that the “CMA concluded that Google has nearly insurmountable advantages in access to location data, due to the location information [uniquely available to it from other sources].” (p. 15). The CMA never makes any claim of “insurmountable advantage,” however. Rather, to support the claim, Scott Morton and Dinielli cite to a portion of the CMA interim report recounting a suggestion made by Microsoft regarding the “critical” value of location data in providing relevant advertising. 

But that portion of the report, as well as the suggestion made by Microsoft, is about search advertising. While location data may also be valuable for display advertising, it is not clear that the GPS-level data that is so valuable in providing mobile search ad listings (for a nearby cafe or restaurant, say) is particularly useful for display advertising, which may be just as well-targeted by less granular, city- or county-level location data, which is readily available from a number of sources. In any case, Scott Morton and Dinielli are simply wrong to use a suggestion offered by Microsoft relating to search advertising to demonstrate the veracity of an assertion about a conclusion drawn by the CMA regarding display advertising. 

Scott Morton and Dinielli also confusingly word their own judgements about Google’s conduct in ways that could be misinterpreted as conclusions by the CMA:

The CMA reports that Google has implemented an anticompetitive sales strategy on the publisher ad server end of the intermediation chain. Specifically, after purchasing DoubleClick, which became its publisher ad server, Google apparently lowered its prices to publishers by a factor of ten, at least according to one publisher’s account related to the CMA. (p. 20)

In fact, the CMA does not conclude that Google lowering its prices was an “anticompetitive sales strategy”—it does not use these words at all—and what Scott Morton and Dinielli are referring to is a claim by a rival ad server business, Smart, that Google cutting its prices after acquiring Doubleclick led to Google expanding its market share. Apart from the misleading wording, it is unclear why a competition authority should consider it to be “anticompetitive” when prices are falling and kept low, and—as Smart reported to the CMA—its competitor’s response is to enhance its own offering. 

The case that remains

Stripping away the elements of Scott Morton and Dinielli’s case that seem unsubstantiated by a more careful reading of the CMA reports, and with the benefit of the findings in the CMA’s final report, we are left with a case that argues that Google self-preferences to an unreasonable extent, giving itself a product that is as successful as it is in display advertising only because of Google’s unique ability to gain advantage from its other products that have little to do with display advertising. Because of this self-preferencing, they might argue, innovative new entrants cannot compete on an equal footing, so the market loses out on incremental competition because of the advantages Google gets from being the world’s biggest search company, owning YouTube, running Google Maps and Google Cloud, and so on. 

The most significant examples of this are Google’s use of data from other products—like location data from Maps or viewing history from YouTube—to target ads more effectively; its ability to enable advertisers placing search ads to easily place display ads through the same interface; its introduction of faster and more efficient auction processes that sidestep the existing tools developed by other third-party ad exchanges; and its design of its own tool (“open bidding”) for aggregating auction bids for advertising space to compete with (rather than incorporate) an alternative tool (“header bidding”) that is arguably faster, but costs more money to use.

These allegations require detailed consideration, and in a future paper we will attempt to assess them in detail. But in thinking about them now it may be useful to consider the remedies that could be imposed to address them, assuming they do diminish the ability of rivals to compete with Google: what possible interventions we could make in order to make the market work better for advertisers, publishers, and users. 

We can think of remedies as falling into two broad buckets: remedies that stop Google from doing things that improve the quality of its own offerings, thus making it harder for others to keep up; and remedies that require it to help rivals improve their products in ways otherwise accessible only to Google (e.g., by making Google’s products interoperable with third-party services) without inherently diminishing the quality of Google’s own products.

The first camp of these, what we might call “status quo minus,” includes rules banning Google from using data from its other products or offering single order forms for advertisers, or, in the extreme, a structural remedy that “breaks up” Google by either forcing it to sell off its display ad business altogether or to sell off elements of it. 

What is striking about these kinds of interventions is that all of them “work” by making Google worse for those that use it. Restrictions on Google’s ability to use data from other products, for example, will make its service more expensive and less effective for those who use it. Ads will be less well-targeted and therefore less effective. This will lead to lower bids from advertisers. Lower ad prices will be transmitted through the auction process to produce lower payments for publishers. Reduced publisher revenues will mean some content providers exit. Users will thus be confronted with less available content and ads that are less relevant to them and thus, presumably, more annoying. In other words: No one will be better off, and most likely everyone will be worse off.

The reason a “single order form” helps Google is that it is useful to advertisers, the same way it’s useful to be able to buy all your groceries at one store instead of lots of different ones. Similarly, vertical integration in the “ad stack” allows for a faster, cheaper, and simpler product for users on all sides of the market. A different kind of integration that has been criticized by others, where third-party intermediaries can bid more quickly if they host on Google Cloud, benefits publishers and users because it speeds up auction time, allowing websites to load faster. So does Google’s unified alternative to “header bidding,” giving a speed boost that is apparently valuable enough to publishers that they will pay for it.

So who would benefit from stopping Google from doing these things, or even forcing Google to sell its operations in this area? Not advertisers or publishers. Maybe Google’s rival ad intermediaries would; presumably, artificially hamstringing Google’s products would make it easier for them to compete with Google. But if so, it’s difficult to see how this would be an overall improvement. It is even harder to see how this would improve the competitive process—the very goal of antitrust. Rather, any increase in the competitiveness of rivals would result not from making their products better, but from making Google’s product worse. That is a weakening of competition, not its promotion. 

On the other hand, interventions that aim to make Google’s products more interoperable at least do not fall prey to this problem. Such “status quo plus” interventions would aim to take the benefits of Google’s products and innovations and allow more companies to use them to improve their own competing products. Not surprisingly, such interventions would be more in line with the conclusions the CMA came to than the divestitures and operating restrictions proposed by Scott Morton and Dinielli, as well as (reportedly) state attorneys general considering a case against Google.

But mandated interoperability raises a host of different concerns: extensive and uncertain rulemaking, ongoing regulatory oversight, and, likely, price controls, all of which would limit Google’s ability to experiment with and improve its products. The history of such mandated duties to deal or compulsory licenses is a troubled one, at best. But even if, for the sake of argument, we concluded that these kinds of remedies were desirable, they are difficult to impose via an antitrust lawsuit of the kind that the Department of Justice is expected to launch. Most importantly, if the conclusion of Google’s critics is that Google’s main offense is offering a product that is just too good to compete with without regulating it like a utility, with all the costs to innovation that that would entail, maybe we ought to think twice about whether an antitrust intervention is really worth it at all.

Speaking about his new book in a ProMarket interview, David Dayen inadvertently captures what is perhaps the essential disconnect between antitrust reformers (populists, neo-Brandeisians, hipsters, whatever you may call them) and those of us who are more comfortable with the antitrust status quo (whatever you may call us). He says: “The antitrust doctrine that we’ve seen over the last 40 years simply does not match the lived experience of people.”

Narratives of Consumer Experience of Markets

This emphasis on “lived experience” runs through Dayen’s antitrust perspective. Citing to Hal Singer’s review of the book, the interview notes that “the heart of Dayen’s book is the personal accounts of ordinary Americans—airline passengers, hospital patients, farmers, and small business owners—attempting to achieve a slice of the American dream and facing insurmountable barriers in the form of unaccountable private monopolies.” As Singer notes in his review, “Dayen’s personalized storytelling, free of any stodgy regression analysis, is more likely to move policymakers” than are traditional economic arguments.

Dayen’s focus on individual narratives — of the consumer’s lived experience — is fundamentally different than the traditional antitrust economist’s perspective on competition and the market. It is worth exploring the differences between the two. The basic argument that I make below is that Dayen is right but also that he misunderstands the purpose of competition in a capitalist economy. A robustly competitive market is a brutal rat race that places each individual on an accelerating treadmill. There is no satiation or satisfaction for the individual consumer in these markets. But it is this very lack of satisfaction, this endless thirst for more, that makes competitive markets so powerful, and ultimately beneficial, for consumers. 

