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[TOTM: The following is part of a digital symposium by TOTM guests and authors on the law, economics, and policy of the antitrust lawsuits against Google. The entire series of posts is available here.]

U.S. antitrust regulators have a history of narrowly defining relevant markets—often to the point of absurdity—in order to create market power out of thin air. The Federal Trade Commission (FTC) famously declared that Whole Foods and Wild Oats operated in the “premium natural and organic supermarkets market”—a narrowly defined market designed to exclude other supermarkets carrying premium natural and organic foods, such as Walmart and Kroger. Similarly, for the Staples-Office Depot merger, the FTC

narrowly defined the relevant market as “office superstore” chains, which excluded general merchandisers such as Walmart, K-Mart and Target, who at the time accounted for 80% of office supply sales.

Texas Attorney General Ken Paxton’s complaint against Google’s advertising business, joined by the attorneys general of nine other states, continues this tradition of narrowing market definition to shoehorn market dominance where it may not exist.

For example, one recent paper critical of Google’s advertising business narrows the relevant market first from media advertising to digital advertising, then to the “open” supply of display ads and, finally, even further to the intermediation of the open supply of display ads. Once the market has been sufficiently narrowed, the authors conclude Google’s market share is “perhaps sufficient to confer market power.”

While whittling down market definitions may achieve the authors’ purpose of providing a roadmap to prosecute Google, one byproduct is a mishmash of market definitions that generates as many as 16 relevant markets for digital display and video advertising, in many of which Google doesn’t have anything approaching market power (and in some of which, in fact, Facebook, and not Google, is the most dominant player).

The Texas complaint engages in similar relevant-market gerrymandering. It claims that, within digital advertising, there exist several relevant markets and that Google monopolizes four of them:

  1. Publisher ad servers, which manage the inventory of a publisher’s (e.g., a newspaper’s website or a blog) space for ads;
  2. Display ad exchanges, the “marketplace” in which auctions directly match publishers’ selling of ad space with advertisers’ buying of ad space;
  3. Display ad networks, which are similar to exchanges, except a network acts as an intermediary that collects ad inventory from publishers and sells it to advertisers; and
  4. Display ad-buying tools, which include demand-side platforms that collect bids for ad placement with publishers.

The complaint alleges, “For online publishers and advertisers alike, the different online advertising formats are not interchangeable.” But this glosses over a bigger challenge for the attorneys general: Is online advertising a separate relevant market from offline advertising?

Digital advertising, of which display advertising is a small part, is only one of many channels through which companies market their products. About half of today’s advertising spending in the United States goes to digital channels, up from about 10% a decade ago. Approximately 30% of ad spending goes to television, with the remainder going to radio, newspapers, magazines, billboards and other “offline” forms of media.

Physical newspapers now account for less than 10% of total advertising spending. Traditionally, newspapers obtained substantial advertising revenues from classified ads. As internet usage increased, newspaper classifieds 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.

The price of advertising has fallen steadily over the past decade, while output has risen. Spending on digital advertising in the United States 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 (PPI) for internet advertising sales declined by nearly 40%. 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 gross domestic product, 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, rather than one of rising concentration and reduced competition.

There is little or no empirical data evaluating the extent to which online and offline advertising constitute distinct markets or the extent to which digital display is a distinct submarket of online advertising. As a result, analysis of adtech competition has relied on identifying several technical and technological factors—as well as the say-so of participants in the business—that the analysts assert distinguish online from offline and establish digital display (versus digital search) as a distinct submarket. This approach has been used and accepted, especially in cases in which pricing data has not been available.

But the pricing information that is available raises questions about the extent to which online advertising is a distinct market from offline advertising. For example, Avi Goldfarb and Catherine Tucker find that, when local regulations prohibit offline direct advertising, search advertising is more expensive, indicating that search and offline advertising are substitutes. In other research, they report that online display advertising circumvents, in part, local bans on offline billboard advertising for alcoholic beverages. In both studies, Goldfarb and Tucker conclude their results suggest online and offline advertising are substitutes. They also conclude this substitution suggests that online and offline markets should be considered together in the context of antitrust.

While this information is not sufficient to define a broader relevant market, it raises questions regarding solely relying on the technical or technological distinctions and the say-so of market participants.

In the United States, plaintiffs do not get to define the relevant market. That is up to the judge or the jury. Plaintiffs have the burden to convince the court that a proposed narrow market definition is the correct one. With strong evidence that online and offline ads are substitutes, the court should not blindly accept the gerrymandered market definitions posited by the attorneys general.

[TOTM: The following is part of a blog series by TOTM guests and authors on the law, economics, and policy of the ongoing COVID-19 pandemic. The entire series of posts is available here.

This post is authored by Eric Fruits, (Chief Economist, International Center for Law & Economics).]

Earlier this week, merger talks between Uber and food delivery service Grubhub surfaced. House Antitrust Subcommittee Chairman David N. Cicilline quickly reacted to the news:

Americans are struggling to put food on the table, and locally owned businesses are doing everything possible to keep serving people in our communities, even under great duress. Uber is a notoriously predatory company that has long denied its drivers a living wage. Its attempt to acquire Grubhub—which has a history of exploiting local restaurants through deceptive tactics and extortionate fees—marks a new low in pandemic profiteering. We cannot allow these corporations to monopolize food delivery, especially amid a crisis that is rendering American families and local restaurants more dependent than ever on these very services. This deal underscores the urgency for a merger moratorium, which I and several of my colleagues have been urging our caucus to support.

Pandemic profiteering rolls nicely off the tongue, and we’re sure to see that phrase much more over the next year or so. 

Grubhub shares jumped 29% Tuesday, the day the merger talks came to light, shown in the figure below. The Wall Street Journal reports companies are considering a deal that would value Grubhub stock at around 1.9 Uber shares, or $60-65 dollars a share, based on Thursday’s price.

But is that “pandemic profiteering?”

After Amazon announced its intended acquisition of Whole Foods, the grocer’s stock price soared by 27%. Rep. Cicilline voiced some convoluted concerns about that merger, but said nothing about profiteering at the time. Different times, different messaging.

Rep. Cicilline and others have been calling for a merger moratorium during the pandemic and used the Uber/Grubhub announcement as Exhibit A in his indictment of merger activity.

A moratorium would make things much easier for regulators. No more fighting over relevant markets, no HHI calculations, no experts debating SSNIPs or GUPPIs, no worries over consumer welfare, no failing firm defenses. Just a clear, brightline “NO!”

Even before the pandemic, it was well known that the food delivery industry was due for a shakeout. NPR reports, even as the business is growing, none of the top food-delivery apps are turning a profit, with one analyst concluding consolidation was “inevitable.” Thus, even if a moratorium slowed or stopped the Uber/Grubhub merger, at some point a merger in the industry will happen and the U.S. antitrust authorities will have to evaluate it.

First, we have to ask, “What’s the relevant market?” The government has a history of defining relevant markets so narrowly that just about any merger can be challenged. For example, for the scuttled Whole Foods/Wild Oats merger, the FTC famously narrowed the market to “premium natural and organic supermarkets.” Surely, similar mental gymnastics will be used for any merger involving food delivery services.

