The concept of European “digital sovereignty” has been promoted in recent years both by high officials of the European Union and by EU national governments. Indeed, France made strengthening sovereignty one of the goals of its recent presidency in the EU Council.
The approach taken thus far both by the EU and by national authorities has been not to exclude foreign businesses, but instead to focus on research and development funding for European projects. Unfortunately, there are worrying signs that this more measured approach is beginning to be replaced by ill-conceived moves toward economic protectionism, ostensibly justified by national-security and personal-privacy concerns.
In this context, it is worth reconsidering why Europeans’ best interests are best served not by economic isolationism, but by an understanding of sovereignty that capitalizes on alliances with other free democracies.
Protectionism Under the Guise of Cybersecurity
Among the primary worrying signs regarding the EU’s approach to digital sovereignty is the union’s planned official cybersecurity-certification scheme. The European Commission is reportedly pushing for “digital sovereignty” conditions in the scheme, which would include data and corporate-entity localization and ownership requirements. This can be categorized as “hard” data localization in the taxonomy laid out by Peter Swire and DeBrae Kennedy-Mayo of Georgia Institute of Technology, in that it would prohibit both data transfers to other countries and for foreign capital to be involved in processing even data that is not transferred.
The European Cybersecurity Certification Scheme for Cloud Services (EUCS) is being prepared by ENISA, the EU cybersecurity agency. The scheme is supposed to be voluntary at first, but it is expected that it will become mandatory in the future, at least for some situations (e.g., public procurement). It was not initially billed as an industrial-policy measure and was instead meant to focus on technical security issues. Moreover, ENISA reportedly did not see the need to include such “digital sovereignty” requirements in the certification scheme, perhaps because they saw them as insufficiently grounded in genuine cybersecurity needs.
Despite ENISA’s position, the European Commission asked the agency to include the digital–sovereignty requirements. This move has been supported by a coalition of European businesses that hope to benefit from the protectionist nature of the scheme. Somewhat ironically, their official statement called on the European Commission to “not give in to the pressure of the ones who tend to promote their own economic interests,”
The governments of Denmark, Estonia, Greece, Ireland, Netherlands, Poland, and Sweden expressed “strong concerns” about the Commission’s move. In contrast, Germany called for a political discussion of the certification scheme that would take into account “the economic policy perspective.” In other words, German officials want the EU to consider using the cybersecurity-certification scheme to achieve protectionist goals.
Cybersecurity certification is not the only avenue by which Brussels appears to be pursuing protectionist policies under the guise of cybersecurity concerns. As highlighted in a recent report from the Information Technology & Innovation Foundation, the European Commission and other EU bodies have also been downgrading or excluding U.S.-owned firms from technical standard-setting processes.
Do Security and Privacy Require Protectionism?
As others have discussed at length (in addition to Swire and Kennedy-Mayo, also Theodore Christakis) the evidence for cybersecurity and national-security arguments for hard data localization have been, at best, inconclusive. Press reports suggest that ENISA reached a similar conclusion. There may be security reasons to insist upon certain ways of distributing data storage (e.g., across different data centers), but those reasons are not directly related to the division of national borders.
In fact, as illustrated by the well-known architectural goal behind the design of the U.S. military computer network that was the precursor to the Internet, security is enhanced by redundant distribution of data and network connections in a geographically dispersed way. The perils of putting “all one’s data eggs” in one basket (one locale, one data center) were amply illustrated when a fire in a data center of a French cloud provider, OVH, famously brought down millions of websites that were only hosted there. (Notably, OVH is among the most vocal European proponents of hard data localization).
Moreover, security concerns are clearly not nearly as serious when data is processed by our allies as it when processed by entities associated with less friendly powers. Whatever concerns there may be about U.S. intelligence collection, it would be detached from reality to suggest that the United States poses a national-security risk to EU countries. This has become even clearer since the beginning of the Russian invasion of Ukraine. Indeed, the strength of the U.S.-EU security relationship has been repeatedly acknowledged by EU and national officials.
Another commonly used justification for data localization is that it is required to protect Europeans’ privacy. The radical version of this position, seemingly increasingly popular among EU data-protection authorities, amounts to a call to block data flows between the EU and the United States. (Most bizarrely, Russia seems to receive a more favorable treatment from some European bureaucrats). The legal argument behind this view is that the United States doesn’t have sufficient legal safeguards when its officials process the data of foreigners.
The soundness of that view is debated, but what is perhaps more interesting is that similar privacy concerns have also been identified by EU courts with respect to several EU countries. The reaction of those European countries was either to ignore the courts, or to be “ruthless in exploiting loopholes” in court rulings. It is thus difficult to treat seriously the claims that Europeans’ data is much better safeguarded in their home countries than if it flows in the networks of the EU’s democratic allies, like the United States.
Digital Sovereignty as Industrial Policy
Given the above, the privacy and security arguments are unlikely to be the real decisive factors behind the EU’s push for a more protectionist approach to digital sovereignty, as in the case of cybersecurity certification. In her 2020 State of the Union speech, EU Commission President Ursula von der Leyen stated that Europe “must now lead the way on digital—or it will have to follow the way of others, who are setting these standards for us.”
She continued: “On personalized data—business to consumer—Europe has been too slow and is now dependent on others. This cannot happen with industrial data.” This framing suggests an industrial-policy aim behind the digital-sovereignty agenda. But even in considering Europe’s best interests through the lens of industrial policy, there are reasons to question the manner in which “leading the way on digital” is being implemented.
Limitations on foreign investment in European tech businesses come with significant costs to the European tech ecosystem. Those costs are particularly high in the case of blocking or disincentivizing American investment.
Effect on startups
Early-stage investors such as venture capitalists bring more than just financial capital. They offer expertise and other vital tools to help the businesses in which they invest. It is thus not surprising that, among the best investors, those with significant experience in a given area are well-represented. Due to the successes of the U.S. tech industry, American investors are especially well-positioned to play this role.
In contrast, European investors may lack the needed knowledge and skills. For example, in its report on building “deep tech” companies in Europe, Boston Consulting Group noted that a “substantial majority of executives at deep-tech companies and more than three-quarters of the investors we surveyed believe that European investors do not have a good understanding of what deep tech is.”
More to the point, even where EU players do hold advantages, a cooperative economic and technological system will allow the comparative advantage of both U.S. and EU markets to redound to each others’ benefit. That is to say, of course not all U.S. investment expertise will apply in the EU, but certainly some will. Similarly, there will be EU firms that are positioned to share their expertise in the United States. But there is no ex ante way to know when and where these complementarities will exist, which essentially dooms efforts at centrally planning technological cooperation.
Given the close economic, cultural, and historical ties of the two regions, it makes sense to work together, particularly given the rising international-relations tensions outside of the western sphere. It also makes sense, insofar as the relatively open private-capital-investment environment in the United States is nearly impossible to match, let alone surpass, through government spending.
For example, national government and EU funding in Europe has thus far ranged from expensive failures (the “Google-killer”) to the all-too-predictable bureaucracy-heavy grantmaking, the beneficiaries of which describe as lacking flexibility, “slow,” “heavily process-oriented,” and expensive for businesses to navigate. As reported by the Financial Times’ Sifted website, the EU’s own startup-investment scheme (the European Innovation Council) backed only one business over more than a year, and it had “delays in payment” that “left many startups short of cash—and some on the brink of going out of business.”
Starting new business ventures is risky, especially for the founders. They risk devoting their time, resources, and reputation to an enterprise that may very well fail. Given this risk of failure, the potential upside needs to be sufficiently high to incentivize founders and early employees to take the gamble. This upside is normally provided by the possibility of selling one’s shares in a business. In BCG’s previously cited report on deep tech in Europe, respondents noted that the European ecosystem lacks “clear exit opportunities”:
Some investors fear being constrained by European sovereignty concerns through vetoes at the state or Europe level or by rules potentially requiring European ownership for deep-tech companies pursuing strategically important technologies. M&A in Europe does not serve as the active off-ramp it provides in the US. From a macroeconomic standpoint, in the current environment, investment and exit valuations may be impaired by inflation or geopolitical tensions.
More broadly, those exit opportunities also factor importantly into funders’ appetite to price the risk of failure in their ventures. Where the upside is sufficiently large, an investor might be willing to experiment in riskier ventures and be suitably motivated to structure investments to deal with such risks. But where the exit opportunities are diminished, it makes much more sense to spend time on safer bets that may provide lower returns, but are less likely to fail. Coupled with the fact that government funding must run through bureaucratic channels, which are inherently risk averse, the overall effect is a less dynamic funding system.
The Central and Eastern Europe (CEE) region is an especially good example of the positive influence of American investment in Europe’s tech ecosystem. According to the state-owned Polish Development Fund and Dealroom.co, in 2019, $0.9 billion of venture-capital investment in CEE came from the United States, $0.5 billion from Europe, and $0.1 billion from the rest of the world.
Technological investment is rarely, if ever, a zero-sum game. U.S. firms that invest in the EU (and vice versa) do not do so as foreign conquerors, but as partners whose own fortunes are intertwined with their host country. Consider, for example, Google’s recent PLN 2.7 billion investment in Poland. Far from extractive, that investment will build infrastructure in Poland, and will employ an additional 2,500 Poles in the company’s cloud-computing division. This sort of partnership plants the seeds that grow into a native tech ecosystem. The Poles that today work in Google’s cloud-computing division are the founders of tomorrow’s innovative startups rooted in Poland.
The funding that accompanies native operations of foreign firms also has a direct impact on local economies and tech ecosystems. More local investment in technology creates demand for education and support roles around that investment. This creates a virtuous circle that ultimately facilitates growth in the local ecosystem. And while this direct investment is important for large countries, in smaller countries, it can be a critical component in stimulating their own participation in the innovation economy.
According to Crunchbase, out of 2,617 EU-headquartered startups founded since 2010 with total equity funding amount of at least $10 million, 927 (35%) had at least one founder who previously worked for an American company. For example, two of the three founders of Madrid-based Seedtag (total funding of more than $300 million) worked at Google immediately before starting Seedtag.
It is more difficult to quantify how many early employees of European startups built their experience in American-owned companies, but it is likely to be significant and to become even more so, especially in regions—like Central and Eastern Europe—with significant direct U.S. investment in local talent.
Explicit industrial policy for protectionist ends is—at least, for the time being—regarded as unwise public policy. But this is not to say that countries do not have valid national interests that can be met through more productive channels. While strong data-localization requirements is ultimately counterproductive, particularly among closely allied nations, countries have a legitimate interest in promoting the growth of the technology sector within their borders.
National investment in R&D can yield fruit, particularly when that investment works in tandem with the private sector (see, e.g., the Bayh-Dole Act in the United States). The bottom line, however, is that any intervention should take care to actually promote the ends it seeks. Strong data-localization policies in the EU will not lead to success of the local tech industry, but it will serve to wall the region off from the kind of investment that can make it thrive.
The Federal Trade Commission (FTC) wants to review in advance all future acquisitions by Facebook parent Meta Platforms. According to a Sept. 2 Bloomberg report, in connection with its challenge to Meta’s acquisition of fitness-app maker Within Unlimited, the commission “has asked its in-house court to force both Meta and [Meta CEO Mark] Zuckerberg to seek approval from the FTC before engaging in any future deals.”
This latest FTC decision is inherently hyper-regulatory, anti-free market, and contrary to the rule of law. It also is profoundly anti-consumer.
Like other large digital-platform companies, Meta has conferred enormous benefits on consumers (net of payments to platforms) that are not reflected in gross domestic product statistics. In a December 2019 Harvard Business Review article, Erik Brynjolfsson and Avinash Collis reported research finding that Facebook:
…generates a median consumer surplus of about $500 per person annually in the United States, and at least that much for users in Europe. … [I]ncluding the consumer surplus value of just one digital good—Facebook—in GDP would have added an average of 0.11 percentage points a year to U.S. GDP growth from 2004 through 2017.
The acquisition of complementary digital assets—like the popular fitness app produced by Within—enables Meta to continually enhance the quality of its offerings to consumers and thereby expand consumer surplus. It reflects the benefits of economic specialization, as specialized assets are made available to enhance the quality of Meta’s offerings. Requiring Meta to develop complementary assets in-house, when that is less efficient than a targeted acquisition, denies these benefits.