This is the fundamental challenge and paradox of capitalism. Satisfaction requires perspective that most consumers often don’t feel, and that many consumers never will feel. It requires the ability to step off that treadmill occasionally and to look how far society and individual welfare has come, even if individually one feels like they have not moved at all. It requires recognizing that the alternative to an uncomfortable flight to visit family isn’t a comfortable one, but an unaffordable one; that the alternative to low cost, processed foods, isn’t abundant higher-quality food but greater poverty for those who already can least afford food; that the alternative to a startup being beholden to Google’s and Amazon’s terms of service isn’t a market in which they have boundless access to these platforms’ infrastructures, but one in which each startup needs to entirely engineer its own infrastructure. In all of these cases, the fundamental tradeoff is between having something that is less perfect than an imagined ideal of it, and not having it at all

What Dayen refers to as consumers’ “lived experience” is really their “perceived experience.” This is important to how markets work. Competition is driven by consumers’ perception that things could be better (and by entrepreneurs’ perception that they can make it so). This perception is what keeps us on the treadmill. Consumers don’t look to their past generations and say “wow, by nearly every measure my life can be better than theirs with less effort!” They focus on what they don’t have yet, on the seemingly better lives of their contemporaries.

This description of markets may sound grotesquely dehumanizing. To the extent that it really is, this is because we live in a world of scarcity. There will always be tradeoffs and in a literally real way no consumer will ever have everything that she needs, let alone that she wants. 

On the flip side, this is what drives markets to make consumers better off. Consumers’ wants drive producers’ factories and innovators’ minds. There is no supply curve without a demand curve. And consumers are able to satisfy their own needs by becoming producers who work to satisfy the wants and needs of others. 

A Fair Question: Are Markets Worth It?

Dayen’s perspective on this description of markets, shared with his fellow reform-minded anti-antitrust crusaders, is that the typical consumers’ perceived experience of the market demonstrates that markets don’t work — that they have been captured by monopolists seeking to extract every ounce of revenue from each individual consumer. But this is not a story of monopolies. It is more plainly the story of markets. What Dayen identifies as a problem with the markets really is just the markets working as they are supposed to.

If this is just how markets work, it is fair to ask whether they are worth it. Importantly, those of us who answer “yes” need not be blind to or dismissive of concerns such as Dayen’s — to the concerns of the typical consumer. Economists have long recognized that capitalist markets are about allocative efficiency, not distributive efficiency — about making society as a whole as wealthy as possible but not about making sure that that wealth is fairly distributed. 

The antitrust reform movement is driven by advocates who long for a world in which everyone is poorer but feels more equal, as opposed to what they perceive as a world in which a few monopolists are extremely wealthy and everyone else feels poor. Their perception of this as the but-for world is not unreasonable, but it is also not accurate. The better world is the one with thriving, prosperous, markets,in which consumers broadly feel that they share in this prosperity. It may be the case that such a world has some oligopolies and even monopolies — that is what economic efficiency sometimes looks like. 

But those firms’ prosperity need not be adverse to consumers’ experience of the market. The challenging question is how we achieve this outcome. But that is a question of politics and macroeconomic policy, and of corporate social policy. It is a question of national identity, whether consumers’ perception of the economic treadmill can pivot from one of perceived futility to one of recognizing their lived contributions to society. It is one that antitrust law as it exists today contributes to answering, but not one that antitrust law on its own can ever answer.

On the other hand, were we to follow the populists’ lead and turn antitrust into a remedy for the perceived maladies of the market, we would risk the engine that improves consumers’ actual lived experience. The alternative to an antitrust driven by economic analysis and that errs on the side of not disrupting markets in favor of perceived injuries is an antitrust in which markets are beholden to the whims of politicians and enforcement officials. This is a world in which litigation is used by politicians to make it appear they are delivering on impossible promises, in which litigation is used to displace blame for politicians’ policy failures, in which litigation is used to distract from socio-political events entirely unrelated to the market. 

Concerns such as Dayen’s are timeless and not unreasonable. But the reflexive action is not the answer to such concerns. Rather, the response always must be to ask “opposed to what?” What is the but-for world? Here, Dayen and his peers suffer both Type I and Type II errors. They misdiagnose antitrust and non-competitive markets as the cause of their perceived problems. And they are overly confident in their proposed solutions to those problems, not recognizing the real harms that their proposed politicization of antitrust and markets poses.

Much has already been said about the twin antitrust suits filed by Epic Games against Apple and Google. For those who are not familiar with the cases, the game developer – most famous for its hit title Fortnite and the “Unreal Engine” that underpins much of the game (and movie) industry – is complaining that Apple and Google are thwarting competition from rival app stores and in-app payment processors. 

Supporters have been quick to see in these suits a long-overdue challenge against the 30% commissions that Apple and Google charge. Some have even portrayed Epic as a modern-day Robin Hood, leading the fight against Big Tech to the benefit of small app developers and consumers alike. Epic itself has been keen to stoke this image, comparing its litigation to a fight for basic freedoms in the face of Big Brother:

However, upon closer inspection, cracks rapidly appear in this rosy picture. What is left is a company partaking in blatant rent-seeking that threatens to harm the sprawling ecosystems that have emerged around both Apple and Google’s app stores.

Two issues are particularly salient. First, Epic is trying to protect its own interests at the expense of the broader industry. If successful, its suit would merely lead to alternative revenue schemes that – although more beneficial to itself – would leave smaller developers to shoulder higher fees. Second, the fees that Epic portrays as extortionate were in fact key to the emergence of mobile gaming.

Epic’s utopia is not an equilibrium

Central to Epic’s claims is the idea that both Apple and Google: (i) thwart competition from rival app stores, and implement a series of measures that prevent developers from reaching gamers through alternative means (such as pre-installing apps, or sideloading them in the case of Apple’s platforms); and (ii) tie their proprietary payment processing services to their app stores. According to Epic, this ultimately enables both Apple and Google to extract “extortionate” commissions (30%) from app developers.

But Epic’s whole case is based on the unrealistic assumption that both Apple and Google will sit idly by while rival play stores and payment systems take a free-ride on the vast investments they have ploughed into their respective smartphone platforms. In other words, removing Apple and Google’s ability to charge commissions on in-app purchases does not prevent them from monetizing their platforms elsewhere.

Indeed, economic and strategic management theory tells us that so long as Apple and Google single-handedly control one of the necessary points of access to their respective ecosystems, they should be able to extract a sizable share of the revenue generated on their platforms. One can only speculate, but it is easy to imagine Apple and Google charging rival app stores for access to their respective platforms, or charging developers for access to critical APIs.

Epic itself seems to concede this point. In a recent Verge article, it argued that Apple was threatening to cut off its access to iOS and Mac developer tools, which Apple currently offers at little to no cost:

Apple will terminate Epic’s inclusion in the Apple Developer Program, a membership that’s necessary to distribute apps on iOS devices or use Apple developer tools, if the company does not “cure your breaches” to the agreement within two weeks, according to a letter from Apple that was shared by Epic. Epic won’t be able to notarize Mac apps either, a process that could make installing Epic’s software more difficult or block it altogether. Apple requires that all apps are notarized before they can be run on newer versions of macOS, even if they’re distributed outside the App Store.

There is little to prevent Apple from more heavily monetizing these tools – should Epic’s antitrust case successfully prevent it from charging commissions via its app store.

All of this raises the question: why is Epic bringing a suit that, if successful, would merely result in the emergence of alternative fee schedules (as opposed to a significant reduction of the overall fees paid by developers).

One potential answer is that the current system is highly favorable to small apps that earn little to no revenue from purchases and who benefit most from the trust created by Apple and Google’s curation of their stores. It is, however, much less favorable to developers like Epic who no longer require any curation to garner the necessary trust from consumers and who earn a large share of their revenue from in-app purchases.