While food delivery has grown in popularity over the past few years, delivery represents less than 10% of U.S. food service sales. While Rep. Cicilline may be correct that families and local restaurants are “more dependent than ever” on food delivery, delivery is only a small fraction of a large market. Even a monopoly of food delivery service would not confer market power on the restaurant and food service industry.

No reasonable person would claim an Uber/Grubhub merger would increase market power in the restaurant and food service industry. But, it might convey market power in the food delivery market. Much attention is paid to the “Big Four”–DoorDash, Grubhub, Uber Eats, and Postmates. But, these platform delivery services are part of the larger food service delivery market, of which platforms account for about half of the industry’s revenues. Pizza accounts for the largest share of restaurant-to-consumer delivery.

This raises the big question of what is the relevant market: Is it the entire food delivery sector, or just the platform-to-consumer sector? 

Based on the information in the figure below, defining the market narrowly would place an Uber/Grubhub merger squarely in the “presumed to be likely to enhance market power” category.

  • 2016 HHI: <3,175
  • 2018 HHI: <1,474
  • 2020 HHI: <2,249 pre-merger; <4,153 post-merger

Alternatively, defining the market to encompass all food delivery would cut the platforms’ shares roughly in half and the merger would be unlikely to harm competition, based on HHI. Choosing the relevant market is, well, relevant.

The Second Measure data suggests that concentration in the platform delivery sector decreased with the entry of Uber Eats, but subsequently increased with DoorDash’s rising share–which included the acquisition of Caviar from Square.

(NB: There seems to be a significant mismatch in the delivery revenue data. Statista reports platform delivery revenues increased by about 40% from 2018 to 2020, but Second Measure indicates revenues have more than doubled.) 

Geoffrey Manne, in an earlier post points out “while national concentration does appear to be increasing in some sectors of the economy, it’s not actually so clear that the same is true for local concentration — which is often the relevant antitrust market.” That may be the case here.

The figure below is a sample of platform delivery shares by city. I added data from an earlier study of 2017 shares. In all but two metro areas, Uber and Grubhub’s combined market share declined from 2017 to 2020. In Boston, the combined shares did not change and in Los Angeles, the combined shares increased by 1%.

(NB: There are some serious problems with this data, notably that it leaves out the restaurant-to-consumer sector and assumes the entire platform-to-consumer sector is comprised of only the “Big Four.”)

Platform-to-consumer delivery is a complex two-sided market in which the platforms link, and compete for, both restaurants and consumers. Platforms compete for restaurants, drivers, and consumers. Restaurants have a choice of using multiple platforms or entering into exclusive arrangements. Many drivers work for multiple platforms, and many consumers use multiple platforms. 

Fundamentally, the rise of platform-to-consumer is an evolution in vertical integration. Restaurants can choose to offer no delivery, use their own in-house delivery drivers, or use a third party delivery service. Every platform faces competition from in-house delivery, placing a limit on their ability to raise prices to restaurants and consumers.

The choice of delivery is not an either-or decision. For example, many pizza restaurants who have their own delivery drivers also use platform delivery service. Their own drivers may serve a limited geographic area, but the platforms allow the restaurant to expand its geographic reach, thereby increasing its sales. Even so, the platforms face competition from in-house delivery.

Mergers or other forms of shake out in the food delivery industry are inevitable. Mergers will raise important questions about relevant product and geographic markets as well as competition in two-sided markets. While there is a real risk of harm to restaurants, drivers, and consumers, there is also a real possibility of welfare enhancing efficiencies. These questions will never be addressed with an across-the-board merger moratorium.

Eric Fruits is the Chief Economist at the International Center for Law & Economics

Last July, U.S. Congressman David N. Cicilline, who serves on the House Judiciary Antitrust Subcommittee, called for a hearing on Amazon’s proposed $13.7 billion acquisition of Whole Foods. The Congressman claimed he was not “taking a position on the legality” of Amazon’s attempt to purchase Whole Foods. In fact, his letter noted that “several leading antitrust scholars” had suggested the merger would be beneficial to consumers.

The letter, however, was not so much about the merger itself. Instead it was an attempt to convince the antitrust subcommittee to jump over analysis of relevant markets, prices, and consumer welfare and go straight to speculation about small business, labor markets, and income inequality. This sort of speculation is a key component of the populist antitrust movement.

Carl Shapiro, the government’s economics expert opposing the AT&T-Time Warner merger, seems skeptical of much of the antitrust populists’ Amazon rhetoric:

Simply saying that Amazon has grown like a weed, charges very low prices, and has driven many smaller retailers out of business is not sufficient. Where is the consumer harm?

On its face, there was nothing about the Amazon/Whole Foods merger that should have raised any antitrust concerns.

  1. Both Amazon and Whole Foods comprise a small share of the retail food market;
  2. Amazon’s size and consumer reach are not a barrier to entry of new firms or expansion of existing firms;
  3. Amazon’s prioritization of its own products is no different from the behavior of every other major grocer;
  4. Amazon in not an essential facility and there is no risk of foreclosure;
  5. Stock prices provided no meaningful information regarding the competitive impacts of the merger.

While one year is too soon to fully judge the competitive impacts of the Amazon-Whole Foods merger, nevertheless, it appears that much of the populist antitrust movement’s speculation that the merger would destroy competition and competitors and impoverish workers has failed to materialize.

Both Amazon and Whole Foods comprise a small share of the retail food market

Citing the Wall Street Journal, Cicilline’s letter noted that Amazon accounts for “more than half of online food orders through its Fresh, Prime and Prime Now services.” Also in the article, but missing from Cicilline’s letter, is the observation that (1) grocery delivery accounted for less than 2 percent of food retail sales in 2016 and (2) grocery delivery is concentrated in cities and surrounding suburbs.

Over the past year, the U.S. saw $5.2 trillion in retail sales, according to the Census Bureau.

  • Whole Foods has less than 1.5 percent of the food retail market, or about 0.2 percent of total retail sales.
  • About 20 percent of Whole Foods’ sales are prepared foods and 15 percent of its revenues come from its exclusive brands such as 365 Everyday Value.
  • Amazon accounts for one-tenth of one percent of U.S. grocery sales.

Viewed as a merger of two food retailers, Amazon’s purchase of Whole Foods would be characterized correctly as a horizontal merger. With each firm comprising a small portion of the retail food market, it should have been—and was—presumed the merger would not harm competition, nor would it result in consolidation of the retail sector.

Even critics of Amazon’s size and conduct had concluded the merger would likely benefit consumers. For example researchers at the Roosevelt Institute concluded, “Amazon will likely aim to expand the reach of the Whole Foods brand by lowering prices.” Indeed, soon after the merger closed, Whole Foods slashed the price of staples such as organic produce.

Amazon’s size and consumer reach are not a barrier to entry of new firms or expansion of existing firms

Cicilline’s letter speculated Amazon’s competitive advantages in terms of size, consumer reach, and ability to absorb losses could discourage innovation and entrance of firms in the areas of grocery and food delivery.