Furthermore, in a recent editorial lambasting the FTC’s challenge to a Meta-Within merger as lacking a principled basis, the Wall Street Journal pointed out that the challenge also removes incentive for venture-capital investments in promising startups, a result at odds with free markets and innovation:
Venture capitalists often fund startups on the hope that they will be bought by larger companies. [FTC Chair Lina] Khan is setting down the marker that the FTC can block acquisitions merely to prevent big companies from getting bigger, even if they don’t reduce competition or harm consumers. This will chill investment and innovation, and it deserves a burial in court.
This is bad enough. But the commission’s proposal to require blanket preapprovals of all future Meta mergers (including tiny acquisitions well under regulatory pre-merger reporting thresholds) greatly compounds the harm from its latest ill-advised merger challenge. Indeed, it poses a blatant challenge to free-market principles and the rule of law, in at least three ways.
It substitutes heavy-handed ex ante regulatory approval for a reliance on competition, with antitrust stepping in only in those limited instances where the hard facts indicate a transaction will be anticompetitive. Indeed, in one key sense, it is worse than traditional economic regulation. Empowering FTC staff to carry out case-by-case reviews of all proposed acquisitions inevitably will generate arbitrary decision-making, perhaps based on a variety of factors unrelated to traditional consumer-welfare-based antitrust. FTC leadership has abandoned sole reliance on consumer welfare as the touchstone of antitrust analysis, paving the wave for potentially abusive and arbitrary enforcement decisions. By contrast, statutorily based economic regulation, whatever its flaws, at least imposes specific standards that staff must apply when rendering regulatory determinations.
By abandoning sole reliance on consumer-welfare analysis, FTC reviews of proposed Meta acquisitions may be expected to undermine the major welfare benefits that Meta has previously bestowed upon consumers. Given the untrammeled nature of these reviews, Meta may be expected to be more cautious in proposing transactions that could enhance consumer offerings. What’s more, the general anti-merger bias by current FTC leadership would undoubtedly prompt them to reject some, if not many, procompetitive transactions that would confer new benefits on consumers.
Instituting a system of case-by-case assessment and approval of transactions is antithetical to the normal American reliance on free markets, featuring limited government intervention in market transactions based on specific statutory guidance. The proposed review system for Meta lacks statutory warrant and (as noted above) could promote arbitrary decision-making. As such, it seriously flouts the rule of law and threatens substantial economic harm (sadly consistent with other ill-considered initiatives by FTC Chair Khan, see here and here).
In sum, internet-based industries, and the big digital platforms, have thrived under a system of American technological freedom characterized as “permissionless innovation.” Under this system, the American people—consumers and producers—have been the winners.
The FTC’s efforts to micromanage future business decision-making by Meta, prompted by the challenge to a routine merger, would seriously harm welfare. To the extent that the FTC views such novel interventionism as a bureaucratic template applicable to other disfavored large companies, the American public would be the big-time loser.
A recent viral video captures a prevailing sentiment in certain corners of social media, and among some competition scholars, about how mergers supposedly work in the real world: firms start competing on price, one firm loses out, that firm agrees to sell itself to the other firm and, finally, prices are jacked up.(Warning: Keep the video muted. The voice-over is painful.)
The story ends there. In this narrative, the combination offers no possible cost savings. The owner of the firm who sold doesn’t start a new firm and begin competing tomorrow, and nor does anyone else. The story ends with customers getting screwed.
And in this telling, it’s not just horizontal mergers that look like the one in the viral egg video. It is becoming a common theory of harm regarding nonhorizontal acquisitions that they are, in fact, horizontal acquisitions in disguise. The acquired party may possibly, potentially, with some probability, in the future, become a horizontal competitor. And of course, the story goes, all horizontal mergers are anticompetitive.
Therefore, we should have the same skepticism toward all mergers, regardless of whether they are horizontal or vertical. Steve Salop has argued that a problem with the Federal Trade Commission’s (FTC) 2020 vertical merger guidelines is that they failed to adopt anticompetitive presumptions.
This perspective is not just a meme on Twitter. The FTC and U.S. Justice Department (DOJ) are currently revising their guidelines for merger enforcement and have issued a request for information (RFI). The working presumption in the RFI (and we can guess this will show up in the final guidelines) is exactly the takeaway from the video: Mergers are bad. Full stop.
The RFI repeatedly requests information that would support the conclusion that the agencies should strengthen merger enforcement, rather than information that might point toward either stronger or weaker enforcement. For example, the RFI asks:
What changes in standards or approaches would appropriately strengthen enforcement against mergers that eliminate a potential competitor?
This framing presupposes that enforcement should be strengthened against mergers that eliminate a potential competitor.
Do Monopoly Profits Always Exceed Joint Duopoly Profits?
Should we assume enforcement, including vertical enforcement, needs to be strengthened? In a world with lots of uncertainty about which products and companies will succeed, why would an incumbent buy out every potential competitor? The basic idea is that, since profits are highest when there is only a single monopolist, that seller will always have an incentive to buy out any competitors.
The punchline for this anti-merger presumption is “monopoly profits exceed duopoly profits.” The argument is laid out most completely by Salop, although the argument is not unique to him. As Salop points out:
I do not think that any of the analysis in the article is new. I expect that all the points have been made elsewhere by others and myself.
Under the model that Salop puts forward, there should, in fact, be a presumption against any acquisition, not just horizontal acquisitions. He argues that:
Acquisitions of potential or nascent competitors by a dominant firm raise inherent anticompetitive concerns. By eliminating the procompetitive impact of the entry, an acquisition can allow the dominant firm to continue to exercise monopoly power and earn monopoly profits. The dominant firm also can neutralize the potential innovation competition that the entrant would provide.
We see a presumption against mergers in the recent FTC challenge of Meta’s purchase of Within. While Meta owns Oculus, a virtual-reality headset and Within owns virtual-reality fitness apps, the FTC challenged the acquisition on grounds that:
The Acquisition would cause anticompetitive effects by eliminating potential competition from Meta in the relevant market for VR dedicated fitness apps.
Given the prevalence of this perspective, it is important to examine the basic model’s assumptions. In particular, is it always true that—since monopoly profits exceed duopoly profits—incumbents have an incentive to eliminate potential competition for anticompetitive reasons?
I will argue no. The notion that monopoly profits exceed joint-duopoly profits rests on two key assumptions that hinder the simple application of the “merge to monopoly” model to antitrust.
First, even in a simple model, it is not always true that monopolists have both the ability and incentive to eliminate any potential entrant, simply because monopoly profits exceed duopoly profits.
For the simplest complication, suppose there are two possible entrants, rather than the common assumption of just one entrant at a time. The monopolist must now pay each of the entrants enough to prevent entry. But how much? If the incumbent has already paid one potential entrant not to enter, the second could then enter the market as a duopolist, rather than as one of three oligopolists. Therefore, the incumbent must pay the second entrant an amount sufficient to compensate a duopolist, not their share of a three-firm oligopoly profit. The same is true for buying the first entrant. To remain a monopolist, the incumbent would have to pay each possible competitor duopoly profits.
Because monopoly profits exceed duopoly profits, it is profitable to pay a single entrant half of the duopoly profit to prevent entry. It is not, however, necessarily profitable for the incumbent to pay both potential entrants half of the duopoly profit to avoid entry by either.
Now go back to the video. Suppose two passersby, who also happen to have chickens at home, notice that they can sell their eggs. The best part? They don’t have to sit around all day; the lady on the right will buy them. The next day, perhaps, two new egg sellers arrive.
For a simple example, consider a Cournot oligopoly model with an industry-inverse demand curve of P(Q)=1-Q and constant marginal costs that are normalized to zero. In a market with N symmetric sellers, each seller earns 1/((N+1)^2) in profits. A monopolist makes a profit of 1/4. A duopolist can expect to earn a profit of 1/9. If there are three potential entrants, plus the incumbent, the monopolist must pay each the duopoly profit of 3*1/9=1/3, which exceeds the monopoly profits of 1/4.
In the Nash/Cournot equilibrium, the incumbent will not acquire any of the competitors, since it is too costly to keep them all out. With enough potential entrants, the monopolist in any market will not want to buy any of them out. In that case, the outcome involves no acquisitions.
If we observe an acquisition in a market with many potential entrants, which any given market may or may not have, it cannot be that the merger is solely about obtaining monopoly profits, since the model above shows that the incumbent doesn’t have incentives to do that.
If our model captures the dynamics of the market (which it may or may not, depending on a given case’s circumstances) but we observe mergers, there must be another reason for that deal besides maintaining a monopoly. The presence of multiple potential entrants overturns the antitrust implications of the truism that monopoly profits exceed duopoly profits. The question turns instead to empirical analysis of the merger and market in question, as to whether it would be profitable to acquire all potential entrants.
The second simplifying assumption that restricts the applicability of Salop’s baseline model is that the incumbent has the lowest cost of production. He rules out the possibility of lower-cost entrants in Footnote 2:
Monopoly profits are not always higher. The entrant may have much lower costs or a better or highly differentiated product. But higher monopoly profits are more usually the case.
If one allows the possibility that an entrant may have lower costs (even if those lower costs won’t be achieved until the future, when the entrant gets to scale), it does not follow that monopoly profits (under the current higher-cost monopolist) necessarily exceed duopoly profits (with a lower-cost producer involved).
Although it is convenient in theoretical modeling to assume that similarly situated firms have equivalent capacities to realize profits, in reality firms vary greatly in their capabilities, and their investment and other business decisions are dependent on the firm’s managers’ expectations about their idiosyncratic abilities to recognize profit opportunities and take advantage of them—in short, they rest on the firm managers’ ability to be entrepreneurial.
Given the assumptions that all firms have identical costs and there is only one potential entrant, Salop’s framework would find that all possible mergers are anticompetitive and that there are no possible efficiency gains from any merger. That’s the thrust of the video. We assume that the whole story is two identical-seeming women selling eggs. Since the acquired firm cannot, by assumption, have lower costs of production, it cannot improve on the incumbent’s costs of production.
Many Reasons for Mergers
But whether a merger is efficiency-reducing and bad for competition and consumers needs to be proven, not just assumed.
If we take the basic acquisition model literally, every industry would have just one firm. Every incumbent would acquire every possible competitor, no matter how small. After all, monopoly profits are higher than duopoly profits, and so the incumbent both wants to and can preserve its monopoly profits. The model does not give us a way to disentangle when mergers would stop without antitrust enforcement.
Mergers do not affect the production side of the economy, under this assumption, but exist solely to gain the market power to manipulate prices. Since the model finds no downsides for the incumbent to acquiring a competitor, it would naturally acquire every last potential competitor, no matter how small, unless prevented by law.
Once we allow for the possibility that firms differ in productivity, however, it is no longer true that monopoly profits are greater than industry duopoly profits. We can see this most clearly in situations where there is “competition for the market” and the market is winner-take-all. If the entrant to such a market has lower costs, the profit under entry (when one firm wins the whole market) can be greater than the original monopoly profits. In such cases, monopoly maintenance alone cannot explain an entrant’s decision to sell.
An acquisition could therefore be both procompetitive and increase consumer welfare. For example, the acquisition could allow the lower-cost entrant to get to scale quicker. The acquisition of Instagram by Facebook, for example, brought the photo-editing technology that Instagram had developed to a much larger market of Facebook users and provided a powerful monetization mechanism that was otherwise unavailable to Instagram.
In short, the notion that incumbents can systematically and profitably maintain their market position by acquiring potential competitors rests on assumptions that, in practice, will regularly and consistently fail to materialize. It is thus improper to assume that most of these acquisitions reflect efforts by an incumbent to anticompetitively maintain its market position.
Welcome to the FTC UMC Roundup for June 10, 2022. This is a week of headlines! One would be forgiven for assuming that our focus, once again, would on the American Innovation and Choice Online Act (AICOA). I heard on the radio yesterday that it’s champion, Sen. Amy Klobuchar (D-MN), has the 60 votes it needs to pass, and we are told the vote will be “quite soon.”Yet that is not our headline this week. So it goes in a busy week of news.
This week’s headline is FTC Chair Lina Khan’s press tour–a clear sign of big things on the horizon. This past week she spoke with the AP, Axios, CNN, The Hill, Politico, Protocol, New York Times, Vox, Wall Street Journal, and Washington Post, and probably more. Almost a year to the day into her term as Chair, it seems she may have something to say? Yes: “There are [sic] a whole set of major policy initiatives that we have underway that we’re expecting will come to fruition over this next year.”