In more technical terms, the fact that all in-game payments are made through Apple and Google’s payment processing enables both platforms to more easily price-discriminate. Unlike fixed fees (but just like royalties), percentage commissions are necessarily state-contingent (i.e. the same commission will lead to vastly different revenue depending on an underlying app’s success). The most successful apps thus contribute far more to a platform’s fixed costs. For instance, it is estimated that mobile games account for 72% of all app store spend. Likewise, more than 80% of the apps on Apple’s store pay no commission at all.

This likely expands app store output by getting lower value developers on board. In that sense, it is akin to Ramsey pricing (where a firm/utility expands social welfare by allocating a higher share of fixed costs to the most inelastic consumers). Unfortunately, this would be much harder to accomplish if high value developers could easily bypass Apple or Google’s payment systems.

The bottom line is that Epic appears to be fighting to change Apple and Google’s app store business models in order to obtain fee schedules that are better aligned with its own interests. This is all the more important for Epic Games, given that mobile gaming is becoming increasingly popular relative to other gaming mediums (also here).

The emergence of new gaming platforms

Up to this point, I have mostly presented a zero-sum view of Epic’s lawsuit – i.e. developers and platforms are fighting over the distribution app store profits (though some smaller developers may lose out). But this ignores what is likely the chief virtue of Apple and Google’s “closed” distribution model. Namely, that it has greatly expanded the market for mobile gaming (and other mobile software), and will likely continue to do so in the future.

Much has already been said about the significant security and trust benefits that Apple and Google’s curation of their app stores (including their control of in-app payments) provide to users. Benedict Evans and Ben Thompson have both written excellent pieces on this very topic. 

In a nutshell, the closed model allows previously unknown developers to rapidly expand because (i) users do not have to fear their apps contain some form of malware, and (ii) they greatly reduce payments frictions, most notably security related ones. But while these are indeed tremendous benefits, another important upside seems to have gone relatively unnoticed. 

The “closed” business model also gives Apple and Google (as well as other platforms) significant incentives to develop new distribution mediums (smart TVs spring to mind) and improve existing ones. In turn, this greatly expands the audience that software developers can reach. In short, developers get a smaller share of a much larger pie.

The economics of two-sided markets are enlightening in this respect. Apple and Google’s stores are what Armstrong and Wright (here and here) refer to as “competitive bottlenecks”. That is, they compete aggressively (amongst themselves, and with other gaming platforms) to attract exclusive users. They can then charge developers a premium to access those users (note, however, that in the case at hand the incidence of those platform fees is unclear).

This gives platforms significant incentives to continuously attract and retain new users. For instance, if Steve Jobs is to be believed, giving consumers better access to media such as eBooks, video and games was one of the driving forces behind the launch of the iPad

This model of innovation would be seriously undermined if developers and consumers could easily bypass platforms (as Epic games is seeking to do).

In response, some commentators have countered that platforms may use their strong market positions to squeeze developers, thereby undermining software investments. But such a course of action may ultimately be self-defeating. For instance, writing about retail platforms imitating third-party sellers, Anfrei Hagiu, Tat-How Teh and Julian Wright have argued that:

[T]he platform has an incentive to commit itself not to imitate highly innovative third-party products in order to preserve their incentives to innovate.

Seen in this light, Apple and Google’s 30% commissions can be seen as a soft commitment not to expropriate developers, thus leaving them with a sizable share of the revenue generated on each platform. This may explain why the 30% commission has become a standard in the games industry (and beyond). 

Furthermore, from an evolutionary perspective, it is hard to argue that the 30% commission is somehow extortionate. If game developers were systematically expropriated, then the gaming industry – in particular its mobile segment – would not have grown so drastically over the past years:

All of this this likely explains why a recent survey found that 81% of app developers believed regulatory intervention would be misguided:

81% of developers and publishers believe that the relationship between them and platforms is best handled within the industry, rather than through government intervention. Competition and choice mean that developers will use platforms that they work with best.

The upshot is that the “closed” model employed by Apple and Google has served the gaming industry well. There is little compelling reason to overhaul that model today.

Final thoughts

When all is said and done, there is no escaping the fact that Epic games is currently playing a high-stakes rent-seeking game. As Apple noted in its opposition to Epic’s motion for a temporary restraining order:

Epic did not, and has not, contested that it is in breach of the App Store Guidelines and the License Agreement. Epic’s plan was to violate the agreements intentionally in order to manufacture an emergency. The moment Fortnite was removed from the App Store, Epic launched an extensive PR smear campaign against Apple and a litigation plan was orchestrated to the minute; within hours, Epic had filed a 56-page complaint, and within a few days, filed nearly 200 pages with this Court in a pre-packaged “emergency” motion. And just yesterday, it even sought to leverage its request to this Court for a sales promotion, announcing a “#FreeFortniteCup” to take place on August 23, inviting players for one last “Battle Royale” across “all platforms” this Sunday, with prizes targeting Apple.

Epic is ultimately seeking to introduce its own app store on both Apple and Google’s platforms, or at least bypass their payment processing services (as Spotify is seeking to do in the EU).

Unfortunately, as this post has argued, condoning this type of free-riding could prove highly detrimental to the entire mobile software industry. Smaller companies would almost inevitably be left to foot a larger share of the bill, existing platforms would become less secure, and the development of new ones could be hindered. At the end of the day, 30% might actually be a small price to pay.

In an age of antitrust populism on both ends of the political spectrum, federal and state regulators face considerable pressure to deploy the antitrust laws against firms that have dominant market shares. Yet federal case law makes clear that merely winning the race for a market is an insufficient basis for antitrust liability. Rather, any plaintiff must show that the winner either secured or is maintaining its dominant position through practices that go beyond vigorous competition. Any other principle would inhibit the competitive process that the antitrust laws are designed to promote. Federal judges who enjoy life tenure are far more insulated from outside pressures and therefore more likely to demand evidence of anticompetitive practices as a predicate condition for any determination of antitrust liability.

This separation of powers between the executive branch, which prosecutes alleged infractions of the law, and the judicial branch, which polices the prosecutor, is the simple genius behind the divided system of government generally attributed to the eighteenth-century French thinker, Montesquieu. The practical wisdom of this fundamental principle of political design, which runs throughout the U.S. Constitution, can be observed in full force in the current antitrust landscape, in which the federal courts have acted as a bulwark against several contestable enforcement actions by antitrust regulators.

In three headline cases brought by the Department of Justice or the Federal Trade Commission since 2017, the prosecutorial bench has struck out in court. Under the exacting scrutiny of the judiciary, government litigators failed to present sufficient evidence that a dominant firm had engaged in practices that caused, or were likely to cause, significant anticompetitive effects. In each case, these enforcement actions, applauded by policymakers and commentators who tend to follow “big is bad” intuitions, foundered when assessed in light of judicial precedent, the factual record, and the economic principles embedded in modern antitrust law. An ongoing suit, filed by the FTC this year after more than 18 months since the closing of the targeted acquisition, exhibits similar factual and legal infirmities.

Strike 1: The AT&T/Time-Warner Transaction

In response to the announcement of AT&T’s $85.4 billion acquisition of Time Warner, the DOJ filed suit in 2017 to prevent the formation of a dominant provider in home-video distribution that would purportedly deny competitors access to “must-have” content. As I have observed previously, this theory of the case suffered from two fundamental difficulties. 

First, content is an abundant and renewable resource so it is hard to see how AT&T+TW could meaningfully foreclose competitors’ access to this necessary input. Even in the hypothetical case of potentially “must-have” content, it was unclear whether it would be economically rational for post-acquisition AT&T regularly to deny access to other distributors, given that doing so would imply an immediate and significant loss in licensing revenues without any clearly offsetting future gain in revenues from new subscribers.

Second, home-video distribution is a market lapsing rapidly into obsolescence as content monetization shifts from home-based viewing to a streaming environment in which consumers expect “anywhere, everywhere” access. The blockbuster acquisition was probably best understood as a necessary effort to adapt to this new environment (already populated by several major streaming platforms), rather than an otherwise puzzling strategy to spend billions to capture a market on the verge of commercial irrelevance. 