Since United States v. Grinnell Corp., antitrust policy has given safe harbor to firms that obtained market share “as a consequence of a superior product, business acumen, or historic accident.” In can easily be argued that Amazon’s consumer reach is due in a large part to offering a superior product in the form of a easy-to-use interface for both buyers and sellers, business acumen in the development of a superior system of distribution and logistics, as well as the historic accident of being an early entrant into the market during the dot-com boom.

In economics, a barrier to entry is a condition that makes the long run costs of a new entrant into a market higher than the long run costs of the existing firms in the market. The Ninth Circuit in Rebel Oil Co. v. Atlantic Richfield Co. defined entry barriers as:

“additional long run costs that were not incurred by incumbent firms but must be incurred by new entrants,” or “factors in the market that deter entry while permitting incumbent firms to earn monopoly returns.”

The court then identifies the main sources of entry barriers as:

  1. Legal license requirements;
  2. Control of an essential or superior resource;
  3. Entrenched buyer preferences for established brands;
  4. Capital market evaluations imposing higher capital costs on new entrants; and,
  5. Economies of scale, in some situations.

The entry and growth of Instacart, Uber Eats, and Postmates, are evidence that Amazon’s size, consumer reach, and ability to absorb losses has not presented any barriers to entry of new firms or the expansion of existing firms into the retail food delivery business.

The Wall Street Journal reports that since the merger, several grocers have added online ordering while hundreds of health food stores have seen increased dollar and unit sales from a year ago. Trader Joe’s and Aldi have also experienced strong sales growth since the merger.

Amazon’s prioritization of its own products is no different from the behavior of every other major grocer

Cicilline’s letter asserted that Amazon’s purchase of Whole Foods would enable Amazon to prioritize its products and services over competitors. Critics of Amazon’s behavior claim such prioritization was already occurring before the merger. Cicilline’s letter provided no mechanism by which the merger in and of itself would increase such prioritization, or even if such an increase could be measured. Even so, the letter fails to address the key issue of whether prioritization is an anticompetitive act. If it is, then just about every major food retailer in the U.S. is behaving anticompetitively.

  • In 1997, Whole Foods launched its 365 Everyday Value line of products. Five years later, it launched its 365 Organic Everyday Value line. These products are given prominent shelf space and are often featured in promotional “end caps” in Whole Foods stores. In 2015, Whole Foods introduced 365 by Whole Foods Market, a concept store based on the 365 Everyday Value brand. The pre-merger photo below shows how Whole Foods prioritized its own brands within its stores, with placement at eye-level and in promotional islands.Prioritization-365-Everyday-ValuePrioritization-365-Everyday-Value-oils
  • Costco provides prominent shelf space to its own Kirkland branded products. Most of the products sold in Trader Joe’s stores carry the company’s private label.
  • Kroger has a number of private label brands, including Private Selection and Simple Truth as well as value brands such as Psst and Heritage Farms. Kroger frequently promotes Private Selection and Simple Truth with advertising, coupons, and other promotions including prominent shelf space.

Consumers quickly learn whether store-brand “fruit rings” are a better value than Kellogg’s Froot Loops. Promotional activities and prioritization may nudge the marginal buyer and entice a first purchase, but cannot fool consumers over the long run.

Amazon in not an essential facility and there is no risk of foreclosure

Cicilline’s letter cited Gene Kimmelman, the President of Public Knowledge, to allude that this specific merger would allow Amazon to “foreclose” competition.

In antitrust, concerns about foreclosure are tied to the concept of an essential facility. For these concerns to be valid, access to Amazon’s platform must be essential — without access, competitors would be unable to sell food and/or unable to sell food online. In addition to being essential, there must be evidence of foreclosure — competing sellers are kept off of the essential platform.

A key concept in antitrust economics is that of substitutability: whether one good or service is reasonably interchangeable with another. If there are reasonable substitutes for sales through Amazon’s platform, then the platform is not an essential facility. There are many reasonable substitutes for Amazon’s platform, including a network of retail stores and a standalone website with distribution through USPS, UPS, FedEx, and other delivery services. Indeed, Whole Foods and other grocers had and have operated profitably without selling through Amazon’s platform. Kroger provides delivery of groceries ordered online via Instacart and grocery pickup with its own service, ClickList. Safeway and Albertsons also offer home delivery of groceries ordered online. It the face of these observations, it is obvious that Amazon’s platform is not an essential facility. Thus even if Amazon keeps rival products off its platform, these competitors would not be foreclosed from selling their products.

Those who argue that Amazon is an essential facility seem to be arguing the concept of essential facility is a matter of degree: If Amazon provided more favorable terms to sellers on its platform, those sellers would would earn more profits than than they currently receive. This flies in the face of the sine qua non of the essential facility doctrine–that the facility is essential. Amazon may be a useful platform to sell products. It may be a profitable platform. But, it is not an essential platform.

No evidence that Amazon or Whole Foods pay lower wages

Cicilline’s letter also seemed to suggest that the merger would result in reduced employment and lower wages. The letter claimed that “mounting economic research” indicates that the U.S. has experienced “decades of consolidation” and that such consolidation has led to a monopsony power in labor markets leading to lower employee wages.

The letter’s reasoning echos conclusions of a report published by the Institute for Local Self-Reliance (ILSR), an advocacy group for “community-rooted” enterprise.

As pointed out by Geoffrey Manne and Jennifer Maclean:

Cobbling together statistics, anecdotes, and assumptions, the report formulates logical fallacies about Amazon’s effect on the retail job market. The title itself, Amazon’s Stranglehold: How the Company’s Tightening Grip is Stifling Competition, Eroding Jobs, and Threatening Communities, conjures a dystopian fever dream.

The ILSR report claims that “Amazon’s tightening hold on our economy…, increasing dominance …, and ability to crush smaller rivals and block new firms from entering markets … is hobbling job growth [and] propelling economic inequality.” At the same time, the report ignores how efficiencies provided by Amazon’s e-commerce platform may actually have beneficial effects on employment—and it fails to address whether, when retail jobs are negatively affected, there might be offsetting gains in other areas, like lower prices.

Manne and Maclean indicate if e-commerce platforms continue to appeal to buyers and sellers, this may mean fewer traditional retail jobs —or it could simply mean a shift in the types of activities performed by people in retail occupations. It might also mean more jobs in manufacturing, transportation, advertising, coding, and logistics, to name a few.

In fact, information from the Bureau of Labor Statistics shows that employment in warehousing and storage has grown by more than 50 percent since the pre-recession peak. Over the same period, average hourly earnings have increased by more than 20 percent. Over the past year, average hourly earnings for these workers have grown at approximately the same rate as the average across all employees.

Stock prices provided no meaningful information regarding the competitive impacts of the Amazon/Whole Foods merger

Cicilline’s letter noted that Blue Apron’s initial public offering price was reduced by a third following the announcement of the Amazon/Whole Foods merger. However, two weeks prior to the merger, market observers were predicting Blue Apron’s IPO would be a disappointment. A Forbes contributor provided three reasons investors should “gag” on Blue Apron’s IPO:  (1) unprofitable growth with costs growing faster than revenues, (2) competition from rivals including HelloFresh, Sun Basket, and Purple Carrot, and (3) weak shareholder protections associated with the two founders retaining a large portion of the voting shares of stock. Since the Amazon-Whole Foods merger, Blue Apron’s new, automated facility failed to ramp up as planned, resulting in late orders, missing ingredients, and higher costs, according to the Wall Street Journal.