The Chair’s press tour consistently struck several chords. She emphasized three priorities: merger guidelines and enforcement, regulating non-compete compete agreements, and privacy and security. In several interviews she discussed the use of both enforcement and rulemaking. It seems clear that a proposal for rules targeting non-compete agreements using the FTC’s unfair methods of competition (UMC) authority is imminent. It also seems likely that these rules will be modest. In several of the interviews Khan emphasized proceeding cautiously with respect to process. This speaks to one of the questions everyone has been asking: will Khan approach UMC rulemaking slowly, using modest initial rules to lay the groundwork to support more ambitious future rules but risking the clock on her term as Chair running out before much can be accomplished–or will she instead take a more aggressive approach, for instance by pushing ahead with a slate of proposed rules right out of the gate. We seem to have at least an initial answer: she hopes slow and steady will in the race.
Slow and steady doesn’t mean not aggressive. Khan’s interviews clearly suggest more aggressive merger enforcement moving forward–including potential challenges to mergers that have cleared the HSR review period. While not new news, Khan also made clear her preference to block transactions outright instead of allowing firms to cure potentially problematic parts of proposed deals. And she also discussed potential rulemaking relating to mergers. Perhaps most noteworthy was her discussion of “user privacy and commercial surveillance” in several interviews–including some in which it was unclear whether these concerns sounded in consumer protection or competition. The inclusion of “commercial surveillance” suggests a broader focus than traditional privacy concerns–perhaps including business models or competition in the advertising space.
Another theme was Khan’s blurred distinction between merely enforcing existing law and transforming the FTC. Her view is probably best described as neither and both: technology has transformed the economy and the FTC’s existing law is flexible enough to adapt to those changes. That, surely, will frame the central questions–likely to ultimately be answered by the courts–as the FTC charts a course across this sea of change: whether Congress empowered the FTC to regulate wherever the market took it and, if so, whether such power is too broad for Congress to have given to an agency.
That brings us to Congress. AICOA’s uncertain future remains uncertain. We can say with certainty that the bill has entered the proxy war phase. Supporters of the bill, having already played the “exclude favored industries from the bill” hand, are now targeting leadership directly. And industry still covered by the bill–if you can call a small number of individual firms an industry–is pulling out the lobbying stops, including getting the message out directly to consumers.
If AICOA is to pass, it will do so upon a fragile coalition–at least 10 Republicans will need to cross party lines to support the legislation. Several Republicans seem poised to support the bill today, but will that be true tomorrow? Conservative voices including the Wall Street Journal are urging them not to. Not-so-conservative voices like Mike Masnick also raise concerns about the strange bedfellows needed to make the AICOA dream real. Both sides make the same point: Republican support for the bill comes from a belief that the bill addresses Republican concerns about censorship by BigTech. The Wall Street Journal argues that states are already addressing censorship concerns through narrower legislation that doesn’t risk the harm to innovation that AICOA could bring; Masnick warns Democrats that the Republican belief that AICOA could worsen the content moderation landscape is non-frivolous.
With Republican support for the bill built on so soft a foundation–clearly not based on antitrust concerns–it is quite possible for it to shift quickly. Indeed, one wonders whether this fragile bipartisan coalition will survive the January 6th Committee hearings started this week.
Some quick hits before we leave. This was a busy week for the FTC in healthcare. Continuing its focus on PBMs in recent weeks, the FTC has now opened a probe of PBMs. And the Commission has sued to block multiple hospital mergers in New Jersey and Utah. There were several reminders that Elon Musk’s proposed acquisition of Twitter has passed the HSR’s review period without challenge–perhaps someone should remind reporters on the Elon beat that that won’t prevent the FTC from challenging the merger? And in case anyone is wondering whether a settlement is on the table for Facebook, Khan has made clear that the FTC will gladly settle with Facebook–Facebook just needs to accept all the FTC’s terms.
A closing note: If you’re reading this on a lazy Friday afternoon in June and could use a good listen during lunch or on the commute home, you could do worse than listening to Richard Pierce, professor and Administrative Law guru, discuss whether administrative law allows the FTC to use rulemaking to change antitrust law.
The FTC UMC Roundup, part of the Truth on the Market FTC UMC Symposium, is a weekly roundup of news relating to the Federal Trade Commission’s antitrust and Unfair Methods of Competition authority. If you would like to receive this and other posts relating to these topics, subscribe to the RSS feed here. If you have news items you would like to suggest for inclusion, please mail them to us at firstname.lastname@example.org and/or email@example.com.
Welcome to the FTC UMC Roundup for June 3, 2023–Memorial Day week. The holiday meant we had a short week, but we still have plenty of news to share. It also means we’re now in meteorological summer, a reminder that the sands of legislative time run quickly through the hourglass. So it’s perhaps unsurprising that things continue to heat up on the legislative front, from antitrust to privacy and even some saber-rattling on remedies. Plus a fair bit of traditional-feeling action coming out of the FTC. Let’s jump in
At the Top
This week’s headline isn’t quite UMC- or even antitrust-related, but it’s headline-worthy nonetheless: after 14 years as COO of Facebook/Meta, Sheryl Sandberg has decided it’s time to lean her way out of the role. There aren’t obvious lines to read between with this departure–but it nonetheless marks a significant change to the organization and comes at a challenging time for the organization.
On the Hill
Turning to Congress, our first topic is Sen. Amy Klobuchar’s (D-MN) continued efforts to wrangle up enough support for the American Innovation and Choice Online Act (AICOA). The hold-up appears to be on the Democrat’s side of the aisle. Republican co-sponsor of the bill, Sen. Josh Hawley (R-Mo.), says of Democratic efforts to rally support that “they don’t think they have the votes.” Also on the topic of AICOA, the International Center for Law and Economics hosted a discussion about the legislation this past week. Lazar Radic offered a recap here, complete with a link to the recording.
AICOA isn’t the only bill making the rounds this week. A bipartisan privacy billcame out of left field, which is also where it seems likely to stay, with Sen. Brain Schatz (D-Hawaii) sending a letter to the Senate Commerce Committee “begging them to pump the brakes” on the bill. What’s the concern? Well, the bill is a compromise–one side agreed to preempt state privacy legislation in exchange for getting a private right of action. Sen. Schatz, likely along with many others, isn’t willing to lose existing state legislation. The bill is likely DOA in this Congress; probably even more DOA post-2022.
Other legislative news includes another bipartisan bill that would streamline permitting for certain tech industries. Ultimately proposed in the interest of supply-chain resilience and on-shoring critical industries, this seems to set the stage for future “left hand vs. right hand” industrial policy. (D-Georgia) has
At the Agencies
While most of this week’s news has been focused on Congress, the FTC and DOJ have been busy as well. Bloomberg reports on the increased attention the FTC is giving to Amazon, including some details about how resources allocated to the investigation have changed and that John Newman is leading the charge within the agency. And there are rumblings that the FTC could still challenge the Amazon-MGM deal, even post-closing.
DOJ and the FTC have announced a June 14/15 workshop “to explore new approaches to enforcing the antitrust laws in the pharmaceutical industry.” Despite the curious phrasing (there aren’t that many ways to enforce a law!) this event could provide insight into the FTC’s thinking about potential UMC rulemaking.
Binyamin Applebaum has an interesting NY Times opinion piece arguing that President Biden needs to appoint more judges with antitrust expertise to the bench. The lack of antitrust and regulatory expertise among Biden’s appointees to date is notable. Of course, Applebaum likely has a different sort of “antitrust expertise” in mind than most antitrust experts do. As Brian Albrecht writes in his own National Review op-ed, “Antitrust is Easy (When you Think You Know All the Answers).”
The “we need more judges” argument juxtaposes with AAG Kanter’s recent comments that he wants to bring cases, lots and lots of cases. “If we don’t go to court, then we’re regulators, not enforcers,” he recently commented at a University of Chicago conference. That is his approach to “the need to update and adapt our antitrust enforcement to address new market realities.” It remains to be seen how the courts will respond. Regardless, it is refreshing to see a preference for the antitrust laws to be enforced through the Article III courts.
If you’re looking for some distraction on your commute home, we have two recommendations this week. The top choice is the Tech Policy Podcastdiscussion with FTC Commissioner Noah Phillips. And when you’re done with that, Mark Jamison will point you to an AEI discussion with Howard Beales, former FTC Chair Tim Muris, and former FTC Commissioner and Acting Chair Maureen K. Ohlhausen.
The FTC UMC Roundup, part of the Truth on the Market FTC UMC Symposium, is a weekly roundup of news relating to the Federal Trade Commission’s antitrust and Unfair Methods of Competition authority. If you would like to receive this and other posts relating to these topics, subscribe to the RSS feed here. If you have news items you would like to suggest for inclusion, please mail them to us at firstname.lastname@example.org and/or email@example.com.
Welcome to the Truth on the Market FTC UMC Roundup for May 27, 2022. This week we have (Hail Mary?) revisions to Sen. Amy Klobuchar’s (D-Minn.) American Innovation and Choice Online Act, initiatives that can’t decide whether they belong in Congress or the Federal Trade Commission, and yet more commentary on inflation and antitrust, along with a twist ending.
This Week’s Headline
Sen. Klobuchar has shared a revised version of her proposed American Innovation and Choice Online Act. What’s different? Not much. The main change is that several industries—banks and telecom, notably—are excluded from coverage. That was probably an effort to win some Republican votes for the bill. But headed into the midterms. it appears some congressional Democrats view this more as a poison pill than a good bill—one they don’t think their constituents are willing to swallow.
Back at the FTC, the commission has announced that it will investigate the recent shortage of infant formula. This could focus on both consumer protection and competition issues. The market for infant formula in the United States is both fairly concentrated and also highly regulated. There are lots ofinteresting issues here (reminder to any academics reading this, we have an open call for papers for research relating to market-structuring regulation).
The blurry line between FTC and Congress remains blurry. The FTC’s call for comments relating to pharmacy benefit managers (PBMs) closed this week, with more than 500 comments, at the same time that bipartisan legislation relating to PBMs has been introduced. And Sens. Mike Rounds (R-S.D.) and Elizabeth Warren (D-Mass.) want the FTC to investigate price fixing in the beef industry.
Concentrating a bit on big-picture policy issues, the number of friends Larry Summers has in the White House is shrinking faster than the dollar, as he worries about the embrace of “hipster antitrust,” including that the administration’s antitrust policy is driving inflation. On the other side of the inflation-antitrust ledger, economists at the Boston Federal Reserve Bankreleased a paper arguing that high concentration increases inflation. Among others, ICLE Chief Economist Brian Albrecht calls foul. Still on the inflation beat, it’s no secret that the biggest tech companies hold a lot of cash. Some may wonder, with the cost of holding cash so high, is a buying spree on the horizon? (Answer: not if the FTC keeps holding up mergers!)
A Few Quick Hits
Former FTC Commissioner Josh Wright and former commission staffer Derek Moore reflect on FTC morale. And Howard Beales and former FTC Chair Tim Muris wonder whether the “national nanny” is back on the beat.
It’s consumer protection, not antitrust, news but Twitter has been hit with a $150 million fine for doing bad stuff with user data between 2013 and 2019. Perhaps DuckDuckGo will be up next for the FTC. It turns out that the browser built on promises that it doesn’t track you has a deal with Microsoft to let Microsoft track you. That gives us an excuse to mention the FTC’s call for presentations for PrivacyCon 2022.
We close with a twist ending: One of the concerns that critics of the FTC’s newfound embrace of its UMC authority have is that expansive vague authority given to regulators enables a flabby useless government that is paradoxically too powerful. Which is why it’s interesting to see Matt Stoller of the American Economic Liberties Project, of all people,express that concern. Strange bedfellows indeed!
The FTC UMC Roundup, part of the Truth on the Market FTC UMC Symposium, is a weekly roundup of news relating to the Federal Trade Commission’s antitrust and Unfair Methods of Competition authority. If you would like to receive this and other posts relating to these topics, subscribe to the RSS feed here. If you have news items you would like to suggest for inclusion, please mail them to us at firstname.lastname@example.org and/or email@example.com.
Federal Trade Commission (FTC) Chair Lina Khan missed the mark once again in her May 6 speech on merger policy, delivered at the annual meeting of the International Competition Network (ICN). At a time when the FTC and U.S. Justice Department (DOJ) are presumably evaluating responses to the agencies’ “request for information” on possible merger-guideline revisions (see here, for example), Khan’s recent remarks suggest a predetermination that merger policy must be “toughened” significantly to disincentivize a larger portion of mergers than under present guidance. A brief discussion of Khan’s substantively flawed remarks follows.