Strike 2: The Sabre/Farelogix Acquisition

In 2019, the DOJ filed suit to block the $360 million acquisition of Farelogix by Sabre, one of three leading airline booking platforms, on the ground that it would substantially lessen competition. The factual basis for this legal diagnosis was unclear. In 2018, Sabre earned approximately $3.9 billion in worldwide revenues, compared to $40 million for Farelogix. Given this drastic difference in market share, and the almost trivial share attributable to Farelogix, it is difficult to fathom how the DOJ could credibly assert that the acquisition “would extinguish a crucial constraint on Sabre’s market power.” 

To use a now much-discussed theory of antitrust liability, it might nonetheless be argued that Farelogix posed a “nascent” competitive threat to the Sabre platform. That is: while Farelogix is small today, it may become big enough tomorrow to pose a threat to Sabre’s market leadership. 

But that theory runs straight into a highly inconvenient fact. Farelogix was founded in 1998 and, during the ensuing two decades, had neither achieved broad adoption of its customized booking technology nor succeeded in offering airlines a viable pathway to bypass the three major intermediary platforms. The proposed acquisition therefore seems best understood as a mutually beneficial transaction in which a smaller (and not very nascent) firm elects to monetize its technology by embedding it in a leading platform that seeks to innovate by acquisition. Robust technology ecosystems do this all the time, efficiently exploiting the natural complementarities between a smaller firm’s “out of the box” innovation with the capital-intensive infrastructure of an incumbent. (Postscript: While the DOJ lost this case in federal court, Sabre elected in May 2020 not to close following similarly puzzling opposition by British competition regulators.) 

Strike 3: FTC v. Qualcomm

The divergence of theories of anticompetitive risk from market realities is vividly illustrated by the landmark suit filed by the FTC in 2017 against Qualcomm. 

The litigation pursued nothing less than a wholesale reengineering of the IP licensing relationships between innovators and implementers that underlie the global smartphone market. Those relationships principally consist of device-level licenses between IP innovators such as Qualcomm and device manufacturers and distributors such as Apple. This structure efficiently collects remuneration from the downstream segment of the supply chain for upstream firms that invest in pushing forward the technology frontier. The FTC thought otherwise and pursued a remedy that would have required Qualcomm to offer licenses to its direct competitors in the chip market and to rewrite its existing licenses with device producers and other intermediate users on a component, rather than device, level. 

Remarkably, these drastic forms of intervention into private-ordering arrangements rested on nothing more than what former FTC Commissioner Maureen Ohlhausen once appropriately called a “possibility theorem.” The FTC deployed a mostly theoretical argument that Qualcomm had extracted an “unreasonably high” royalty that had potentially discouraged innovation, impeded entry into the chip market, and inflated retail prices for consumers. Yet these claims run contrary to all available empirical evidence, which indicates that the mobile wireless device market has exhibited since its inception declining quality-adjusted prices, increasing output, robust entry into the production market, and continuous innovation. The mismatch between the government’s theory of market failure and the actual record of market success over more than two decades challenges the policy wisdom of disrupting hundreds of existing contractual arrangements between IP licensors and licensees in a thriving market. 

The FTC nonetheless secured from the district court a sweeping order that would have had precisely this disruptive effect, including imposing a “duty to deal” that would have required Qualcomm to license directly its competitors in the chip market. The Ninth Circuit stayed the order and, on August 11, 2020, issued an unqualified reversal, stating that the lower court had erroneously conflated “hypercompetitive” (good) with anticompetitive (bad) conduct and observing that “[t]hroughout its analysis, the district court conflated the desire to maximize profits with an intent to ‘destroy competition itself.’” In unusually direct language, the appellate court also observed (as even the FTC had acknowledged on appeal) that the district court’s ruling was incompatible with the Supreme Court’s ruling in Aspen Skiing Co. v. Aspen Highlands Skiing Corp., which strictly limits the circumstances in which a duty to deal can be imposed. In some cases, it appears that additional levels of judicial review are necessary to protect antitrust law against not only administrative but judicial overreach.

Axon v. FTC

For the most explicit illustration of the interface between Montesquieu’s principle of divided government and the risk posed to antitrust law by cases of prosecutorial excess, we can turn to an unusual and ongoing litigation, Axon v. FTC.

The HSR Act and Post-Consummation Merger Challenges

The HSR Act provides regulators with the opportunity to preemptively challenge acquisitions and related transactions on antitrust grounds prior to those transactions having been consummated. Since its enactment in 1976, this statutory innovation has laudably increased dealmakers’ ability to close transactions with a high level of certainty that regulators would not belatedly seek to “unscramble the egg.” While the HSR Act does not foreclose this contingency since regulatory failure to challenge a transaction only indicates current enforcement intentions, it is probably fair to say that M&A dealmakers generally assume that regulators would reverse course only in exceptional circumstances. In turn, the low prospect of after-the-fact regulatory intervention encourages the efficient use of M&A transactions for the purpose of shifting corporate assets to users that value those assets most highly.

The FTC’s Belated Attack on the Axon/Vievu Acquisition

Dealmakers may be revisiting that understanding in the wake of the FTC’s decision in January 2020 to challenge the acquisition of Vievu by Axon, each being a manufacturer of body-worn camera equipment and related data-management software for law enforcement agencies. The acquisition had closed in May 2018 but had not been reported through HSR since it fell well below the reportable deal threshold. Given a total transaction value of $7 million, the passage of more than 18 months since closing, and the insolvency or near-insolvency of the target company, it is far from obvious that the Axon acquisition posed a material competitive risk that merits unsettling expectations that regulators will typically not challenge a consummated transaction, especially in the case of what is a micro-sized nebula in the M&A universe. 

These concerns are heightened by the fact that the FTC suit relies on a debatably narrow definition of the relevant market (body-camera equipment and related “cloud-based” data management software for police departments in large metropolitan areas, rather than a market that encompassed more generally defined categories of body-worn camera equipment, law enforcement agencies, and data management services). Even within this circumscribed market, there are apparently several companies that offer related technologies and an even larger group that could plausibly enter in response to perceived profit opportunities. Despite this contestable legal position, Axon’s court filing states that the FTC offered to settle the suit on stiff terms: Axon must agree to divest itself of the Vievu assets and to license all of Axon’s pre-transaction intellectual property to the buyer of the Vievu assets. This effectively amounts to an opportunistic use of the antitrust merger laws to engage in post-transaction market reengineering, rather than merely blocking an acquisition to maintain the pre-transaction status quo.

Does the FTC Violate the Separation of Powers?

In a provocative strategy, Axon has gone on the offensive and filed suit in federal district court to challenge on constitutional grounds the long-standing internal administrative proceeding through which the FTC’s antitrust claims are initially adjudicated. Unlike the DOJ, the FTC’s first stop in the litigation process (absent settlement) is not a federal district court but an internal proceeding before an administrative law judge (“ALJ”), whose ruling can then be appealed to the Commission. Axon is effectively arguing that this administrative internalization of the judicial function violates the separation of powers principle as implemented in the U.S. Constitution. 

Writing on a clean slate, Axon’s claim is eminently reasonable. The fact that FTC-paid personnel sit on both sides of the internal adjudicative process as prosecutor (the FTC litigation team) and judge (the ALJ and the Commissioners) locates the executive and judicial functions in the hands of a single administrative entity. (To be clear, the Commission’s rulings are appealable to federal court, albeit at significant cost and delay.) In any event, a court presented with Axon’s claim—as of this writing, the Ninth Circuit (taking the case on appeal by Axon)—is not writing on a clean slate and is most likely reluctant to accept a claim that would trigger challenges to the legality of other similarly structured adjudicative processes at other agencies. Nonetheless, Axon’s argument does raise important concerns as to whether certain elements of the FTC’s adjudicative mechanism (as distinguished from the very existence of that mechanism) could be refined to mitigate the conflicts of interest that arise in its current form.