Cicilline’s letter noted that the announcement that Amazon would purchase Whole Foods had a “similar effect” on what he describes as the “traditional retail grocery market.” The letter identifies Walmart, Kroger, Costco, and Target as Amazon’s competitors in this market. In this way, Cicilline appears to abandon the FTC’s view that Whole Foods operates in the “premium natural and organic supermarkets market.” Instead, the letter implicitly concludes, Whole Foods competes in a larger market that includes grocery stores, supercenters, and warehouse clubs.

Missing from Cicilline’s letter is the observation that the day before the Amazon/Whole Foods merger was announced, Kroger announced that it reduced its profit outlook by 10 percent. The same day—one day before the merger announcement–German grocer Lidl announced the locations of the first 10 stores to open in the U.S. More than a month before the Whole Foods purchase was announced, discount grocery chain Aldi described plans to invest $5 billion to open nearly 900 stores and remodel hundreds of other stores throughout the U.S. The entry of new competitors and expansion of existing competitors is at odds with speculation of consolidation in the retail grocery sector. Since the merger, Kroger’s share price has increased more that double the rate of growth of the Dow Jones Industrial Average.

One year is too soon to judge the competitive impacts of the Amazon-Whole Foods merger. Nevertheless, it appears that much of the populist antitrust movement’s speculation that the merger would destroy competition and competitors and impoverish workers has failed to materialize.


Hardly a day goes by without news of further competition-related intervention in the digital economy. The past couple of weeks alone have seen the European Commission announce various investigations into Apple’s App Store (here and here), as well as reaffirming its desire to regulate so-called “gatekeeper” platforms. Not to mention the CMA issuing its final report regarding online platforms and digital advertising.

While the limits of these initiatives have already been thoroughly dissected (e.g. here, here, here), a fundamental question seems to have eluded discussions: What are authorities trying to achieve here?

At first sight, the answer might appear to be extremely simple. Authorities want to “bring more competition” to digital markets. Furthermore, they believe that this competition will not arise spontaneously because of the underlying characteristics of digital markets (network effects, economies of scale, tipping, etc). But while it may have some intuitive appeal, this answer misses the forest for the trees.

Let us take a step back. Digital markets could have taken a vast number of shapes, so why have they systematically gravitated towards those very characteristics that authorities condemn? For instance, if market tipping and consumer lock-in are so problematic, why is it that new corners of the digital economy continue to emerge via closed platforms, as opposed to collaborative ones? Indeed, if recent commentary is to be believed, it is the latter that should succeed because they purportedly produce greater gains from trade. And if consumers and platforms cannot realize these gains by themselves, then we should see intermediaries step into the breach – i.e. arbitrage. This does not seem to be happening in the digital economy. The naïve answer is to say that this is precisely the problem, the harder one is to actually understand why.

To draw a parallel with evolution, in the late 18th century, botanists discovered an orchid with an unusually long spur (above). This made its nectar incredibly hard to reach for insects. Rational observers at the time could be forgiven for thinking that this plant made no sense, that its design was suboptimal. And yet, decades later, Darwin conjectured that the plant could be explained by a (yet to be discovered) species of moth with a proboscis that was long enough to reach the orchid’s nectar. Decades after his death, the discovery of the xanthopan moth proved him right.

Returning to the digital economy, we thus need to ask why the platform business models that authorities desire are not the ones that emerge organically. Unfortunately, this complex question is mostly overlooked by policymakers and commentators alike.

Competition law on a spectrum

To understand the above point, let me start with an assumption: the digital platforms that have been subject to recent competition cases and investigations can all be classified along two (overlapping) dimensions: the extent to which they are open (or closed) to “rivals” and the extent to which their assets are propertized (as opposed to them being shared). This distinction borrows heavily from Jonathan Barnett’s work on the topic. I believe that by applying such a classification, we would obtain a graph that looks something like this:

While these classifications are certainly not airtight, this would be my reasoning:

In the top-left quadrant, Apple and Microsoft, both operate closed platforms that are highly propertized (Apple’s platform is likely even more closed than Microsoft’s Windows ever was). Both firms notably control who is allowed on their platform and how they can interact with users. Apple notably vets the apps that are available on its App Store and influences how payments can take place. Microsoft famously restricted OEMs freedom to distribute Windows PCs as they saw fit (notably by “imposing” certain default apps and, arguably, limiting the compatibility of Microsoft systems with servers running other OSs). 

In the top right quadrant, the business models of Amazon and Qualcomm are much more “open”, yet they remain highly propertized. Almost anyone is free to implement Qualcomm’s IP – so long as they conclude a license agreement to do so. Likewise, there are very few limits on the goods that can be sold on Amazon’s platform, but Amazon does, almost by definition, exert a significant control on the way in which the platform is monetized. Retailers can notably pay Amazon for product placement, fulfilment services, etc. 

Finally, Google Search and Android sit in the bottom left corner. Both of these services are weakly propertized. The Android source code is shared freely via an open source license, and Google’s apps can be preloaded by OEMs free of charge. The only limit is that Google partially closes its platform, notably by requiring that its own apps (if they are pre-installed) receive favorable placement. Likewise, Google’s search engine is only partially “open”. While any website can be listed on the search engine, Google selects a number of specialized results that are presented more prominently than organic search results (weather information, maps, etc). There is also some amount of propertization, namely that Google sells the best “real estate” via ad placement. 


Readers might ask what is the point of this classification? The answer is that in each of the above cases, competition intervention attempted (or is attempting) to move firms/platforms towards more openness and less propertization – the opposite of their original design.

The Microsoft cases and the Apple investigation, both sought/seek to bring more openness and less propetization to these respective platforms. Microsoft was made to share proprietary data with third parties (less propertization) and open up its platform to rival media players and web browsers (more openness). The same applies to Apple. Available information suggests that the Commission is seeking to limit the fees that Apple can extract from downstream rivals (less propertization), as well as ensuring that it cannot exclude rival mobile payment solutions from its platform (more openness).

The various cases that were brought by EU and US authorities against Qualcomm broadly sought to limit the extent to which it was monetizing its intellectual property. The European Amazon investigation centers on the way in which the company uses data from third-party sellers (and ultimately the distribution of revenue between them and Amazon). In both of these cases, authorities are ultimately trying to limit the extent to which these firms propertize their assets.

Finally, both of the Google cases, in the EU, sought to bring more openness to the company’s main platform. The Google Shopping decision sanctioned Google for purportedly placing its services more favorably than those of its rivals. And the Android decision notably sought to facilitate rival search engines’ and browsers’ access to the Android ecosystem. The same appears to be true of ongoing investigations in the US.