Khan’s remarks begin with a favorable reference to the tendentious statement from President Joe Biden’s executive order on competition that “broad government inaction has allowed far too many markets to become uncompetitive, with consolidation and concentration now widespread across our economy, resulting in higher prices, lower wages, declining entrepreneurship, growing inequality, and a less vibrant democracy.” The claim that “government inaction” has enabled increased market concentration and reduced competition has been shown to be inaccurate, and therefore cannot serve as a defensible justification for a substantive change in antitrust policy. Accordingly, Khan’s statement that the executive order “underscores a deep mandate for change and a commitment to creating the enabling environment for reform” rests on foundations of sand.
Khan then shifts her narrative to a consideration of merger policy, stating:
Merger investigations invite us to make a set of predictive assessments, and for decades we have relied on models that generally assumed markets are self-correcting and that erroneous enforcement is more costly than erroneous non-enforcement. Both the experience of the U.S. antitrust agencies and a growing set of empirical research is showing that these assumptions appear to have been at odds with market realities.
Khan argues, without explanation, that “the guidelines must better account for certain features of digital markets—including zero-price dynamics, the competitive significance of data, and the network externalities that can swiftly lead markets to tip.” She fails to make any showing that consumer welfare has been harmed by mergers involving digital markets, or that the “zero-price” feature is somehow troublesome. Moreover, the reference to “data” as being particularly significant to antitrust analysis appears to ignore research (see here) indicating there is an insufficient basis for having an antitrust presumption involving big data, and that big data (like R&D) may be associated with innovation, which enhances competitive vibrancy.
Khan also fails to note that network externalities are beneficial; when users are added to a digital platform, the platform’s value to other users increases (see here, for example). What’s more (see here), “gateways and multihoming can dissipate any monopoly power enjoyed by large networks[,] … provid[ing] another reason” why network effects may not raise competitive problems. In addition, the implicit notion that “tipping” is a particular problem is belied by the ability of new competitors to “knock off” supposed entrenched digital monopolists (think, for example, of Yahoo being displaced by Google, and Myspace being displaced by Facebook). Finally, a bit of regulatory humility is in order. Given the huge amount of consumer surplus generated by digital platforms (see here, for example), enforcers should be particularly cautious about avoiding more aggressive merger (and antitrust in general) policies that could detract from, rather than enhance, welfare.
Khan argues that guidelines drafters should “incorporate new learning” embodied in “empirical research [that] has shown that labor markets are highly concentrated” and a “U.S. Treasury [report] recently estimating that a lack of competition may be costing workers up to 20% of their wages.” Unfortunately for Khan’s argument, these claims have been convincingly debunked (see here) in a new study by former FTC economist Julie Carlson (see here). As Carlson carefully explains, labor markets are not highly concentrated and labor-market power is largely due to market frictions (such as occupational licensing), rather than concentration. In a similar vein, a recent article by Richard Epstein stresses that heightened antitrust enforcement in labor markets would involve “high administrative and compliance costs to deal with a largely nonexistent threat.” Epstein points out:
[T]raditional forms of antitrust analysis can perfectly deal with labor markets. … What is truly needed is a close examination of the other impediments to labor, including the full range of anticompetitive laws dealing with minimum wage, overtime, family leave, anti-discrimination, and the panoply of labor union protections, where the gains to deregulation should be both immediate and large.
[W]e are looking to sharpen our insights on non-horizontal mergers, including deals that might be described as ecosystem-driven, concentric, or conglomerate. While the U.S. antitrust agencies energetically grappled with some of these dynamics during the era of industrial-era conglomerates in the 1960s and 70s, we must update that thinking for the current economy. We must examine how a range of strategies and effects, including extension strategies and portfolio effects, may warrant enforcement action.
Khan’s statement on non-horizontal mergers once again is fatally flawed.
With regard to vertical mergers (not specifically mentioned by Khan), the FTC abruptly withdrew, without explanation, its approval of the carefully crafted 2020 vertical-merger guidelines. That action offends the rule of law, creating unwarranted and costly business-sector confusion. Khan’s lack of specific reference to vertical mergers does nothing to solve this problem.
With regard to other nonhorizontal mergers, there is no sound economic basis to oppose mergers involving unrelated products. Threatening to do so would have no procompetitive rationale and would threaten to reduce welfare by preventing the potential realization of efficiencies. In a 2020 OECD paper drafted principally by DOJ and FTC economists, the U.S. government meticulously assessed the case for challenging such mergers and rejected it on economic grounds. The OECD paper is noteworthy in its entirely negative assessment of 1960s and 1970s conglomerate cases which Khan implicitly praises in suggesting they merely should be “updated” to deal with the current economy (citations omitted):
Today, the United States is firmly committed to the core values that antitrust law protect competition, efficiency, and consumer welfare rather than individual competitors. During the ten-year period from 1965 to 1975, however, the Agencies challenged several mergers of unrelated products under theories that were antithetical to those values. The “entrenchment” doctrine, in particular, condemned mergers if they strengthened an already dominant firm through greater efficiencies, or gave the acquired firm access to a broader line of products or greater financial resources, thereby making life harder for smaller rivals. This approach is no longer viewed as valid under U.S. law or economic theory. …
These cases stimulated a critical examination, and ultimate rejection, of the theory by legal and economic scholars and the Agencies. In their Antitrust Law treatise, Phillip Areeda and Donald Turner showed that to condemn conglomerate mergers because they might enable the merged firm to capture cost savings and other efficiencies, thus giving it a competitive advantage over other firms, is contrary to sound antitrust policy, because cost savings are socially desirable. It is now recognized that efficiency and aggressive competition benefit consumers, even if rivals that fail to offer an equally “good deal” suffer loss of sales or market share. Mergers are one means by which firms can improve their ability to compete. It would be illogical, then, to prohibit mergers because they facilitate efficiency or innovation in production. Unless a merger creates or enhances market power or facilitates its exercise through the elimination of competition—in which case it is prohibited under Section 7—it will not harm, and more likely will benefit, consumers.
Given the well-reasoned rejection of conglomerate theories by leading antitrust scholars and modern jurisprudence, it would be highly wasteful for the FTC and DOJ to consider covering purely conglomerate (nonhorizontal and nonvertical) mergers in new guidelines. Absent new legislation, challenges of such mergers could be expected to fail in court. Regrettably, Khan appears oblivious to that reality.
Khan’s speech ends with a hat tip to internationalism and the ICN:
The U.S., of course, is far from alone in seeing the need for a course correction, and in certain regards our reforms may bring us in closer alignment with other jurisdictions. Given that we are here at ICN, it is worth considering how we, as an international community, can or should react to the shifting consensus.
Antitrust laws have been adopted worldwide, in large part at the urging of the United States (see here). They remain, however, national laws. One would hope that the United States, which in the past was the world leader in developing antitrust economics and enforcement policy, would continue to seek to retain this role, rather than merely emulate other jurisdictions to join an “international community” consensus. Regrettably, this does not appear to be the case. (Indeed, European Commissioner for Competition Margrethe Vestager made specific reference to a “coordinated approach” and convergence between U.S. and European antitrust norms in a widely heralded October 2021 speech at the annual Fordham Antitrust Conference in New York. And Vestager specifically touted European ex ante regulation as well as enforcement in a May 5 ICN speech that emphasized multinational antitrust convergence.)
Lina Khan’s recent ICN speech on merger policy sends all the wrong signals on merger guidelines revisions. It strongly hints that new guidelines will embody pre-conceived interventionist notions at odds with sound economics. By calling for a dramatically new direction in merger policy, it interjects uncertainty into merger planning. Due to its interventionist bent, Khan’s remarks, combined with prior statements by U.S. Assistant Attorney General Jonathan Kanter (see here) may further serve to deter potentially welfare-enhancing consolidations. Whether the federal courts will be willing to defer to a drastically different approach to mergers by the agencies (one at odds with several decades of a careful evolutionary approach, rooted in consumer welfare-oriented economics) is, of course, another story. Stay tuned.
U.S. antitrust policy seeks to promote vigorous marketplace competition in order to enhance consumer welfare. For more than four decades, mainstream antitrust enforcers have taken their cue from the U.S. Supreme Court’s statement in Reiter v. Sonotone (1979) that antitrust is “a consumer welfare prescription.” Recent suggestions (see here and here) by new Biden administration Federal Trade Commission (FTC) and U.S. Justice Department (DOJ) leadership that antitrust should promote goals apart from consumer welfare have yet to be embodied in actual agency actions, and they have not been tested by the courts. (Given Supreme Court case law, judicial abandonment of the consumer welfare standard appears unlikely, unless new legislation that displaces it is enacted.)
Assuming that the consumer welfare paradigm retains its primacy in U.S. antitrust, how do the goals of antitrust match up with those of national security? Consistent with federal government pronouncements, the “basic objective of U.S. national security policy is to preserve and enhance the security of the United States and its fundamental values and institutions.” Properly applied, antitrust can retain its consumer welfare focus in a manner consistent with national security interests. Indeed, sound antitrust and national-security policies generally go hand-in-hand. The FTC and the DOJ should keep that in mind in formulating their antitrust policies (spoiler alert: they sometimes have failed to do so).
At first blush, it would seem odd that enlightened consumer-welfare-oriented antitrust enforcement and national-security policy would be in tension. After all, enlightened antitrust enforcement is concerned with targeting transactions that harmfully reduce output and undermine innovation, such as hard-core collusion and courses of conduct that inefficiently exclude competition and weaken marketplace competition. U.S. national security would seem to be promoted (or, at least, not harmed) by antitrust enforcement directed at supporting stronger, more vibrant American markets.
This initial instinct is correct, if antitrust-enforcement policy indeed reflects economically sound, consumer-welfare-centric principles. But are there examples where antitrust enforcement falls short and thereby is at odds with national security? An evaluation of three areas of interaction between the two American policy interests is instructive.
The degree of congruence between national security and appropriate consumer welfare-enhancing antitrust enforcement is illustrated by a brief discussion of:
the intellectual property-antitrust interface, with a focus on patent licensing; and
proposed federal antitrust legislation.
The first topic presents an example of clear consistency between consumer-welfare-centric antitrust and national defense. In contrast, the second topic demonstrates that antitrust prosecutions (and policies) that inappropriately weaken intellectual-property protections are inconsistent with national defense interests. The second topic does not manifest a tension between antitrust and national security; rather, it illustrates a tension between national security and unsound antitrust enforcement. In a related vein, the third topic demonstrates how a change in the antitrust statutes that would undermine the consumer welfare paradigm would also threaten U.S. national security.
The consistency between antitrust goals and national security is relatively strong and straightforward in the field of defense-industry-related mergers and joint ventures. The FTC and DOJ traditionally have worked closely with the U.S. Defense Department (DOD) to promote competition and consumer welfare in evaluating business transactions that affect national defense needs.
The DOD has long supported policies to prevent overreliance on a single supplier for critical industrial-defense needs. Such a posture is consistent with the antitrust goal of preventing mergers to monopoly that reduce competition, raise prices, and diminish quality by creating or entrenching a dominant firm. As then-FTC Commissioner William Kovacic commented about an FTC settlement that permitted the United Launch Alliance (an American spacecraft launch service provider established in 2006 as a joint venture between Lockheed Martin and Boeing), “[i]n reviewing defense industry mergers, competition authorities and the DOD generally should apply a presumption that favors the maintenance of at least two suppliers for every weapon system or subsystem.”
Antitrust enforcers have, however, worked with DOD to allow the only two remaining suppliers of a defense-related product or service to combine their operations, subject to appropriate safeguards, when presented with scale economy and quality rationales that advanced national-security interests (see here).
Antitrust enforcers have also consulted and found common cause with DOD in opposing anticompetitive mergers that have national-security overtones. For example, antitrust enforcement actions targeting vertical defense-sector mergers that threaten anticompetitive input foreclosure or facilitate anticompetitive information exchanges are in line with the national-security goal of preserving vibrant markets that offer the federal government competitive, high-quality, innovative, and reasonably priced purchase options for its defense needs.