Conclusion

Antitrust vigilance certainly has its place, but it also has its limits. Given the aspirational language of the antitrust statutes and the largely unlimited structural remedies to which an antitrust litigation can lead, there is an inevitable risk of prosecutorial overreach that can betray the fundamental objective to protect consumer welfare. Applied to the antitrust context, the separation of powers principle mitigates this risk by subjecting enforcement actions to judicial examination, which is in turn disciplined by the constraints of appellate review and stare decisis. A rich body of federal case law implements this review function by anchoring antitrust in a decisionmaking framework that promotes the public’s interest in deterring business practices that endanger the competitive process behind a market-based economy. As illustrated by the recent string of failed antitrust suits, and the ongoing FTC litigation against Axon, that same decisionmaking framework can also protect the competitive process against regulatory practices that pose this same type of risk.

Recently-published emails from 2012 between Mark Zuckerberg and Facebook’s then-Chief Financial Officer David Ebersman, in which Zuckerberg lays out his rationale for buying Instagram, have prompted many to speculate that the deal may not have been cleared had antitrust agencies had had access to Facebook’s internal documents at the time.

The issue is Zuckerberg’s description of Instagram as a nascent competitor and potential threat to Facebook:

These businesses are nascent but the networks established, the brands are already meaningful, and if they grow to a large scale they could be very disruptive to us. Given that we think our own valuation is fairly aggressive and that we’re vulnerable in mobile, I’m curious if we should consider going after one or two of them. 

Ebersman objects that a new rival would just enter the market if Facebook bought Instagram. In response, Zuckerberg wrote:

There are network effects around social products and a finite number of different social mechanics to invent. Once someone wins at a specific mechanic, it’s difficult for others to supplant them without doing something different.

These email exchanges may not paint a particularly positive picture of Zuckerberg’s intent in doing the merger, and it is possible that at the time they may have caused antitrust agencies to scrutinise the merger more carefully. But they do not tell us that the acquisition was ultimately harmful to consumers, or about the counterfactual of the merger being blocked. While we know that Instagram became enormously popular in the years following the merger, it is not clear that it would have been just as successful without the deal, or that Facebook and its other products would be less popular today. 

Moreover, it fails to account for the fact that Facebook had the resources to quickly scale Instagram up to a level that provided immediate benefits to an enormous number of users, instead of waiting for the app to potentially grow to such scale organically. 

The rationale

Writing for Pro Market, Randy Picker argued that these emails hint that the acquisition was essentially about taking out a nascent competitor:

Buying Instagram really was about controlling the window in which the Instagram social mechanic invention posed a risk to Facebook … Facebook well understood the competitive risk posed by Instagram and how purchasing it would control that risk.

This is a plausible interpretation of the internal emails, although there are others. For instance, Zuckerberg also seems to say that the purpose is to use Instagram to improve Facebook to make it good enough to fend off other entrants:

If we incorporate the social mechanics they were using, those new products won’t get much traction since we’ll already have their mechanics deployed at scale. 

If this was the rationale, rather than simply trying to kill a nascent competitor, it would be pro-competitive. It is good for consumers if a product makes itself better to beat its rivals by acquiring undervalued assets to deploy them at greater scale and with superior managerial efficiency, even if the acquirer hopes that in doing so it will prevent rivals from ever gaining significant market share. 

Further, despite popular characterization, on its face the acquisition was not about trying to destroy a consumer option, but only to ensure that Facebook was competitively viable in providing that option. Another reasonable interpretation of the emails is that Facebook was wrestling with the age-old make-or-buy dilemma faced by every firm at some point or another. 

Was the merger anticompetitive?

But let us assume that eliminating competition from Instagram was indeed the merger’s sole rationale. Would that necessarily make it anticompetitive?  

Chief among the objections is that both Facebook and Instagram are networked goods. Their value to each user depends, to a significant extent, on the number (and quality) of other people using the same platform. Many scholars have argued that this can create self-reinforcing dynamics where the strong grow stronger – though such an outcome is certainly not a given, since other factors about the service matter too, and networks can suffer from diseconomies of scale as well, where new users reduce the quality of the network.

This network effects point is central to the reasoning of those who oppose the merger: Facebook purportedly acquired Instagram because Instagram’s network had grown large enough to be a threat. With Instagram out of the picture, Facebook could thus take on the remaining smaller rivals with the advantage of its own much larger installed base of users. 

However, this network tipping argument could cut both ways. It is plausible that the proper counterfactual was not duopoly competition between Facebook and Instagram, but either Facebook or Instagram offering both firms’ features (only later). In other words, a possible framing of the merger is that it merely  accelerated the cross-pollination of social mechanics between Facebook and Instagram. Something that would likely prove beneficial to consumers.

This finds some support in Mark Zuckerberg’s reply to David Ebersman:

Buying them would give us the people and time to integrate their innovations into our core products.

The exchange between Zuckerberg and Ebersman also suggests another pro-competitive justification: bringing Instagram’s “social mechanics” to Facebook’s much larger network of users. We can only speculate about what ‘social mechanics’ Zuckerberg actually had in mind, but at the time Facebook’s photo sharing functionality was largely based around albums of unedited photos, whereas Instagram’s core product was a stream of filtered, cropped single images. 

Zuckerberg’s plan to gradually bring these features to Facebook’s users – as opposed to them having to familiarize themselves with an entirely different platform – would likely cut in favor of the deal being cleared by enforcers.

Another possibility is that it was Instagram’s network of creators – the people who had begun to use Instagram as a new medium, distinct from the generic photo albums Facebook had, and who would eventually grow to be known as ‘influencers’ – who were the valuable thing. Bringing them onto the Facebook platform would undoubtedly increase its value to regular users. For example, Kim Kardashian, one of Instagram’s most popular users, joined the service in February 2012, two months before the deal went through, and she was not the first such person to adopt Instagram in this way. We can see the importance of a service’s most creative users today, as Facebook is actually trying to pay TikTok creators to move to its TikTok clone Reels.

But if this was indeed the rationale, not only is this a sign of a company in the midst of fierce competition – rather than one on the cusp of acquiring a monopoly position – but, more fundamentally, it suggests that Facebook was always going to come out on top. Or at least it thought so.

The benefit of hindsight

Today’s commentators have the benefit of hindsight. This inherently biases contemporary takes on the Facebook/Instagram merger. For instance, it seems almost self-evident with hindsight that Facebook would succeed and that entry in the social media space would only occur at the fringes of existing platforms (the combined Facebook/Instagram platform) – think of the emergence of TikTok. However, at the time of the merger, such an outcome was anything but a foregone conclusion.

For instance, critics argue that Instagram no longer competes with Facebook because of the merger. However, it is equally plausible that Instagram only became so successful because of its combination with Facebook (notably thanks to the addition of Facebook’s advertising platform, and the rapid rollout of a stories feature in response to Snapchat’s rise). Indeed, Instagram grew from roughly 24 million at the time of the acquisition to over 1 Billion users in 2018. Likewise, it earned zero revenue at the time of the merger. This might explain why the acquisition was widely derided at the time.

This is critical from an antitrust perspective. Antitrust enforcers adjudicate merger proceedings in the face of extreme uncertainty. All possible outcomes, including the counterfactual setting, have certain probabilities of being true that enforcers and courts have to make educated guesses about, assigning probabilities to potential anticompetitive harms, merger efficiencies, and so on.

Authorities at the time of the merger could not ignore these uncertainties. What was the likelihood that a company with a fraction of Facebook’s users (24 million to Facebook’s 1 billion), and worth $1 billion, could grow to threaten Facebook’s market position? At the time, the answer seemed to be “very unlikely”. Moreover, how could authorities know that Google+ (Facebook’s strongest competitor at the time) would fail? These outcomes were not just hard to ascertain, they were simply unknowable.