What is striking about these decisions/investigations is that authorities are pushing back against the distinguishing features of the platforms they are investigating. Closed -or relatively closed- platforms are being opened-up, and firms with highly propertized assets are made to share them (or, at the very least, monetize them less aggressively).

The empty quadrant

All of this would not be very interesting if it weren’t for a final piece of the puzzle: the model of open and shared platforms that authorities apparently favor has traditionally struggled to gain traction with consumers. Indeed, there seem to be very few successful consumer-oriented products and services in this space.

There have been numerous attempts to introduce truly open consumer-oriented operating systems – both in the mobile and desktop segments. For the most part, these have ended in failure. Ubuntu and other Linux distributions remain fringe products. There have been attempts to create open-source search engines, again they have not been met with success. The picture is similar in the online retail space. Amazon appears to have beaten eBay despite the latter being more open and less propertized – Amazon has historically charged higher fees than eBay and offers sellers much less freedom in the way they sell their goods. This theme is repeated in the standardization space. There have been innumerable attempts to impose open royalty-free standards. At least in the mobile internet industry, few if any of these have taken off (5G and WiFi are the best examples of this trend). That pattern is repeated in other highly-standardized industries, like digital video formats. Most recently, the proprietary Dolby Vision format seems to be winning the war against the open HDR10+ format. 

This is not to say there haven’t been any successful ventures in this space – the internet, blockchain and Wikipedia all spring to mind – or that we will not see more decentralized goods in the future. But by and large firms and consumers have not yet taken to the idea of open and shared platforms. And while some “open” projects have achieved tremendous scale, the consumer-facing side of these platforms is often dominated by intermediaries that opt for much more traditional business models (think of Coinbase and Blockchain, or Android and Linux).

An evolutionary explanation?

The preceding paragraphs have posited a recurring reality: the digital platforms that competition authorities are trying to to bring about are fundamentally different from those that emerge organically. This begs the question: why have authorities’ ideal platforms, so far, failed to achieve truly meaningful success at consumers’ end of the market? 

I can see at least three potential explanations:

  1. Closed/propertized platforms have systematically -and perhaps anticompetitively- thwarted their open/shared rivals;
  2. Shared platforms have failed to emerge because they are much harder to monetize (and there is thus less incentive to invest in them);
  3. Consumers have opted for closed systems precisely because they are closed.

I will not go into details over the merits of the first conjecture. Current antitrust debates have endlessly rehashed this proposition. However, it is worth mentioning that many of today’s dominant platforms overcame open/shared rivals well before they achieved their current size (Unix is older than Windows, Linux is older than iOs, eBay and Amazon are basically the same age, etc). It is thus difficult to make the case that the early success of their business models was down to anticompetitive behavior.

Much more interesting is the fact that options (2) and (3) are almost systematically overlooked – especially by antitrust authorities. And yet, if true, both of them would strongly cut against current efforts to regulate digital platforms and ramp-up antitrust enforcement against them. 

For a start, it is not unreasonable to suggest that highly propertized platforms are generally easier to monetize than shared ones (2). For example, open-source platforms often rely on complementarities for monetization, but this tends to be vulnerable to outside competition and free-riding. If this is true, then there is a natural incentive for firms to invest and innovate in more propertized environments. In turn, competition enforcement that limits a platforms’ ability to propertize their assets may harm innovation.

Similarly, authorities should at the very least reflect on whether consumers really want the more “competitive” ecosystems that they are trying to design (3)

For instance, it is striking that the European Commission has a long track record of seeking to open-up digital platforms (the Microsoft decisions are perhaps the most salient example). And yet, even after these interventions, new firms have kept on using the very business model that the Commission reprimanded. Apple tied the Safari browser to its iPhones, Google went to some length to ensure that Chrome was preloaded on devices, Samsung phones come with Samsung Internet as default. But this has not deterred consumers. A sizable share of them notably opted for Apple’s iPhone, which is even more centrally curated than Microsoft Windows ever was (and the same is true of Apple’s MacOS). 

Finally, it is worth noting that the remedies imposed by competition authorities are anything but unmitigated successes. Windows XP N (the version of Windows that came without Windows Media Player) was an unprecedented flop – it sold a paltry 1,787 copies. Likewise, the internet browser ballot box imposed by the Commission was so irrelevant to consumers that it took months for authorities to notice that Microsoft had removed it, in violation of the Commission’s decision. 

There are many reasons why consumers might prefer “closed” systems – even when they have to pay a premium for them. Take the example of app stores. Maintaining some control over the apps that can access the store notably enables platforms to easily weed out bad players. Similarly, controlling the hardware resources that each app can use may greatly improve device performance. In other words, centralized platforms can eliminate negative externalities that “bad” apps impose on rival apps and consumers. This is especially true when consumers struggle to attribute dips in performance to an individual app, rather than the overall platform. 

It is also conceivable that consumers prefer to make many of their decisions at the inter-platform level, rather than within each platform. In simple terms, users arguably make their most important decision when they choose between an Apple or Android smartphone (or a Mac and a PC, etc.). In doing so, they can select their preferred app suite with one simple decision. They might thus purchase an iPhone because they like the secure App Store, or an Android smartphone because they like the Chrome Browser and Google Search. Furthermore, forcing too many “within-platform” choices upon users may undermine a product’s attractiveness. Indeed, it is difficult to create a high-quality reputation if each user’s experience is fundamentally different. In short, contrary to what antitrust authorities seem to believe, closed platforms might be giving most users exactly what they desire. 

To conclude, consumers and firms appear to gravitate towards both closed and highly propertized platforms, the opposite of what the Commission and many other competition authorities favor. The reasons for this trend are still misunderstood, and mostly ignored. Too often, it is simply assumed that consumers benefit from more openness, and that shared/open platforms are the natural order of things. This post certainly does not purport to answer the complex question of “the origin of platforms”, but it does suggest that what some refer to as “market failures” may in fact be features that explain the rapid emergence of the digital economy. Ronald Coase said this best when he quipped that economists always find a monopoly explanation for things that they fail to understand. The digital economy might just be the latest in this unfortunate trend.

Last month the Wall Street Journal raised the specter of an antitrust challenge to the proposed Jos. A. Bank/Men’s Warehouse merger.

Whether a challenge is forthcoming appears to turn, of course, on market definition:

An important question in the FTC’s review will be whether it believes the two companies compete in a market that is more specialized than the broad men’s apparel market. If the commission concludes the companies do compete in a different space than retailers like Macy’s, Kohl’s and J.C. Penney, then the merger partners could face a more-difficult government review.

You’ll be excused for recalling that the last time you bought a suit you shopped at Jos. A. Bank and Macy’s before making your purchase at Nordstrom Rack, and for thinking that the idea of a relevant market comprising Jos. A. Bank and Men’s Warehouse to the exclusion of the others is absurd.  Because, you see, as the article notes (quoting Darren Tucker),

“The FTC sometimes segments markets in ways that can appear counterintuitive to the public.”

“Ah,” you say to yourself. “In other words, if the FTC’s rigorous econometric analysis shows that prices at Macy’s don’t actually affect pricing decisions at Men’s Warehouse, then I’d be surprised, but so be it.”