The FTC’s recent success in convincing Lockheed Martin to drop its proposed acquisition of Aerojet Rocketdyne holdings fits into this category. (I express no view on the merits of this matter; I merely cite it as an example of FTC-DOD cooperation in considering a merger challenge.) In its February 2022 press release announcing the abandonment of this merger, the FTC stated that “[t]he acquisition would have eliminated the country’s last independent supplier of key missile propulsion inputs and given Lockheed the ability to cut off its competitors’ access to these critical components.” The FTC also emphasized the full consistency between its enforcement action and national-security interests:
Simply put, the deal would have resulted in higher prices and diminished quality and innovation for programs that are critical to national security. The FTC’s enforcement action in this matter dovetails with the DoD report released this week recommending stronger merger oversight of the highly concentrated defense industrial base.
Shifts in government IP-antitrust patent-licensing policy perspectives
Standard setting through standard setting organizations (SSOs) has been a particularly important means of spawning valuable benchmarks (standards) that have enabled new patent-backed technologies to drive innovation and enable mass distribution of new high-tech products, such as smartphones. The licensing of patents that cover and make possible valuable standards—“standard-essential patents” or SEPs—has played a crucial role in bringing to market these products and encouraging follow-on innovations that have driven fast-paced welfare-enhancing product and process quality improvements.
Licensing, cross-licensing, or otherwise transferring intellectual property (hereinafter “licensing”) can facilitate integration of the licensed property with complementary factors of production. This integration can lead to more efficient exploitation of the intellectual property, benefiting consumers through the reduction of costs and the introduction of new products. Such arrangements increase the value of intellectual property to consumers and owners. Licensing can allow an innovator to capture returns from its investment in making and developing an invention through royalty payments from those that practice its invention, thus providing an incentive to invest in innovative efforts. …
[L]imitations on intellectual property licenses may serve procompetitive ends by allowing the licensor to exploit its property as efficiently and effectively as possible. These various forms of exclusivity can be used to give a licensee an incentive to invest in the commercialization and distribution of products embodying the licensed intellectual property and to develop additional applications for the licensed property. The restrictions may do so, for example, by protecting the licensee against free riding on the licensee’s investments by other licensees or by the licensor. They may also increase the licensor’s incentive to license, for example, by protecting the licensor from competition in the licensor’s own technology in a market niche that it prefers to keep to itself.
Unfortunately, however, FTC and DOJ antitrust policies over the last 15 years have too often belied this generally favorable view of licensing practices with respect to SEPs. (See generally here, here, and here). Notably, the antitrust agencies have at various times taken policy postures and enforcement actions indicating that SEP holders may face antitrust challenges if:
they fail to license all comers, including competitors, on fair, reasonable, and nondiscriminatory (FRAND) terms; and
seek to obtain injunctions against infringers.
In addition, antitrust policy officials (see 2011 FTC Report) have described FRAND price terms as cabined by the difference between the licensing rates for the first (included in the standard) and second (not included in the standard) best competing patented technologies available prior to the adoption of a standard. This pricing measure—based on the “incremental difference” between first and second-best technologies—has been described as necessary to prevent SEP holders from deriving artificial “monopoly rents” that reflect the market power conferred by a standard. (But see then FTC-Commissioner Joshua Wright’s 2013 essay to the contrary, based on the economics of incomplete contracts.)
This approach to SEPs undervalues them, harming the economy. Limitations on seeking injunctions (which are a classic property-right remedy) encourages opportunistic patent infringements and artificially disfavors SEP holders in bargaining over licensing terms with technology implementers, thereby reducing the value of SEPs. SEP holders are further disadvantaged by the presumption that they must license all comers. They also are harmed by the implication that they must be limited to a relatively low hypothetical “ex ante” licensing rate—a rate that totally fails to take into account the substantial economic welfare value that will accrue to the economy due to their contribution to the standard. Considered individually and as a whole, these negative factors discourage innovators from participating in standardization, to the detriment of standards quality. Lower-quality standards translate into inferior standardized produces and processes and reduced innovation.
Recognizing this problem, in 2018 DOJ, Assistant Attorney General for Antitrust Makan Delrahim announced a “New Madison Approach” (NMA) to SEP licensing, which recognized:
antitrust remedies are inappropriate for patent-licensing disputes between SEP-holders and implementers of a standard;
SSOs should not allow collective actions by standard-implementers to disfavor patent holders;
SSOs and courts should be hesitant to restrict SEP holders’ right to exclude implementers from access to their patents by seeking injunctions; and
unilateral and unconditional decisions not to license a patent should be per se legal. (See, for example, here and here.)
Acceptance of the NMA would have counter-acted the economically harmful degradation of SEPs stemming from prior government policies.
Regrettably, antitrust-enforcement-agency statements during the last year effectively have rejected the NMA. Most recently, in December 2021, the DOJ issued for public comment a Draft Policy Statement on Licensing Negotiations and Remedies, SEPs, which displaces a 2019 statement that had been in line with the NMA. Unless the FTC and Biden DOJ rethink their new position and decide instead to support the NMA, the anti-innovation approach to SEPs will once again prevail, with unfortunate consequences for American innovation.
The “weaker patents” implications of the draft policy statement would also prove detrimental to national security, as explained in a comment on the statement by a group of leading law, economics, and business scholars (including Nobel Laureate Vernon Smith) convened by the International Center for Law & Economics:
China routinely undermines U.S. intellectual property protections through its industrial policy. The government’s stated goal is to promote “fair and reasonable” international rules, but it is clear that China stretches its power over intellectual property around the world by granting “anti-suit injunctions” on behalf of Chinese smartphone makers, designed to curtail enforcement of foreign companies’ patent rights. …
Insufficient protections for intellectual property will hasten China’s objective of dominating collaborative standard development in the medium to long term. Simultaneously, this will engender a switch to greater reliance on proprietary, closed standards rather than collaborative, open standards. These harmful consequences are magnified in the context of the global technology landscape, and in light of China’s strategic effort to shape international technology standards. Chinese companies, directed by their government authorities, will gain significant control of the technologies that will underpin tomorrow’s digital goods and services.
A Center for Security and International Studies submission on the draft policy statement (signed by a former deputy secretary of the DOD, as well as former directors of the U.S. Patent and Trademark Office and the National Institute of Standards and Technology) also raised China-related national-security concerns:
[T]he largest short-term and long-term beneficiaries of the 2021 Draft Policy Statement are firms based in China. Currently, China is the world’s largest consumer of SEP-based technology, so weakening protection of American owned patents directly benefits Chinese manufacturers. The unintended effect of the 2021 Draft Policy Statement will be to support Chinese efforts to dominate critical technology standards and other advanced technologies, such as 5G. Put simply, devaluing U.S. patents is akin to a subsidized tech transfer to China.
Furthermore, in a more general vein, leading innovation economist David Teece also noted the negative national-security implications in his submission on the draft policy statement:
The US government, in reviewing competition policy issues that might impact standards, therefore needs to be aware that the issues at hand have tremendous geopolitical consequences and cannot be looked at in isolation. … Success in this regard will promote competition and is our best chance to maintain technological leadership—and, along with it, long-term economic growth and consumer welfare and national security.
That’s not all. In its public comment warning against precipitous finalization of the draft policy statement, the Innovation Alliance noted that, in recent years, major foreign jurisdictions have rejected the notion that SEP holders should be deprived the opportunity to seek injunctions. The Innovation Alliance opined in detail on the China national-security issues (footnotes omitted):
[T]he proposed shift in policy will undermine the confidence and clarity necessary to incentivize investments in important and risky research and development while simultaneously giving foreign competitors who do not rely on patents to drive investment in key technologies, like China, a distinct advantage. …
The draft policy statement … would devalue SEPs, and undermine the ability of U.S. firms to invest in the research and development needed to maintain global leadership in 5G and other critical technologies.
Without robust American investments, China—which has clear aspirations to control and lead in critical standards and technologies that are essential to our national security—will be left without any competition. Since 2015, President Xi has declared “whoever controls the standards controls the world.” China has rolled out the “China Standards 2035” plan and has outspent the United States by approximately $24 billion in wireless communications infrastructure, while China’s five-year economic plan calls for $400 billion in 5G-related investment.
Simply put, the draft policy statement will give an edge to China in the standards race because, without injunctions, American companies will lose the incentive to invest in the research and development needed to lead in standards setting. Chinese companies, on the other hand, will continue to race forward, funded primarily not by license fees, but by the focused investment of the Chinese government. …
Public hearings are necessary to take into full account the uncertainty of issuing yet another policy on this subject in such a short time period.
A key part of those hearings and further discussions must be the national security implications of a further shift in patent enforceability policy. Our future safety depends on continued U.S. leadership in areas like 5G and artificial intelligence. Policies that undermine the enforceability of patent rights disincentivize the substantial private sector investment necessary for research and development in these areas. Without that investment, development of these key technologies will begin elsewhere—likely China. Before any policy is accepted, key national-security stakeholders in the U.S. government should be asked for their official input.
These are not the only comments that raised the negative national-security ramifications of the draft policy statement (see here and here). For example, current Republican and Democratic senators, prior International Trade Commissioners, and former top DOJ and FTC officials also noted concerns. What’s more, the Patent Protection Society of China, which represents leading Chinese corporate implementers, filed a rather nonanalytic submission in favor of the draft statement. As one leading patent-licensing lawyer explains: “UC Berkley Law Professor Mark Cohen, whose distinguished government service includes serving as the USPTO representative in China, submitted a thoughtful comment explaining how the draft Policy Statement plays into China’s industrial and strategic interests.”
Finally, by weakening patent protection, the draft policy statement is at odds with the 2021 National Security Commission on Artificial Intelligence Report, which called for the United States to “[d]evelop and implement national IP policies to incentivize, expand, and protect emerging technologies[,]” in response to Chinese “leveraging and exploiting intellectual property (IP) policies as a critical tool within its national strategies for emerging technologies.”
In sum, adoption of the draft policy statement would raise antitrust risks, weaken key property rights protections for SEPs, and undercut U.S. technological innovation efforts vis-à-vis China, thereby undermining U.S. national security.
FTC v. Qualcomm: Misguided enforcement and national security
U.S. national-security interests have been threatened by more than just the recent SEP policy pronouncements. In filing a January 2017 antitrust suit (at the very end of the Obama administration) against Qualcomm’s patent-licensing practices, the FTC (by a partisan 2-1 vote) ignored the economic efficiencies that underpinned this highly successful American technology company’s practices. Had the suit succeeded, U.S. innovation in a critically important technology area would have needlessly suffered, with China as a major beneficiary. A recent Federalist Society Regulatory Transparency Project report on the New Madison Approach underscored the broad policy implications of FTC V. Qualcomm (citations deleted):
The FTC’s Qualcomm complaint reflected the anti-SEP bias present during the Obama administration. If it had been successful, the FTC’s prosecution would have seriously undermined the freedom of the company to engage in efficient licensing of its SEPs.
Qualcomm is perhaps the world’s leading wireless technology innovator. It has developed, patented, and licensed key technologies that power smartphones and other wireless devices, and continues to do so. Many of Qualcomm’s key patents are SEPs subject to FRAND, directed to communications standards adopted by wireless devices makers. Qualcomm also makes computer processors and chips embodied in cutting edge wireless devices. Thanks in large part to Qualcomm technology, those devices have improved dramatically over the last decade, offering consumers a vast array of new services at a lower and lower price, when quality is factored in. Qualcomm thus is the epitome of a high tech American success story that has greatly benefited consumers.
Qualcomm: (1) sells its chips to “downstream” original equipment manufacturers (OEMs, such as Samsung and Apple), on the condition that the OEMs obtain licenses to Qualcomm SEPs; and (2) refuses to license its FRAND-encumbered SEPs to rival chip makers, while allowing those rivals to create and sell chips embodying Qualcomm SEP technologies to those OEMS that have entered a licensing agreement with Qualcomm.
The FTC’s 2017 antitrust complaint, filed in federal district court in San Francisco, charged that Qualcomm’s “no license, no chips” policy allegedly “forced” OEM cell phone manufacturers to pay elevated royalties on products that use a competitor’s baseband processors. The FTC deemed this an illegal “anticompetitive tax” on the use of rivals’ processors, since phone manufacturers “could not run the risk” of declining licenses and thus losing all access to Qualcomm’s processors (which would be needed to sell phones on important cellular networks). The FTC also argued that Qualcomm’s refusal to license its rivals despite its SEP FRAND commitment violated the antitrust laws. Finally, the FTC asserted that a 2011-2016 Qualcomm exclusive dealing contract with Apple (in exchange for reduced patent royalties) had excluded business opportunities for Qualcomm competitors.