Of course, this is preceisly what neo-Brandesian antitrust scholars object to today: among the many seemingly innocuous big tech acquisitions that are permitted each year, there is bound to be at least one acquired firm that might have been a future disruptor. True as this may be, identifying that one successful company among all the others is the antitrust equivalent of finding a needle in a haystack. Instagram simply did not fit that description at the time of the merger. Such a stance also ignores the very real benefits that may arise from such arrangements.

Closing remarks

While it is tempting to reassess the Facebook Instagram merger in light of new revelations, such an undertaking is not without pitfalls. Hindsight bias is perhaps the most obvious, but the difficulties run deeper.

If we think that the Facebook/Instagram merger has been and will continue to be good for consumers, it would be strange to think that we should nevertheless break them up because we discovered that Zuckerberg had intended to do things that would harm consumers. Conversely, if you think a breakup would be good for consumers today, would it change your mind if you discovered that Mark Zuckerberg had the intentions of an angel when he went ahead with the merger in 2012, or that he had angelic intent today?

Ultimately, merger review involves making predictions about the future. While it may be reasonable to take the intentions of the merging parties into consideration when making those predictions (although it’s not obvious that we should), these are not the only or best ways to determine what the future will hold. As Ebersman himself points out in the emails, history is filled with over-optimistic mergers that failed to deliver benefits to the merging parties. That this one succeeded beyond the wildest dreams of everyone involved – except maybe Mark Zuckerberg – does not tell us that competition agencies should have ruled on it differently.

During last week’s antitrust hearing, Representative Jamie Raskin (D-Md.) provided a sound bite that served as a salvo: “In the 19th century we had the robber barons, in the 21st century we get the cyber barons.” But with sound bites, much like bumper stickers, there’s no room for nuance or scrutiny.

The news media has extensively covered the “questioning” of the CEOs of Facebook, Google, Apple, and Amazon (collectively “Big Tech”). Of course, most of this questioning was actually political posturing with little regard for the actual answers or antitrust law. But just like with the so-called robber barons, the story of Big Tech is much more interesting and complex. 

The myth of the robber barons: Market entrepreneurs vs. political entrepreneurs

The Robber Barons: The Great American Capitalists, 1861–1901 (1934) by Matthew Josephson, was written in the midst of America’s Great Depression. Josephson, a Marxist with sympathies for the Soviet Union, made the case that the 19th century titans of industry were made rich on the backs of the poor during the industrial revolution. This idea that the rich are wealthy due to their robbing of the rest of us is an idea that has long outlived Josephson and Marx down to the present day, as exemplified by the writings of Matt Stoller and the politics of the House Judiciary Committee.

In his Myth of the Robber Barons, Burton Folsom, Jr. makes the case that much of the received wisdom on the great 19th century businessmen is wrong. He distinguishes between the market entrepreneurs, which generated wealth by selling newer, better, or less expensive products on the free market without any government subsidies, and the political entrepreneurs, who became rich primarily by influencing the government to subsidize their businesses, or enacting legislation or regulation that harms their competitors. 

Folsom narrates the stories of market entrepreneurs, like Thomas Gibbons & Cornelius Vanderbilt (steamships), James Hill (railroads), the Scranton brothers (iron rails), Andrew Carnegie & Charles Schwab (steel), and John D. Rockefeller (oil), who created immense value for consumers by drastically reducing the prices of the goods and services their companies provided. Yes, these men got rich. But the value society received was arguably even greater. Wealth was created because market exchange is a positive-sum game.

On the other hand, the political entrepreneurs, like Robert Fulton & Edward Collins (steamships), and Leland Stanford & Henry Villard (railroads), drained societal resources by using taxpayer money to create inefficient monopolies. Because they were not subject to the same market discipline due to their favored position, cutting costs and prices were less important to them than the market entrepreneurs. Their wealth was at the expense of the rest of society, because political exchange is a zero-sum game.

Big Tech makes society better off

Today’s titans of industry, i.e. Big Tech, have created enormous value for society. This is almost impossible to deny, though some try. From zero-priced search on Google, to the convenience and price of products on Amazon, to the nominally free social network(s) of Facebook, to the plethora of options in Apple’s App Store, consumers have greatly benefited from Big Tech. Consumers flock to use Google, Facebook, Amazon, and Apple for a reason: they believe they are getting a great deal. 

By and large, the techlash comes from “intellectuals” who think they know better than consumers acting in the marketplace about what is good for them. And as noted by Alec Stapp, Americans in opinion polls consistently put a great deal of trust in Big Tech, at least compared to government institutions:

One of the basic building blocks of economics is that both parties benefit from voluntary exchanges ex ante, or else they would not be willing to engage in it. The fact that consumers use Big Tech to the extent they do is overwhelming evidence of their value. Obfuscations like “market power” mislead more than they inform. In the absence of governmental barriers to entry, consumers voluntarily choosing Big Tech does not mean they have power, it means they provide great service.

Big Tech companies are run by entrepreneurs who must ultimately answer to consumers. In a market economy, profits are a signal that entrepreneurs have successfully brought value to society. But they are also a signal to potential competitors. If Big Tech companies don’t continue to serve the interests of their consumers, they risk losing them to competitors.

Big Tech’s CEOs seem to get this. For instance, Jeff Bezos’ written testimony emphasized the importance of continual innovation at Amazon as a reason for its success:

Since our founding, we have strived to maintain a “Day One” mentality at the company. By that I mean approaching everything we do with the energy and entrepreneurial spirit of Day One. Even though Amazon is a large company, I have always believed that if we commit ourselves to maintaining a Day One mentality as a critical part of our DNA, we can have both the scope and capabilities of a large company and the spirit and heart of a small one. 

In my view, obsessive customer focus is by far the best way to achieve and maintain Day One vitality. Why? Because customers are always beautifully, wonderfully dissatisfied, even when they report being happy and business is great. Even when they don’t yet know it, customers want something better, and a constant desire to delight customers drives us to constantly invent on their behalf. As a result, by focusing obsessively on customers, we are internally driven to improve our services, add benefits and features, invent new products, lower prices, and speed up shipping times—before we have to. No customer ever asked Amazon to create the Prime membership program, but it sure turns out they wanted it. And I could give you many such examples. Not every business takes this customer-first approach, but we do, and it’s our greatest strength.

The economics of multi-sided platforms: How Big Tech does it

Economically speaking, Big Tech companies are (mostly) multi-sided platforms. Multi-sided platforms differ from regular firms in that they have to serve two or more of these distinct types of consumers to generate demand from any of them.

Economist David Evans, who has done as much as any to help us understand multi-sided platforms, has identified three different types:

  1. Market-Makers enable members of distinct groups to transact with each other. Each member of a group values the service more highly if there are more members of the other group, thereby increasing the likelihood of a match and reducing the time it takes to find an acceptable match. (Amazon and Apple’s App Store)
  2. Audience-Makers match advertisers to audiences. Advertisers value a service more if there are more members of an audience who will react positively to their messages; audiences value a service more if there is more useful “content” provided by audience-makers. (Google, especially through YouTube, and Facebook, especially through Instagram)
  3. Demand-Coordinators make goods and services that generate indirect network effects across two or more groups. These platforms do not strictly sell “transactions” like a market maker or “messages” like an audience-maker; they are a residual category much like irregular verbs – numerous, heterogeneous, and important. Software platforms such as Windows and the Palm OS, payment systems such as credit cards, and mobile telephones are demand coordinators. (Android, iOS)

In order to bring value, Big Tech has to consider consumers on all sides of the platform they operate. Sometimes, this means consumers on one side of the platform subsidize the other. 

For instance, Google doesn’t charge its users to use its search engine, YouTube, or Gmail. Instead, companies pay Google to advertise to their users. Similarly, Facebook doesn’t charge the users of its social network, advertisers on the other side of the platform subsidize them. 

As their competitors and critics love to point out, there are some complications in that some platforms also compete in the markets they create. For instance, Apple does place its own apps inits App Store, and Amazon does engage in some first-party sales on its platform. But generally speaking, both Apple and Amazon act as matchmakers for exchanges between users and third parties.