But that’s not what he means by “counterintuitive.” Rather,

The commission’s analysis, he said, will largely turn on how the companies have viewed the market in their own ordinary-course business documents.

According to this logic, even if Macy’s does exert pricing pressure on Jos. A Bank, if Jos. A. Bank’s business documents talk about Men’s Warehouse as its only real competition, or suggest that the two companies “dominate” the “mid-range men’s apparel market,” then FTC may decide to challenge the deal.

I don’t mean to single out Darren here; he just happens to be who the article quotes, and this kind of thinking is de rigeur.

But it’s just wrong. Or, I should say, it may be descriptively accurate — it may be that the FTC will make its enforcement decision (and the court would make its ruling) on the basis of business documents — but it’s just wrong as a matter of economics, common sense, logic and the protection of consumer welfare.

One can’t help but think of the Whole Foods/Wild Oats merger and the FTC’s ridiculous “premium, natural and organic supermarkets” market. As I said of that market definition:

In other words, there is a serious risk of conflating a “market” for business purposes with an actual antitrust-relevant market. Whole Foods and Wild Oats may view themselves as operating in a different world than Wal-Mart. But their self-characterization is largely irrelevant. What matters is whether customers who shop at Whole Foods would shop elsewhere for substitute products if Whole Food’s prices rose too much. The implicit notion that the availability of organic foods at Wal-Mart (to say nothing of pretty much every other grocery store in the US today!) exerts little or no competitive pressure on prices at Whole Foods seems facially silly.

I don’t know for certain what an econometric analysis would show, but I would indeed be shocked if a legitimate economic analysis suggested that Jos. A. Banks and Men’s Warehouse occupied all or most of any relevant market. For the most part — and certainly for the marginal consumer — there is no meaningful difference between a basic, grey worsted wool suit bought at a big department store in the mall and a similar suit bought at a small retailer in the same mall or a “warehouse” store across the street. And the barriers to entry in such a market, if it existed, would be insignificant. Again, what I said of Whole Foods/Wild Oats is surely true here, too:

But because economically-relevant market definition turns on demand elasticity among consumers who are often free to purchase products from multiple distribution channels, a myopic focus on a single channel of distribution to the exclusion of others is dangerous.

Let’s hope the FTC gets it right this time.

In what has become an annual affair, around this time of the year, I like to make the case for law students to take antitrust. Each year, the post is edited and tweaked a little bit.  So, without further ado, here is this year’s edition of “Why Take Antitrust?”

As the start of the new academic year inches closer, and students are deciding what courses to take, I thought I’d give a little plug to antitrust law. I’ve seen enrollment in antitrust courses vary dramatically over the past 10 years or so since I was a student and now as a professor. I certainly know the three-pronged case against taking antitrust: “its not a bar course,” “you have to know a bunch of economics, right?”, and “its really difficult.”  But I hear this question from students frequently and I thought I’d share my typical answer to the titular question here:

First, antitrust is flat out interesting stuff.  We’re talking cartel arrangements in rooms filled with smoke, complex price-fixing arrangements,  rent-seeking and use of government restrictions to exclude rivals, and all forms of cutthroat competition between firms to stay alive in a competitive marketplace.  You know, movie material.  For some reason antitrust has earned the reputation of being a “boring” class for specialists who are interested in economics.  Wrong, wrong, wrong.  Sure, antitrust will force you to learn some economics because the law itself has incorporated economic concepts (see, e.g. the Merger Guidelines).  But this is a feature, not a bug.  Economics is a tool that can help one understand how the world works and provide some interesting insight on business practices that we observe in the world and impact us everyday at the gas pump, the grocery store, the computers we all work on, and just about everywhere else.  Supply and demand graphs might be boring to some, and I don’t mean to suggest that antitrust is for everyone all the time, but its fun to think about questions like how the Sirius-XM merger will impact prices, whether premium, natural and organic supermarkets are a relevant market (the issue in Whole Foods/ Wild Oats), and the economic and business organization of the National Football League, and just about every business venture involving Google, Microsoft, Apple and Yahoo.

Second, antitrust law is become an increasingly important component of the international business landscape.  Take a look at this photo (the countries in red have antitrust laws on the books). Over 100 countries currently have passed antitrust laws (see here). Having at least a passing knowledge of antitrust is increasingly an important asset for corporate lawyers generally.  With antitrust enforcement now in India, China, Hong Kong, Singapore, and the EU-US antitrust convergence/divergence debate growing in importance, challenging legal and economic debates will continue to rage in the antitrust space for years to come (Between you and I, these changing market conditions have also increased demand for antitrust law professors and economists in recent years, not to mention — and most importantly, for antitrust lawyers).   After a slowdown for a few years with the economy, some casual empiricism suggests that merger activity is starting to pick up, antitrust and consumer protection litigation is increasing, and antitrust practices are going to need to reload.

Third, the bar exam issue.  While its true that antitrust law is not going to help you on the bar, neither are a bunch of interesting courses. And one shouldn’t conflate inclusion on the bar exam with general importance in terms or, of course, intellectual interest (which so far as I can tell, is still an acceptable reason for enrolling in courses).  Besides, there is at least some evidence that courseload choices have little to do with bar passage rates.  On top of all that, in light of #2, it is a good time to pursue a career as an antitrust lawyer.

If you are a law student — and haven’t thought about adding antitrust to your dossier — give it some thought.

Being a “glass is half-full” type of guy, I figured there was no way the D.C. Circuit’s decision on Whole Foods’ petition for rehearing en banc could turn out poorly: Either the court would grant the motion and correct the panel’s mistakes, or the court would deny the motion, setting up an attractive opportunity for the Supreme Court, which hasn’t decided a significant merger case since 1974 and badly needs to update its doctrine (see, e.g., Brown Shoe, upon which the D.C. Circuit heavily relied in Whole Foods).

It seems my optimism was unwarranted. On November 21, the July 29 panel decision was amended and reissued so that Judge Tatel no longer joins Judge Brown’s former majority opinion. Although the two judges agree that the FTC did present evidence that could establish a separate antitrust market of “premium natural and organic supermarkets” (“PNOS”) and that the district court’s denial of the FTC’s preliminary injunction of the Whole Foods/Wild Oats merger must therefore be reversed (and remanded for a weighing of equities), their grounds for reaching those conclusions differ. There is thus no majority opinion from the panel (the third judge, Judge Kavanaugh, dissented), and the other D.C. Circuit judges apparently reasoned that rehearing en banc would therefore be unwarranted. (See the statement of Judges Sentelle and Ginsburg here.)

The good news is that neither of the two opinions in favor of the FTC commanded a majority of the panel, so neither stands as authoritative precedent. That’s cold comfort, though, for the panel holding has precedential effect, and, under the Marks rule, any common principles contained in the Brown and Tatel opinions and necessary to their conclusions will have such effect. Moreover, so few published decisions address merger challenges that those opinions — regardless of precedential effect — are likely to have substantial influence. That’s highly unfortunate, for both opinions contain fundamental mistakes, as I elaborate below the fold. Continue Reading…

The witch hunt is over.