The federal district court held for the FTC. It ordered that Qualcomm end these supposedly anticompetitive practices and renegotiate its many contracts. [Among the beneficiaries of new pro-implementer contract terms would have been a leading Chinese licensee of Qualcomm’s, Huawei, the huge Chinese telecommunications company that has been accused by the U.S. government of using technological “back doors” to spy on the United States.]
Qualcomm appealed, and in August 2020 a panel of the Ninth Circuit Court of Appeals reversed the district court, holding for Qualcomm. Some of the key points underlying this holding were: (1) Qualcomm had no antitrust duty to deal with competitors, consistent with established Supreme Court precedent (a very narrow exception to this precedent did not apply); (2) Qualcomm’s rates were chip supplier neutral because all OEMs paid royalties, not just rivals’ customers; (3) the lower court failed to show how the “no license, no chips” policy harmed Qualcomm’s competitors; and (4) Qualcomm’s agreements with Apple did not have the effect of substantially foreclosing the market to competitors. The Ninth Circuit as a whole rejected the FTC’s “en banc” appeal for review of the panel decision.
The appellate decision in Qualcomm largely supports pillar four of the NMA, that unilateral and unconditional decisions not to license a patent should be deemed legal under the antitrust laws. More generally, the decision evinces a refusal to find anticompetitive harm in licensing markets without hard empirical support. The FTC and the lower court’s findings of “harm” had been essentially speculative and anecdotal at best. They had ignored the “big picture” that the markets in which Qualcomm operates had seen vigorous competition and the conferral of enormous and growing welfare benefits on consumers, year-by-year. The lower court and the FTC had also turned a deaf ear to a legitimate efficiency-related business rationale that explained Qualcomm’s “no license, no chips” policy – a fully justifiable desire to obtain a fair return on Qualcomm’s patented technology.
Qualcomm is well reasoned, and in line with sound modern antitrust precedent, but it is only one holding. The extent to which this case’s reasoning proves influential in other courts may in part depend on the policies advanced by DOJ and the FTC going forward. Thus, a preliminary examination of the Biden administration’s emerging patent-antitrust policy is warranted. [Subsequent discussion shows that the Biden administration apparently has rejected pro-consumer policies embodied in the 9th U.S. Circuit’s Qualcomm decision and in the NMA.]
Although the 9th Circuit did not comment on them, national-security-policy concerns weighed powerfully against the FTC v. Qualcomm suit. In a July 2019 Statement of Interest (SOI) filed with the circuit court, DOJ cogently set forth the antitrust flaws in the district court’s decision favoring the FTC. Furthermore, the SOI also explained that “the public interest” favored a stay of the district court holding, due to national-security concerns (described in some detail in statements by the departments of Defense and Energy, appended to the SOI):
[T]he public interest also takes account of national security concerns. Winter v. NRDC, 555 U.S. 7, 23-24 (2008). This case presents such concerns. In the view of the Executive Branch, diminishment of Qualcomm’s competitiveness in 5G innovation and standard-setting would significantly impact U.S. national security. A251-54 (CFIUS); LD ¶¶10-16 (Department of Defense); ED ¶¶9-10 (Department of Energy). Qualcomm is a trusted supplier of mission-critical products and services to the Department of Defense and the Department of Energy. LD ¶¶5-8; ED ¶¶8-9. Accordingly, the Department of Defense “is seriously concerned that any detrimental impact on Qualcomm’s position as global leader would adversely affect its ability to support national security.” LD ¶16.
The [district] court’s remedy [requiring the renegotiation of Qualcomm’s licensing contracts] is intended to deprive, and risks depriving, Qualcomm of substantial licensing revenue that could otherwise fund time-sensitive R&D and that Qualcomm cannot recover later if it prevails. See, e.g., Op. 227-28. To be sure, if Qualcomm ultimately prevails, vacatur of the injunction will limit the severity of Qualcomm’s revenue loss and the consequent impairment of its ability to perform functions critical to national security. The Department of Defense “firmly believes,” however, “that any measure that inappropriately limits Qualcomm’s technological leadership, ability to invest in [R&D], and market competitiveness, even in the short term, could harm national security. The risks to national security include the disruption of [the Department’s] supply chain and unsure U.S. leadership in 5G.” LD ¶3. Consequently, the public interest necessitates a stay pending this Court’s resolution of the merits. In these rare circumstances, the interest in preventing even a risk to national security—“an urgent objective of the highest order”—presents reason enough not to enforce the remedy immediately. Int’l Refugee Assistance Project, 137 S. Ct. at 2088 (internal quotations omitted).
Not all national-security arguments against antitrust enforcement may be well-grounded, of course. The key point is that the interests of national security and consumer-welfare-centric antitrust are fully aligned when antitrust suits would inefficiently undermine the competitive vigor of a firm or firms that play a major role in supporting U.S. national-security interests. Such was the case in FTC v. Qualcomm. More generally, heightened antitrust scrutiny of efficient patent-licensing practices (as threatened by the Biden administration) would tend to diminish innovation by U.S. patentees, particularly in areas covered by standards that are key to leading global technologies. Such a diminution in innovation will tend to weaken American advantages in important industry sectors that are vital to U.S. national-security interests.
Proposed Federal Antitrust Legislation
Proposed federal antitrust legislation being considered by Congress (see here, here, and here for informed critiques) would prescriptively restrict certain large technology companies’ business transactions. If enacted, such legislation would thereby preclude case-specific analysis of potential transaction-specific efficiencies, thereby undermining the consumer welfare standard at the heart of current sound and principled antitrust enforcement. The legislation would also be at odds with our national-security interests, as a recent U.S. Chamber of Commerce paper explains:
Congress is considering new antitrust legislation which, perversely, would weaken leading U.S. technology companies by crafting special purpose regulations under the guise of antitrust to prohibit those firms from engaging in business conduct that is widely acceptable when engaged in by rival competitors.
A series of legislative proposals – some of which already have been approved by relevant Congressional committees – would, among other things: dismantle these companies; prohibit them from engaging in significant new acquisitions or investments; require them to disclose sensitive user data and sensitive IP and trade secrets to competitors, including those that are foreign-owned and controlled; facilitate foreign influence in the United States; and compromise cybersecurity. These bills would fundamentally undermine American security interests while exempting from scrutiny Chinese and other foreign firms that do not meet arbitrary user and market capitalization thresholds specified in the legislation. …
The United States has never used legislation to punish success. In many industries, scale is important and has resulted in significant gains for the American economy, including small businesses. U.S. competition law promotes the interests of consumers, not competitors. It should not be used to pick winners and losers in the market or to manage competitive outcomes to benefit select competitors. Aggressive competition benefits consumers and society, for example by pushing down prices, disrupting existing business models, and introducing innovative products and services.
If enacted, the legislative proposals would drag the United States down in an unfolding global technological competition. Companies captured by the legislation would be required to compete against integrated foreign rivals with one hand tied behind their backs. Those firms that are the strongest drivers of U.S. innovation in AI, quantum computing, and other strategic technologies would be hamstrung or even broken apart, while foreign and state-backed producers of these same technologies would remain unscathed and seize the opportunity to increase market share, both in the U.S. and globally. …
Instead of warping antitrust law to punish a discrete group of American companies, the U.S. government should focus instead on vigorous enforcement of current law and on vocally opposing and effectively countering foreign regimes that deploy competition law and other legal and regulatory methods as industrial policy tools to unfairly target U.S. companies. The U.S. should avoid self-inflicted wounds to our competitiveness and national security that would result from turning antitrust into a weapon against dynamic and successful U.S. firms.
Consistent with this analysis, former Obama administration Defense Secretary Leon Panetta and former Trump administration Director of National Intelligence Dan Coats argued in a letter to U.S. House leadership (see here) that “imposing severe restrictions solely on U.S. giants will pave the way for a tech landscape dominated by China — echoing a position voiced by the Big Tech companies themselves.”
The national-security arguments against current antitrust legislative proposals, like the critiques of the unfounded FTC v. Qualcomm case, represent an alignment between sound antitrust policy and national-security analysis. Unfounded antitrust attacks on efficient business practices by large firms that help maintain U.S. technological leadership in key areas undermine both principled antitrust and national security.
Enlightened antitrust enforcement, centered on consumer welfare, can and should be read in a manner that is harmonious with national-security interests.
The cooperation between U.S. federal antitrust enforcers and the DOD in assessing defense-industry mergers and joint ventures is, generally speaking, an example of successful harmonization. This success reflects the fact that antitrust enforcers carry out their reviews of those transactions with an eye toward accommodating efficiencies that advance defense goals without sacrificing consumer welfare. Close antitrust-agency consultation with DOD is key to that approach.
Unfortunately, federal enforcement directed toward efficient intellectual-property licensing, as manifested in the Qualcomm case, reflects a disharmony between antitrust and national security. This disharmony could be eliminated if DOJ and the FTC adopted a dynamic view of intellectual property and the substantial economic-welfare benefits that flow from restrictive patent-licensing transactions.
In sum, a dynamic analysis reveals that consumer welfare is enhanced, not harmed, by not subjecting such licensing arrangements to antitrust threat. A more permissive approach to licensing is thus consistent with principled antitrust and with the national security interest of protecting and promoting strong American intellectual property (and, in particular, patent) protection. The DOJ and the FTC should keep this in mind and make appropriate changes to their IP-antitrust policies forthwith.
Finally, proposed federal antitrust legislation would bring about statutory changes that would simultaneously displace consumer welfare considerations and undercut national security interests. As such, national security is supported by rejecting unsound legislation, in order to keep in place consumer-welfare-based antitrust enforcement.
President Joe Biden’s July 2021 executive order set forth a commitment to reinvigorate U.S. innovation and competitiveness. The administration’s efforts to pass the America COMPETES Act would appear to further demonstrate a serious intent to pursue these objectives.
Yet several actions taken by federal agencies threaten to undermine the intellectual-property rights and transactional structures that have driven the exceptional performance of U.S. firms in key areas of the global innovation economy. These regulatory missteps together represent a policy “lose-lose” that lacks any sound basis in innovation economics and threatens U.S. leadership in mission-critical technology sectors.
Life Sciences: USTR Campaigns Against Intellectual-Property Rights
In the pharmaceutical sector, the administration’s signature action has been an unprecedented campaign by the Office of the U.S. Trade Representative (USTR) to block enforcement of patents and other intellectual-property rights held by companies that have broken records in the speed with which they developed and manufactured COVID-19 vaccines on a mass scale.
Patents were not an impediment in this process. To the contrary: they were necessary predicates to induce venture-capital investment in a small firm like BioNTech, which undertook drug development and then partnered with the much larger Pfizer to execute testing, production, and distribution. If success in vaccine development is rewarded with expropriation, this vital public-health sector is unlikely to attract investors in the future.
Contrary to increasingly common assertions that the Bayh-Dole Act (which enables universities to seek patents arising from research funded by the federal government) “robs” taxpayers of intellectual property they funded, the development of Covid-19 vaccines by scientist-founded firms illustrates how the combination of patents and private capital is essential to convert academic research into life-saving medical solutions. The biotech ecosystem has long relied on patents to structure partnerships among universities, startups, and large firms. The costly path from lab to market relies on a secure property-rights infrastructure to ensure exclusivity, without which no investor would put capital at stake in what is already a high-risk, high-cost enterprise.
This is not mere speculation. During the decades prior to the Bayh-Dole Act, the federal government placed strict limitations on the ability to patent or exclusively license innovations arising from federally funded research projects. The result: the market showed little interest in making the investment needed to convert those innovations into commercially viable products that might benefit consumers. This history casts great doubt on the wisdom of the USTR’s campaign to limit the ability of biopharmaceutical firms to maintain legal exclusivity over certain life sciences innovations.
Genomics: FTC Attempts to Block the Illumina/GRAIL Acquisition
In the genomics industry, the Federal Trade Commission (FTC) has devoted extensive resources to oppose the acquisition by Illumina—the market leader in next-generation DNA-sequencing equipment—of a medical-diagnostics startup, GRAIL (an Illumina spinoff), that has developed an early-stage cancer screening test.