The difficulty for multi-sided platforms is that they need to balance the interests of each part of the platform in a way that maximizes its value. 

For Google and Facebook, they need to balance the interests of users and advertisers. In the case of each, this means a free service for users that is subsidized by the advertisers. But the advertisers gain a lot of value by tailoring ads based upon search history, browsing history, and likes and shares. For Apple and Amazon they need to create platforms which are valuable for buyers and sellers, and balance how much first-party competition they want to have before they lose the benefits of third-party sales.

There are no easy answers to creating a search engine, a video service, a social network, an App store, or an online marketplace. Everything from moderation practices, to pricing on each side of the platform, to the degree of competition from the platform operators themselves needs to be balanced right or these platforms would lose participants on one side of the platform or the other to competitors. 

Conclusion

Representative Raskin’s “cyber barons” were raked through the mud by Congress. But much like the falsely identified robber barons of the 19th century who were truly market entrepreneurs, the Big Tech companies of today are wrongfully maligned.

No one is forcing consumers to use these platforms. The incredible benefits they have brought to society through market processes shows they are not robbing anyone. Instead, they are constantly innovating and attempting to strike a balance between consumers on each side of their platform. 

The myth of the cyber barons need not live on any longer than last week’s farcical antitrust hearing.

This guest post is by Corbin K. Barthold, Senior Litigation Counsel at Washington Legal Foundation.

A boy throws a brick through a bakeshop window. He flees and is never identified. The townspeople gather around the broken glass. “Well,” one of them says to the furious baker, “at least this will generate some business for the windowmaker!”

A reasonable statement? Not really. Although it is indeed a good day for the windowmaker, the money for the new window comes from the baker. Perhaps the baker was planning to use that money to buy a new suit. Now, instead of owning a window and a suit, he owns only a window. The windowmaker’s gain, meanwhile, is simply the tailor’s loss.

This parable of the broken window was conceived by Frédéric Bastiat, a nineteenth-century French economist. He wanted to alert the reader to the importance of opportunity costs—in his words, “that which is not seen.” Time and money spent on one activity cannot be spent on another.

Today Bastiat might tell the parable of the harassed technology company. A tech firm creates a revolutionary new product or service and grows very large. Rivals, lawyers, activists, and politicians call for an antitrust probe. Eventually they get their way. Millions of documents are produced, dozens of depositions are taken, and several hearings are held. In the end no concrete action is taken. “Well,” the critics say, “at least other companies could grow while the firm was sidetracked by the investigation!”

Consider the antitrust case against Microsoft twenty years ago. The case ultimately settled, and Microsoft agreed merely to modify minor aspects of how it sold its products. “It’s worth wondering,” writes Brian McCullough, a generally astute historian of the internet, “how much the flowering of the dot-com era was enabled by the fact that the most dominant, rapacious player in the industry was distracted while the new era was taking shape.” “It’s easy to see,” McCullough says, “that the antitrust trial hobbled Microsoft strategically, and maybe even creatively.”

Should we really be glad that an antitrust dispute “distracted” and “hobbled” Microsoft? What would a focused and unfettered Microsoft have achieved? Maybe nothing; incumbents often grow complacent. Then again, Microsoft might have developed a great search engine or social-media platform. Or it might have invented something that, thanks to the lawsuit, remains absent to this day. What Microsoft would have created in the early 2000s, had it not had to fight the government, is that which is not seen.

But doesn’t obstructing the most successful companies create “room” for new competitors? David Cicilline, the chairman of the House’s antitrust subcommittee, argues that “just pursuing the [Microsoft] enforcement action itself” made “space for an enormous amount of additional innovation and competition.” He contends that the large tech firms seek to buy promising startups before they become full-grown threats, and that such purchases must be blocked.

It’s easy stuff to say. It’s not at all clear that it’s true or that it makes sense. Hindsight bias is rampant. In 2012, for example, Facebook bought Instagram for $1 billion, a purchase that is now cited as a quintessential “killer acquisition.” At the time of the sale, however, Instagram had 27 million users and $0 in revenue. Today it has around a billion users, it is estimated to generate $7 billion in revenue each quarter, and it is worth perhaps $100 billion. It is presumptuous to declare that Instagram, which had only 13 employees in 2012, could have achieved this success on its own.

If distraction is an end in itself, last week’s Big Tech hearing before Cicilline and his subcommittee was a smashing success. Presumably Jeff Bezos, Tim Cook, Sundar Pichai, and Mark Zuckerberg would like to spend the balance of their time developing the next big innovations and staying ahead of smart, capable, ruthless competitors, starting with each other and including foreign firms such as ByteDance and Huawei. Last week they had to put their aspirations aside to prepare for and attend five hours of political theater.

The most common form of exchange at the hearing ran as follows. A representative asks a slanted question. The witness begins to articulate a response. The representative cuts the witness off. The representative gives a prepared speech about how the witness’s answer proved her point.

Lucy Kay McBath, a first-term congresswoman from Georgia, began one such drill with the claim that Facebook’s privacy policy from 2004, when Zuckerberg was 20 and Facebook had under a million users, applies in perpetuity. “We do not and will not use cookies to collect private information from any users,” it said. Has Facebook broken its “promise,” McBath asked, not to use cookies to collect private information? No, Zuckerberg explained (letting the question’s shaky premise slide), Facebook uses only standard log-in cookies.

“So once again, you do not use cookies? Yes or no?” McBath interjected. Having now asked a completely different question, and gotten a response resembling what she wanted—“Yes, we use cookies [on log-in features]”—McBath could launch into her canned condemnation. “The bottom line here,” she said, reading from her page, “is that you broke a commitment to your users. And who can say whether you may or may not do that again in the future?” The representative pressed on with her performance, not noticing or not caring that the person she was pretending to engage with had upset her script.

Many of the antitrust subcommittee’s queries had nothing to do with antitrust. One representative fixated on Amazon’s ties with the Southern Poverty Law Center. Another seemed to want Facebook to interrogate job applicants about their political beliefs. A third asked Zuckerberg to answer for the conduct of Twitter. One representative demanded that social-media posts about unproven Covid-19 treatments be left up, another that they be taken down. Most of the questions that were at least vaguely on topic, meanwhile, were exceedingly weak. The representatives often mistook emails showing that tech CEOs play to win, that they seek to outcompete challengers and rivals, for evidence of anticompetitive harm to consumers. And the panel was often treated like a customer-service hotline. This app developer ran into a difficulty; what say you, Mr. Cook? That third-party seller has a gripe; why won’t you listen to her, Mr. Bezos?

In his opening remarks, Bezos cited a survey that ranked Amazon one of the country’s most trusted institutions. No surprise there. In many places one could have ordered a grocery delivery from Amazon as the hearing started and had the goods put away before it ended. Was Bezos taking a muted dig at Congress? He had every right to—it is one of America’s least trusted institutions. Pichai, for his part, noted that many users would be willing to pay thousands of dollars a year for Google’s free products. Is Congress providing people that kind of value?

The advance of technology will never be an unalloyed blessing. There are legitimate concerns, for instance, about how social-media platforms affect public discourse. “Human beings evolved to gossip, preen, manipulate, and ostracize,” psychologist Jonathan Haidt and technologist Tobias Rose-Stockwell observe. Social media exploits these tendencies, they contend, by rewarding those who trade in the glib put-down, the smug pronouncement, the theatrical smear. Speakers become “cruel and shallow”; “nuance and truth” become “casualties in [a] competition to gain the approval of [an] audience.”

Three things are true at once. First, Haidt and Rose-Stockwell have a point. Second, their point goes only so far. Social media does not force people to behave badly. Assuming otherwise lets individual humans off too easy. Indeed, it deprives them of agency. If you think it is within your power to display grace, love, and transcendence, you owe it to others to think it is within their power as well.

Third, if you really want to see adults act like children, watch a high-profile congressional hearing. A hearing for Attorney General William Barr, held the day before the Big Tech hearing and attended by many of the same representatives, was a classic of the format.