Last evening, the FTC announced that it would drop its antitrust action against high-end grocer Whole Foods in exchange for the chain’s agreement to sell 32 stores and to give up the rights to Wild Oats’ name. FTC Chairman Jon Leibowitz proclaimed that “[a]s a result of this settlement, American consumers will see more choices and lower prices for organic foods” — you know, those ubiquitous food products that are available at, among other places, Wal-Mart and that the FTC insisted were not the focus of its Whole Foods challenge, which was purportedly aimed at protecting competition in the provision of grocery store formats, not particular types of products. Mr. Leibowitz also announced that the settlement of this surreal antitrust action “allows the FTC to shift resources to other important matters.” Can’t wait to see what those will be.

It’ll be interesting to see what happens to Whole Foods’ stock price now that it’s no longer a monopolist in the market for “premium natural and organic supermarkets.” Absent the ability to earn supracompetitive profits as a monopolist — a power that, according to the FTC, it has had since it consummated the Wild Oats merger in August 2007 — its expected free cash flows will certainly drop, as will its stock price. Maybe, though, it will actually fare better once it gives up its PNOS monopoly. Indeed, the company’s stock price (reflective of expected profits) has been badly battered since the company became a monopolist, falling from $44.26 when the monopoly was attained, to around $22 just before the D.C. Circuit initially reversed the trial court’s decision permitting the merger to proceed (July 2008), to $10-12 in the last few weeks (see chart here). While the overall stock market has fallen by about one half during this same period, Whole Foods’ drop is substantially steeper, and it began soon after Whole Foods attained its monopoly position, well before broader market’s drop. Maybe returning competition to the company’s market will actually improve the company’s lot.

Or maybe, as my co-blogger Geoff so eloquently put it, the notion of a separate market for premium natural and organic supermarkets is bulls**t. If that’s the case, then Whole Foods hasn’t been a monopolist, able to earn supracompetitive profits, since August 2007. If Whole Foods has actually been competing in a broader market, one that would include, say, this Safeway Lifestyle Store (and gazillions of other conventional grocery stores like it), then it’s battered stock price probably just suggests that consumers are turning away from its high-priced offerings and toward the same products that are available at the conventional grocery stores at which the vast majority of Whole Foods shoppers also shop.

So let’s see — which story makes more sense: that attaining a monopoly tends to drive one’s profits (and thus one’s stock price) downward, or that Whole Foods never actually had a monopoly because it faced vigorous competition from conventional grocery stores? Tough one.

Oh well. I’ll give the FTC some credit for tenacity. It’s pretty impressive that the Commissioners were willing to stand their ground in the face of evidence that Whole Foods wasn’t earning monopoly profits, that numerous grocery retailers are moving toward the Whole Foods format, that there are obvious economies of scale in grocery retailing (so that the combined Whole Foods/Wild Oats would have lower per unit costs), and that Whole Foods’ customers typically cross-shop at conventional grocery stores and could thus easily respond to any merger-induced increase in Whole Foods’ prices. (See here.) Why bother with real-world facts when you’ve got a handful of inflammatory emails?

So congrats on the victory, guys (and Ms. Jones Harbour). On behalf of the nation’s grocery shoppers, I’d like to thank you for protecting us from a premium natural and organic monopolist (and we just won’t worry about any economies of scale Whole Foods will sacrifice in order to comply with this consent decree).

On a personal note, I’d like to thank you for making my own job so much easier.

Thom kicked off discussion of the FTC and Whole Foods’ settlement on a critical note:

It’s pretty impressive that the Commissioners were willing to stand their ground in the face of evidence that Whole Foods wasn’t earning monopoly profits, that numerous grocery retailers are moving toward the Whole Foods format, that there are obvious economies of scale in grocery retailing (so that the combined Whole Foods/Wild Oats would have lower per unit costs), and that Whole Foods’ customers typically cross-shop at conventional grocery stores and could thus easily respond to any merger-induced increase in Whole Foods’ prices. (See here.) Why bother with real-world facts when you’ve got a handful of inflammatory emails?

So congrats on the victory, guys (and Ms. Jones Harbour). On behalf of the nation’s grocery shoppers, I’d like to thank you for protecting us from a premium natural and organic monopolist (and we just won’t worry about any economies of scale Whole Foods will sacrifice in order to comply with this consent decree).

Geoff hasn’t pulled many punches either.  But what about the settlement itself?

Marc Schildkraut (Howrey) is quoted with some interesting comments on the WSJ Law Blog highlighting some interesting features of the settlement and concluding that “neither side really had a complete victory”:

For starters, he says, the structure of the deal doesn’t guarantee that a Wild Oats-type competitor to Whole Foods will emerge. The deal doesn’t require the trustee in charge of selling the earmarked stores to sell to a single buyer. “The FTC didn’t insist that the trustee sell to a chain,” he says. “That could mean that a lot of the stores go to single-store operators, which isn’t always the best way to guarantee competition.”

Secondly, while Whole Foods has to give up its intellectual property rights in Wild Oats, there’s no guarantee that the buyer of the IP rights won’t be a smaller operator than Wild Oats. So the value of the Wild Oats name could ultimately fall quite a bit.

Lastly, Schildkraut questions whether the trustee will even find buyers for the stores, especially those that are already closed. “And they won’t necessarily come cheap,” he adds. “The new buyers will in most cases have to pick up existing leases. These aren’t pennies-on-the dollar deals.”

So does Schildkraut think it was a total win for Whole Foods? Not necessarily. “I’m sure they would have preferred not to go through two years of litigation and preferred not to divest the stores and the Wild Oats name and preferred not to have the competition that the FTC will try to generate,” he says. “But it could have been a lot worse.”

Interesting.  The critique brings to mind Elzinga’s classic study, The Antimerger Law: Pyrrhic Victories? 12 J. LAW & ECON. 43 (1969), concluding that pre-HSR were not effective in restoring pre-merger competition.  But see the FTC’s own Divestiture Study in the late 1990’s (in which I participated one summer as a Bureau of Economics intern in 1995!) concluding that the FTC had become more effective in designing divestitures by 1990 or so. Perhaps in the spirit of the Commission’s recent interesting self-study, it will do a rigorous evaluation of post-merger competition resulting from this settlement.

I’m confident that my esteemed colleagues, who have far more expertise about the merger guidelines than I, will offer all sorts of terrific ideas for revising the substance of the guidelines. While I would certainly advocate a few specific changes (i.e., revise the HHI thresholds to reflect actual agency practice), I’ll leave the devilish details to the experts and concentrate on one “modest” (quite literally!) revision:

I would encourage the antitrust agencies to clarify, within the actual text of the guidelines (i.e., not in mere commentary like that issued in 2006), that the guidelines are not the law, should not be treated as such by the courts, do not exhaustively specify when a merger will or will not be anticompetitive, and should be flexibly implemented to account for case-specific factors that cannot be specified ex ante. In short, the guidelines should explicitly acknowledge that the ultimate question in any horizontal merger case requires the application of a standard, not a rule.