It is hard to see the competitive threat. GRAIL is a pre-revenue company that operates in a novel market segment and its diagnostic test has not yet received approval from the Food and Drug Administration (FDA). To address concerns over barriers to potential competitors in this nascent market, Illumina has committed to 12-year supply contracts that would bar price increases or differential treatment for firms that develop oncology-detection tests requiring use of the Illumina platform.
The FTC’s case against Illumina’s re-acquisition of GRAIL relies on theoretical predictions of consumer harm in a market that is not yet operational. Hypothetical market failure scenarios may suit an academic seminar but fall well below the probative threshold for antitrust intervention.
Most critically, the Illumina enforcement action places at-risk a key element of well-functioning innovation ecosystems. Economies of scale and network effects lead technology markets to converge on a handful of leading platforms, which then often outsource research and development by funding and sometimes acquiring smaller firms that develop complementary technologies. This symbiotic relationship encourages entry and benefits consumers by bringing new products to market as efficiently as possible.
If antitrust interventions based on regulatory fiat, rather than empirical analysis, disrupt settled expectations in the M&A market that innovations can be monetized through acquisition transactions by larger firms, venture capital may be unwilling to fund such startups in the first place. Independent development or an initial public offering are often not feasible exit options. It is likely that innovation will then retreat to the confines of large incumbents that can fund research internally but often execute it less effectively.
Wireless Communications: DOJ Takes Aim at Standard-Essential Patents
Wireless communications stand at the heart of the global transition to a 5G-enabled “Internet of Things” that will transform business models and unlock efficiencies in myriad industries. It is therefore of paramount importance that policy actions in this sector rest on a rigorous economic basis. Unfortunately, a recent policy shift proposed by the U.S. Department of Justice’s (DOJ) Antitrust Division does not meet this standard.
In December 2021, the Antitrust Division released a draft policy statement that would largely bar owners of standard-essential patents from seeking injunctions against infringers, which are usually large device manufacturers. These patents cover wireless functionalities that enable transformative solutions in myriad industries, ranging from communications to transportation to health care. A handful of U.S. and European firms lead in wireless chip design and rely on patent licensing to disseminate technology to device manufacturers and to fund billions of dollars in research and development. The result is a technology ecosystem that has enjoyed continuous innovation, widespread user adoption, and declining quality-adjusted prices.
Rather than promoting competition or innovation, the proposed policy would simply transfer wealth from firms that develop new technologies at great cost and risk to firms that prefer to use those technologies at no cost at all. This does not benefit anyone other than device manufacturers that already capture the largest portion of economic value in the smartphone supply chain.
From international trade to antitrust to patent policy, the administration’s actions imply little appreciation for the property rights and contractual infrastructure that support real-world innovation markets. In particular, the administration’s policies endanger the intellectual-property rights and monetization pathways that support market incentives to invest in the development and commercialization of transformative technologies.
This creates an inviting vacuum for strategic rivals that are vigorously pursuing leadership positions in global technology markets. In industries that stand at the heart of the knowledge economy—life sciences, genomics, and wireless communications—the administration is on a counterproductive trajectory that overlooks the business realities of technology markets and threatens to push capital away from the entrepreneurs that drive a robust innovation ecosystem. It is time to reverse course.
Antitrust policymakers around the world have taken a page out of the Silicon Valley playbook and decided to “move fast and break things.” While the slogan is certainly catchy, applying it to the policymaking world is unfortunate and, ultimately, threatens to harm consumers.
Several antitrust authorities in recent months have announced their intention to block (or, at least, challenge) a spate of mergers that, under normal circumstances, would warrant only limited scrutiny and face little prospect of outright prohibition. This is notably the case of several vertical mergers, as well as mergers between firms that are only potential competitors (sometimes framed as “killer acquisitions”). These include Facebook’s acquisition of Giphy (U.K.); Nvidia’s ARM Ltd. deal (U.S., EU, and U.K.), and Illumina’s purchase of GRAIL (EU). It is also the case for horizontal mergers in non-concentrated markets, such as WarnerMedia’s proposed merger with Discovery, which has faced significant political backlash.
Some of these deals fail even to implicate “traditional” merger-notification thresholds. Facebook’s purchase of Giphy was only notifiable because of the U.K. Competition and Markets Authority’s broad interpretation of its “share of supply test” (which eschews traditional revenue thresholds). Likewise, the European Commission relied on a highly controversial interpretation of the so-called “Article 22 referral” procedure in order to review Illumina’s GRAIL purchase.
Some have praised these interventions, claiming antitrust authorities should take their chances and prosecute high-profile deals. It certainly appears that authorities are pressing their luck because they face few penalties for wrongful prosecutions. Overly aggressive merger enforcement might even reinforce their bargaining position in subsequent cases. In other words, enforcers risk imposing social costs on firms and consumers because their incentives to prosecute mergers are not aligned with those of society as a whole.
None of this should come as a surprise to anyone who has been following this space. As my ICLE colleagues and I have been arguing for quite a while, weakening the guardrails that surround merger-review proceedings opens the door to arbitrary interventions that are difficult (though certainly not impossible) to remediate before courts.
A Simplified Model of Legal Disputes
The negotiations that surround merger-review proceedings involve firms and authorities bargaining in the shadow of potential litigation. Whether and which concessions are made will depend chiefly on what the parties believe will be the outcome of litigation. If firms think courts will safeguard their merger, they will offer authorities few potential remedies. Conversely, if authorities believe courts will support their decision to block a merger, they are unlikely to accept concessions that stop short of the parties withdrawing their deal.
This simplified model suggests that neither enforcers nor merging parties are in position to “exploit” the merger-review process, so long as courts review decisions effectively. Under this model, overly aggressive enforcement would merely lead to defeat in court (and, expecting this, merging parties would offer few concessions to authorities).
Put differently, court proceedings are both a dispute-resolution mechanism and a source of rulemaking. The result is that only marginal cases should lead to actual disputes. Most harmful mergers will be deterred, and clearly beneficial ones will be cleared rapidly. So long as courts apply the consumer welfare standard consistently, firms’ merger decisions—along with any rulings or remedies—all should primarily serve consumers’ interests.
At least, that is the theory. But there are factors that can serve to undermine this efficient outcome. In the field of merger control, this is notably the case with court delays that prevent parties from effectively challenging merger decisions.
While delays between when a legal claim is filed and a judgment is rendered aren’t always detrimental (as Richard Posner observes, speed can be costly), it is essential that these delays be accounted for in any subsequent damages and penalties. Parties that prevail in court might otherwise only obtain reparations that are below the market rate, reducing the incentive to seek judicial review in the first place.
The problem is particularly acute when it comes to merger reviews. Merger challenges might lead the parties to abandon a deal because they estimate the transaction will no longer be commercially viable by the time courts have decided the matter. This is a problem, insofar as neither U.S. nor EU antitrust law generally requires authorities to compensate parties for wrongful merger decisions. For example, courts in the EU have declined to fully compensate aggrieved companies (e.g., the CFI in Schneider) and have set an exceedingly high bar for such claims to succeed at all.
In short, parties have little incentive to challenge merger decisions if the only positive outcome is for their deals to be posthumously sanctified. This smaller incentive to litigate may be insufficient to create enough cases that would potentially helpful precedent for future merging firms. Ultimately, the balance of bargaining power is tilted in favor of competition authorities.
Some Data on Mergers
While not necessarily dispositive, there is qualitative evidence to suggest that parties often drop their deals when authorities either block them (as in the EU) or challenge them in court (in the United States).
U.S. merging parties nearly always either reach a settlement or scrap their deal when their merger is challenged. There were 43 transactions challenged by either the U.S. Justice Department (15) or the Federal Trade Commission (28) in 2020. Of these, 15 were abandoned and almost all the remaining cases led to settlements.
The EU picture is similar. The European Commission blocks, on average, about one merger every year (30 over the last 31 years). Most in-depth investigations are settled in exchange for remedies offered by the merging firms (141 out of 239). While the EU does not publish detailed statistics concerning abandoned mergers, it is rare for firms to appeal merger-prohibition decisions. The European Court of Justice’s database lists only six such appeals over a similar timespan. The vast majority of blocked mergers are scrapped, with the parties declining to appeal.
This proclivity to abandon mergers is surprising, given firms’ high success rate in court. Of the six merger-annulment appeals in the ECJ’s database (CK Hutchison Holdings Ltd.’s acquisition of Telefónica Europe Plc; Ryanair’s acquisition of a controlling stake in Aer Lingus; a proposed merger between Deutsche Börse and NYSE Euronext; Tetra Laval’s takeover of Sidel Group; a merger between Schneider Electric SA and Legrand SA; and Airtours’ acquisition of First Choice) merging firms won four of them. While precise numbers are harder to come by in the United States, it is also reportedly rare for U.S. antitrust enforcers to win merger-challenge cases.
One explanation is that only marginal cases ever make it to court. In other words, firms with weak cases are, all else being equal, less likely to litigate. However, that is unlikely to explain all abandoned deals.
There are documented cases in which it was clearly delays, rather than self-selection, that caused firms to scrap planned mergers. In the EU’s Airtours proceedings, the merging parties dropped their transaction even though they went on to prevail in court (and First Choice, the target firm, was acquired by another rival). This is inconsistent with the notion that proposed mergers are abandoned only when the parties have a weak case to challenge (the Commission’s decision was widely seen as controversial).
Antitrust policymakers also generally acknowledge that mergers are often time-sensitive. That’s why merger rules on both sides of the Atlantic tend to impose strict timelines within which antitrust authorities must review deals.
In the end, if self-selection based on case strength were the only criteria merging firms used in deciding to appeal a merger challenge, one would not expect an equilibrium in which firms prevail in more than two-thirds of cases. If firms anticipated that a successful court case would preserve a multi-billion dollar merger, the relatively small burden of legal fees should not dissuade them from litigating, even if their chance of success was tiny. We would expect to see more firms losing in court.
The upshot is that antitrust challenges and prohibition decisions likely cause at least some firms to abandon their deals because court proceedings are not seen as an effective remedy. This perception, in turn, reinforces authorities’ bargaining position and thus encourages firms to offer excessive remedies in hopes of staving off lengthy litigation.
A general rule of policymaking is that rules should seek to ensure that agents internalize both the positive and negative effects of their decisions. This, in turn, should ensure that they behave efficiently.
In the field of merger control, those incentives are misaligned. Given the prevailing political climate on both sides of the Atlantic, challenging large corporate acquisitions likely generates important political capital for antitrust authorities. But wrongful merger prohibitions are unlikely to elicit the kinds of judicial rebukes that would compel authorities to proceed more carefully.
Put differently, in the field of antitrust law, court proceedings ought to serve as a guardrail to ensure that enforcement decisions ultimately benefit consumers. When that shield is removed, it is no longer a given that authorities—who, in theory, act as agents of society—will act in the best interests of that society, rather than maximize their own preferences.
Ideally, we should ensure that antitrust authorities bear the social costs of faulty decisions, by compensating, at least, the direct victims of their actions (i.e., the merging firms). However, this would likely require new legislation to that effect, as there currently are too many obstacles to such cases. It is thus unlikely to represent a short-term solution.
In the meantime, regulatory restraint appears to be the only realistic solution. Or, one might say, authorities should “move carefully and avoid breaking stuff.”
[Judge Douglas Ginsburg was invited to respond to the Beesley Lecture given by Andrea Coscelli, chief executive of the U.K. Competition and Markets Authority (CMA). Both the lecture and Judge Ginsburg’s response were broadcast by the BBC on Oct. 28, 2021. The text of Mr. Coscelli’s Beesley lecture is available on the CMA’s website. Judge Ginsburg’s response follows below.]
Thank you, Victoria, for the invitation to respond to Mr. Coscelli and his proposal for a legislatively founded Digital Markets Unit. Mr. Coscelli is one of the most talented, successful, and creative heads a competition agency has ever had. In the case of the DMU [ed., Digital Markets Unit], however, I think he has let hope triumph over experience and prudence. This is often the case with proposals for governmental reform: Indeed, it has a name, the Nirvana Fallacy, which comes from comparing the imperfectly functioning marketplace with the perfectly functioning government agency. Everything we know about the regulation of competition tells us the unintended consequences may dwarf the intended benefits and the result may be a less, not more, competitive economy. The precautionary principle counsels skepticism about such a major and inherently risky intervention.