The tech hearing was not as shambolic as the Barr hearing. And the representatives act like sanctimonious halfwits in part to concoct the sick burns that attract clicks on the very platforms built, facilitated, and delivered by the tech companies. For these and other obvious reasons, no one should feel sorry for the four men who spent a Wednesday afternoon serving as props for demagogues. But that doesn’t mean the charade was a productive use of time. There is always that which is not seen.

Earlier this year the UK government announced it was adopting the main recommendations of the Furman Report into competition in digital markets and setting up a “Digital Markets Taskforce” to oversee those recommendations being put into practice. The Competition and Markets Authority’s digital advertising market study largely came to similar conclusions (indeed, in places it reads as if the CMA worked backwards from those conclusions).

The Furman Report recommended that the UK should overhaul its competition regime with some quite significant changes to regulate the conduct of large digital platforms and make it harder for them to acquire other companies. But, while the Report’s panel is accomplished and its tone is sober and even-handed, the evidence on which it is based does not justify the recommendations it makes.

Most of the citations in the Report are of news reports or simple reporting of data with no analysis, and there is very little discussion of the relevant academic literature in each area, even to give a summary of it. In some cases, evidence and logic are misused to justify intuitions that are just not supported by the facts.

Killer acquisitions

One particularly bad example is the report’s discussion of mergers in digital markets. The Report provides a single citation to support its proposals on the question of so-called “killer acquisitions” — acquisitions where incumbent firms acquire innovative startups to kill their rival product and avoid competing on the merits. The concern is that these mergers slip under the radar of current merger control either because the transaction is too small, or because the purchased firm is not yet in competition with the incumbent. But the paper the Report cites, by Colleen Cunningham, Florian Ederer and Song Ma, looks only at the pharmaceutical industry. 

The Furman Report says that “in the absence of any detailed analysis of the digital sector, these results can be roughly informative”. But there are several important differences between the drug markets the paper considers and the digital markets the Furman Report is focused on. 

The scenario described in the Cunningham, et al. paper is of a patent holder buying a direct competitor that has come up with a drug that emulates the patent holder’s drug without infringing on the patent. As the Cunningham, et al. paper demonstrates, decreases in development rates are a feature of acquisitions where the acquiring company holds a patent for a similar product that is far from expiry. The closer a patent is to expiry, the less likely an associated “killer” acquisition is. 

But tech typically doesn’t have the clear and predictable IP protections that would make such strategies reliable. The long and uncertain development and approval process involved in bringing a drug to market may also be a factor.

There are many more differences between tech acquisitions and the “killer acquisitions” in pharma that the Cunningham, et al. paper describes. SO-called “acqui-hires,” where a company is acquired in order to hire its workforce en masse, are common in tech and explicitly ruled out of being “killers” by this paper, for example: it is not harmful to overall innovation or output overall if a team is moved to a more productive project after an acquisition. And network effects, although sometimes troubling from a competition perspective, can also make mergers of platforms beneficial for users by growing the size of that platform (because, of course, one of the points of a network is its size).

The Cunningham, et al. paper estimates that 5.3% of pharma acquisitions are “killers”. While that may seem low, some might say it’s still 5.3% too much. However, it’s not obvious that a merger review authority could bring that number closer to zero without also rejecting more mergers that are good for consumers, making people worse off overall. Given the number of factors that are specific to pharma and that do not apply to tech, it is dubious whether the findings of this paper are useful to the Furman Report’s subject at all. Given how few acquisitions are found to be “killers” in pharma with all of these conditions present, it seems reasonable to assume that, even if this phenomenon does apply in some tech mergers, it is significantly rarer than the ~5.3% of mergers Cunningham, et al. find in pharma. As a result, the likelihood of erroneous condemnation of procompetitive mergers is significantly higher. 

In any case, there’s a fundamental disconnect between the “killer acquisitions” in the Cunningham, et al. paper and the tech acquisitions described as “killers” in the popular media. Neither Facebook’s acquisition of Instagram nor Google’s acquisition of Youtube, which FTC Commissioner Rohit Chopra recently highlighted, would count, because in neither case was the acquired company “killed.” Nor were any of the other commonly derided tech acquisitions — e.g., Facebook/Whatsapp, Google/Waze, Microsoft.LinkedIn, or Amazon/Whole Foods — “killers,” either. 

In all these high-profile cases the acquiring companies expanded the service and invested more in them. One may object that these services would have competed with their acquirers had they remained independent, but this is a totally different argument to the scenarios described in the Cunningham, et al. paper, where development of a new drug is shut down by the acquirer ostensibly to protect their existing product. It is thus extremely difficult to see how the Cunningham, et al. paper is even relevant to the digital platform context, let alone how it could justify a wholesale revision of the merger regime as applied to digital platforms.

A recent paper (published after the Furman Report) does attempt to survey acquisitions by Google, Amazon, Facebook, Microsoft, and Apple. Out of 175 acquisitions in the 2015-17 period the paper surveys, only one satisfies the Cunningham, et al. paper’s criteria for being a potentially “killer” acquisition — Facebook’s acquisition of a photo sharing app called Masquerade, which had raised just $1 million in funding before being acquired.

In lieu of any actual analysis of mergers in digital markets, the Report falls back on a puzzling logic:

To date, there have been no false positives in mergers involving the major digital platforms, for the simple reason that all of them have been permitted. Meanwhile, it is likely that some false negatives will have occurred during this time. This suggests that there has been underenforcement of digital mergers, both in the UK and globally. Remedying this underenforcement is not just a matter of greater focus by the enforcer, as it will also need to be assisted by legislative change.

This is very poor reasoning. It does not logically follow that the (presumed) existence of false negatives implies that there has been underenforcement, because overenforcement carries costs as well. Moreover, there are strong reasons to think that false positives in these markets are more costly than false negatives. A well-run court system might still fail to convict a few criminals because the cost of accidentally convicting an innocent person was so high.

The UK’s competition authority did commission an ex post review of six historical mergers in digital markets, including Facebook/Instagram and Google/Waze, two of the most controversial in the UK. Although it did suggest that the review process could have been done differently, it also highlighted efficiencies that arose from each, and did not conclude that any has led to consumer detriment.

Recommendations

The Report is vague about which mergers it considers to have been uncompetitive, and apart from the aforementioned text it does not really attempt to justify its recommendations around merger control. 

Despite this, the Report recommends a shift to a ‘balance of harms’ approach. Under the current regime, merger review focuses on the likelihood that a merger would reduce competition which, at least, gives clarity about the factors to be considered. A ‘balance of harms’ approach would require the potential scale (size) of the merged company to be considered as well. 

This could give basis for blocking any merger at all on ‘scale’ grounds. After all, if a photo editing app with a sharing timeline can grow into the world’s second largest social network, how could a competition authority say with any confidence that some other acquisition might not prevent the emergence of a new platform on a similar scale, however unlikely? This could provide a basis for blocking almost any acquisition by an incumbent firm, and make merger review an even more opaque and uncertain process than it currently is, potentially deterring efficiency-raising mergers or leading startups that would like to be acquired to set up and operate overseas instead (or not to be started up in the first place).

The treatment of mergers is just one example of the shallowness of the Report. In many other cases — the discussions of concentration and barriers to entry in digital markets, for example — big changes are recommended on the basis of a handful of papers or less. Intuition repeatedly trumps evidence and academic research.

The Report’s subject is incredibly broad, of course, and one might argue that such a limited, casual approach is inevitable. In this sense the Report may function perfectly well as an opening brief introducing the potential range of problems in the digital economy that a rational competition authority might consider addressing. But the complexity and uncertainty of the issues is no reason to eschew rigorous, detailed analysis before determining that a compelling case has been made. Adopting the Report’s assumptions — and in many cases that is the very most one can say of them — of harm and remedial recommendations on the limited bases it offers is sure to lead to erroneous enforcement of competition law in a way that would reduce, rather than enhance, consumer welfare.