A rule is a legal mandate that entails an advance determination of what conduct is permissible and leaves only factual issues for the adjudicator (e.g., “Do not drive faster than 65 m.p.h.”). A standard, by contrast, is a mandate that leaves to the adjudicator both factual issues and some judgment about what conduct is permissible (e.g., “Do not drive at an excessive speed.”). Rules provide superior guidance to the governed and the adjudicator, but they can misfire if over- or underinclusive, and they therefore require ex ante specification of all factors that might be relevant to a sound decision. Standards provide less guidance, but they are more likely to generate a correct adjudication in any particular case, for the adjudicator is free to account for unforeseen, case-specific quirks.

The legal question at issue in a horizontal merger case — “might the business combination substantially lessen competition or tend to create a monopoly?” — requires the ultimate adjudicator to apply a standard, not a rule. It is simply impossible to specify ex ante all the considerations relevant to answering this question. Accordingly, to the extent the merger guidelines are viewed by courts as rules for separating pro- from anticompetitive mergers, they are bound to generate incorrect adjudications when they inevitably misfire.

Now I realize the merger guidelines, as currently drafted, do not purport to bind courts and do state that their “mechanical application . . . may provide misleading answers” and that they should be applied “reasonably and flexibly to the particular facts and circumstances of each proposed merger.” I don’t believe this is enough. The fact is, generalist judges asked to resolve the complicated economic disputes in a horizontal merger case are reluctant to veer beyond the guidelines’ prescribed analysis and, as a practical matter, treat the guidelines as though they are, in fact, the law. In the D.C. Circuit’s Whole Foods decision, for example, the majority chided the dissent for having incorrectly applied the merger guidelines. Given that the merger guidelines simply cannot exhaustively specify all the considerations relevant to evaluating a proposed merger, courts’ treatment of them as the final word implies that relevant considerations will get left out.

Take Whole Foods for example. A key fact in that case was that the vast majority of shoppers who buy from so-called “premium natural and organic supermarkets” (PNOS) also shop regularly at conventional grocers. Thus, if a combined Whole Foods/Wild Oats were to raise prices on items available at conventional supermarkets, buyers would likely just start buying those items on their conventional grocer outings rather than on their PNOS outings. Unfortunately, nothing in the merger guidelines calls for a consideration of “cross-shopping,” and this important argument therefore got short shrift. Had the guidelines explicitly stated: “This is not the law. We can’t state up front all relevant considerations. Courts should credit plausible arguments based on factors not stated herein,” this important argument might have gotten the attention it deserved.

Or take considerations relevant to dynamic (Schumpeterian) competition. While I am sympathetic to the Sidak/Teece arguments that the merger guidelines should account for dynamic competition concerns, I simply can’t figure out how one would write a rule that would do that. How can we specify ex ante all the considerations that are relevant to whether a business merger will enhance dynamic, though not necessarily static, competition? There may be an answer to that question — and I much look forward to hearing from Sidak and Teece on this issue — but I don’t know what it is. An alternative approach would be to free up the ultimate adjudicators — the courts — to account for dynamic competition considerations by disabusing them of the notion that they must treat the merger guidelines as law. Parties could then articulate their dynamic competition arguments on a case-by-case basis, and the courts could credit those that appear to have merit.

The main objectives of the merger guidelines, I assume, are (1) to deter combination attempts that would harm competition (i.e., those that would clearly be subject to challenge); (2) to avoid deterring combinations that would not harm competition (i.e., those within a safe harbor); and (3) to assure some consistency across the regulatory agencies and across administrations. These objectives could still be attained — and greater accuracy in outcome could be achieved — if the merger guidelines specified that the ultimate inquiry involves application of a standard rather than a rule.

An article from yesterday’s W$J sheds some light on the organic community’s anger over Wal-Mart’s decision to begin selling organic products. A few weeks ago, I accused Wal-Mart’s critics of wanting to keep price-sensitive consumers out of the organic “club.� The article in yesterday’s Journal suggests that that’s part of the story, but that the critics might also have a legitimate gripe. Examined closely, though, even that concern is unfounded.

To be sure, much of the opposition to Wal-Mart’s foray into organics is motivated by a desire to exclude. Consider, for example, the remarks of Michael Pollan, author of The Omnivore’s Dilemma and a leading Wal-Mart critic. Regarding Wal-Mart’s plan to sell organics at a small mark-up over conventionally grown food, Pollan writes: “To say you can sell organic food for 10 percent more than you sell irresponsibly priced food suggests that you don’t really get it.�

That statement just reeks of elitism. What is “irresponsibly priced food�? (Food that poor people can afford?) And what do these price-slashers “not get�? (That the organic label is largely just a status symbol?) Pollan’s focus on Wal-Mart’s pricing suggests that his real concern is to keep the hoi polloi from enjoying “responsibly priced� (i.e., expensive) organic food.

But the Journal article suggests there’s more to the story. Continue Reading…

It appears that the FTC is moving to stop the proposed Whole Foods/Wild Oats merger.  Says the FTC:

If Whole Foods is allowed to devour Wild Oats, it will mean higher prices, reduced quality, and fewer choices for consumers [in the premium natural and organic supermarkets market]. That is a deal consumers should not be required to swallow.

Very punny.  I’d be laughing hysterically if I didn’t find this conception of market definition ludicrous almost beyond belief.  I haven’t seen anything so absurd since the allegation (by the reliably-interventionist AAI, at least; not the DOJ) that front- and top-loading washing machines are in different markets.

I would think that the triumphant entry of Wal-Mart alone into the natural and organic foods market (ooh–but not premium natural and organic! Some people just won’t buy their pesticide-free bok choy at Wal-Mart, you know) would save this merger.

But notice something important.  The FTC doesn’t claim that the relevant market is the market for natural and organic food.  The market is for natural and organic supermarkets.  The agencies have been down this road before, mistaking channels of distribution for relevant markets.  On the same grounds it stopped the Libbey/Anchor-Hocking merger and the Staples/Office Depot merger, to say nothing of a number of other grocery store mergers.  Now, in some cases, it may be that the market is defined by the merging distributors (as many would say was true in the Staples case).  But because economically-relevant market definition turns on demand elasticity among consumers who are often free to purchase products from multiple distribution channels, a myopic focus on a single channel of distribution to the exclusion of others is dangerous.

In other words, there is a serious risk of conflating a “market” for business purposes with an actual antitrust-relevant market.  Whole Foods and Wild Oats may view themselves as operating in a different world than Wal-Mart.  But their self-characterization is largely irrelevant.  What matters is whether customers who shop at Whole Foods would shop elsewhere for substitute products if Whole Food’s prices rose too much.  The implicit notion that the availability of organic foods at Wal-Mart (to say nothing of pretty much every other grocery store in the US today!) exerts little or no competitive pressure on prices at Whole Foods seems facially silly.  

Market definition is thorny, and it has (unfortunately) become the end point, rather than the starting point, of merger analysis at the agencies.  I don’t know what a hard look at the data would show in this case, but my strong suspicion is that the FTC is choking on its organic, locally-grown edamame with this one.   

(By the way–for an extended meditation on these issues, see my article with Marc Williamson, Hot Docs vs. Cold Economics).