Mr. Coscelli made a point in passing that highlights the difference in our perspectives: He said the SMS [ed.,strategic market status] merger regime would entail “a more cautious standard of proof.” In our shared Anglo-American legal culture, a more cautious standard of proof means the government would intervene in fewer, not more, market activities; proof beyond a reasonable doubt in criminal cases is a more cautious standard than a mere preponderance of the evidence. I, too, urge caution, but of the traditional kind.
I will highlight five areas of concern with the DMU proposal.
I. Chilling Effects
The DMU’s ability to designate a firm as being of strategic market significance—or SMS—will place a potential cloud over innovative activity in far more sectors than Mr. Coscelli could mention in his lecture. He views the DMU’s reach as limited to a small number of SMS-designated firms; and that may prove true, but there is nothing in the proposal limiting DMU’s reach.
Indeed, the DMU’s authority to regulate digital markets is surely going to be difficult to confine. Almost every major retail activity or consumer-facing firm involves an increasingly significant digital component, particularly after the pandemic forced many more firms online. Deciding which firms the DMU should cover seems easy in theory, but will prove ever more difficult and cumbersome in practice as digital technology continues to evolve. For instance, now that money has gone digital, a bank is little more than a digital platform bringing together lenders (called depositors) and borrowers, much as Amazon brings together buyers and sellers; so, is every bank with market power and an entrenched position to be subject to rules and remedies laid down by the DMU as well as supervision by the bank regulators? Is Aldi in the crosshairs now that it has developed an online retail platform? Match.com, too? In short, the number of SMS firms will likely grow apace in the next few years.
II. SMS Designations Should Not Apply to the Whole Firm
The CMA’s proposal would apply each SMS designation firm-wide, even if the firm has market power in a single line of business. This will inhibit investment in further diversification and put an SMS firm at a competitive disadvantage across all its businesses.
Perhaps company-wide SMS designations could be justified if the unintended costs were balanced by expected benefits to consumers, but this will not likely be the case. First, there is little evidence linking consumer harm to lines of business in which large digital firms do not have market power. On the contrary, despite the discussion of Amazon’s supposed threat to competition, consumers enjoy lower prices from many more retailers because of the competitive pressure Amazon brings to bear upon them.
Second, the benefits Mr. Coscelli expects the economy to reap from faster government enforcement are, at best, a mixed blessing. The proposal, you see, reverses the usual legal norm, instead making interim relief the rule rather than the exception. If a firm appeals its SMS designation, then under the CMA’s proposal, the DMU’s SMS designations and pro-competition interventions, or PCIs, will not be stayed pending appeal, raising the prospect that a firm’s activities could be regulated for a significant period even though it was improperly designated. Even prevailing in the courts may be a Pyrrhic victory because opportunities will have slipped away. Making matters worse, the DMU’s designation of a firm as SMS will likely receive a high degree of judicial deference, so that errors may never be corrected.
III. The DMU Cannot Be Evidence-based Given its Goals and Objectives
The DMU’s stated goal is to “further the interests of consumers and citizens in digital markets by promoting competition and innovation.” DMU’s objectives for developing codes of conduct are: fair trading, open choices, and trust and transparency. Fairness, openness, trust, and transparency are all concepts that are difficult to define and probably impossible to quantify. Therefore, I fear Mr. Coscelli’s aspiration that the DMU will be an evidence-based, tailored, and predictable regime seem unrealistic. The CMA’s idea of “an evidence-based regime” seems destined to rely mostly upon qualitative conjecture about the potential for the code of conduct to set “rules of the game” that encourage fair trading, open choices, trust, and transparency. Even if the DMU commits to considering empirical evidence at every step of its process, these fuzzy, qualitative objectives will allow it to come to virtually any conclusion about how a firm should be regulated.
Implementing those broad goals also throws into relief the inevitable tensions among them. Some potential conflicts between DMU’s objectives for developing codes of conduct are clear from the EU’s experience. For example, one of the things DMU has considered already is stronger protection for personal data. The EU’s experience with the GDPR shows that data protection is costly and, like any costly requirement, tends to advantage incumbents and thereby discourage new entry. In other words, greater data protections may come at the expense of start-ups or other new entrants and the contribution they would otherwise have made to competition, undermining open choices in the name of data transparency.
Another example of tension is clear from the distinction between Apple’s iOS and Google’s Android ecosystems. They take different approaches to the trade-off between data privacy and flexibility in app development. Apple emphasizes consumer privacy at the expense of allowing developers flexibility in their design choices and offers its products at higher prices. Android devices have fewer consumer-data protections but allow app developers greater freedom to design their apps to satisfy users and are offered at lower prices. The case of Epic Games v. Apple put on display the purportedly pro-competitive arguments the DMU could use to justify shutting down Apple’s “walled garden,” whereas the EU’s GDPR would cut against Google’s open ecosystem with limited consumer protections. Apple’s model encourages consumer trust and adoption of a single, transparent model for app development, but Google’s model encourages app developers to choose from a broader array of design and payment options and allows consumers to choose between the options; no matter how the DMU designs its code of conduct, it will be creating winners and losers at the cost of either “open choices” or “trust and transparency.” As experience teaches is always the case, it is simply not possible for an agency with multiple goals to serve them all at the same time. The result is an unreviewable discretion to choose among them ad hoc.
Finally, notice that none of the DMU’s objectives—fair trading, open choices, and trust and transparency—revolves around quantitative evidence; at bottom, these goals are not amenable to the kind of rigor Mr. Coscelli hopes for.
IV. Speed of Proposals
Mr. Coscelli has emphasized the slow pace of competition law matters; while I empathize, surely forcing merging parties to prove a negative and truncating their due process rights is not the answer.
As I mentioned earlier, it seems a more cautious standard of proof to Mr. Coscelli is one in which an SMS firm’s proposal to acquire another firm is presumed, or all but presumed, to be anticompetitive and unlawful. That is, the DMU would block the transaction unless the firms can prove their deal would not be anticompetitive—an extremely difficult task. The most self-serving version of the CMA’s proposal would require it to prove only that the merger poses a “realistic prospect” of lessening competition, which is vague, but may in practice be well below a 50% chance. Proving that the merged entity does not harm competition will still require a predictive forward-looking assessment with inherent uncertainty, but the CMA wants the costs of uncertainty placed upon firms, rather than it. Given the inherent uncertainty in merger analysis, the CMA’s proposal would pose an unprecedented burden of proof on merging parties.
But it is not only merging parties the CMA would deprive of due process; the DMU’s so-called pro-competitive interventions, or PCI, SMS designations, and code-of-conduct requirements generally would not be stayed pending appeal. Further, an SMS firm could overturn the CMA’s designation only if it could overcome substantial deference to the DMU’s fact-finding. It is difficult to discern, then, the difference between agency decisions and final orders.
The DMU would not have to show or even assert an extraordinary need for immediate relief. This is the opposite of current practice in every jurisdiction with which I am familiar. Interim orders should take immediate effect only in exceptional circumstances, when there would otherwise be significant and irreversible harm to consumers, not in the ordinary course of agency decision making.
V. Antitrust Is Not Always the Answer
Competition law remedies are sometimes poorly matched to the problems a government is trying to correct. Mr. Coscelli discusses the possibility of strong interventions, such as forcing the separation of a platform from its participation in retail markets; for example, the DMU could order Amazon to spin off its online business selling and shipping its own brand of products. Such powerful remedies can be a sledgehammer; consider forced data sharing or interoperability to make it easier for new competitors to enter. For example, if Apple’s App Store is required to host all apps submitted to it in the interest of consumer choice, then Apple loses its ability to screen for security, privacy, and other consumer benefits, as its refusal to deal is its only way to prevent participation in its store. Further, it is not clear consumers want Apple’s store to change; indeed, many prefer Apple products because of their enhanced security.
Forced data sharing would also be problematic; the hiQ v. LinkedIn case in the United States should serve as a cautionary tale. The trial court granted a preliminary injunction forcing LinkedIn to allow hiQ to scrape its users’ profiles while the suit was ongoing. LinkedIn ultimately won the suit because it did not have market power, much less a monopoly, in any relevant market. The court concluded each theory of anticompetitive conduct was implausible, but meanwhile LinkedIn had been forced to allow hiQ to scrape its data for an extended period before the final decision. There is no simple mechanism to “unshare” the data now that LinkedIn has prevailed. This type of case could be common under the CMA proposal because the DMU’s orders will go into immediate effect.
There is potentially much redeeming power in the Digital Regulation Co-operation Forum as Mr. Coscelli described it, but I take a different lesson from this admirable attempt to coordinate across agencies: Perhaps it is time to look beyond antitrust to solve problems that are not based upon market power. As the DRCF highlights, there are multiple agencies with overlapping authority in the digital market space. ICO and Ofcom each have authority to take action against a firm that disseminates fake news or false advertisements. Mr. Coscelli says it would be too cumbersome to take down individual bad actors, but, if so, then the solution is to adopt broader consumer protection rules, not apply an ill-fitting set of competition law rules. For example, the U.K. could change its notice-and-takedown rules to subject platforms to strict liability if they host fake news, even without knowledge that they are doing so, or perhaps only if they are negligent in discharging their obligation to police against it.
Alternatively, the government could shrink the amount of time platforms have to take down information; France gives platforms only about an hour to remove harmful information. That sort of solution does not raise the same prospect of broadly chilling market activity, but still addresses one of the concerns Mr. Coscelli raises with digital markets.
In sum, although Mr. Coscelli is of course correct that competition authorities and governments worldwide are considering whether to adopt broad reforms to their competition laws, the case against broadening remains strong. Instead of relying upon the self-corrective potential of markets, which is admittedly sometimes slower than anyone would like, the CMA assumes markets need regulation until firms prove otherwise. Although clearly well-intentioned, the DMU proposal is in too many respects not met to the task of protecting competition in digital markets; at worst, it will inhibit innovation in digital markets to the point of driving startups and other innovators out of the U.K.
The Federal Trade Commission (FTC) has taken another step away from case-specific evaluation of proposed mergers and toward an ex ante regulatory approach in its Oct. 25 “Statement of the Commission on Use of Prior Approval Provisions in Merger Orders.” Though not unexpected, this unfortunate initiative once again manifests the current FTC leadership’s disdain for long-accepted economically sound antitrust-enforcement principles.
High levels of merger activity should, generally speaking, be viewed as a symptom of a vibrant economy, not a reason for economic concern. Horizontal mergers typically are driven by the potential to realize real cost savings, unrelated to anticompetitive reductions in output.
Non-horizontal mergers often put into force welfare-enhancing reductions of double marginalization, while uniting complements and achieving synergies in ways that seek efficiencies. More generally, proposed acquisitions frequently reflect an active market for corporate control that seeks to reallocate scarce resources to higher-valued uses (see, for example, Henry Manne’s seminal article on “Mergers and the Market for Corporate Control”). Finally, by facilitating cost reductions, synergies, and improvements in resource allocations within firms, mergers may allow the new consolidated entity to compete more effectively in the marketplace, thereby enhancing competition.
Given the economic benefits frequently generated by mergers, government antitrust enforcers should not discourage them, nor should they intervene to block them, absent a strong showing that a particular transaction would likely reduce competition and harm consumer welfare. In the United States, the Hart-Scott-Rodino Premerger Notification Act of 1976 (HSR) and its implementing regulations generally have reflected this understanding. They have done this by requiring that proposed transactions above a certain size threshold be notified to the FTC and the U.S. Justice Department (DOJ), and by providing a framework for timely review, allowing most notified mergers to close promptly.
In the relatively few cases where agency enforcement staff have identified competitive problems, the HSR framework usually has enabled timely negotiation of possible competitive fixes (divestitures and, less typically, behavioral remedies). Where fixes have not been feasible, filing parties generally have been able to decide whether to drop a transaction or prepare for litigation within a reasonable time period. Under the HSR framework, enforcers generally have respected the time sensitivity of merger proposals and acted expeditiously (with a few exceptions) to review complicated and competitively sensitive transactions. The vast majority of HSR filings that facially raise no plausible competitive issues historically have been dealt with swiftly—often through “early termination” policies that provide the merging parties an antitrust go-ahead well before the end of HSR’s initial 30-day review period.
In short, although far from perfect, HSR processes have sought to minimize regulatory impediments to merger activity, consistent with the statutory mandate to identify and prevent anticompetitive mergers.
Regrettably, under the leadership of Chair Lina M. Khan, the FTC has taken unprecedented steps to undermine the well-understood HSR framework. As I wrote recently:
For decades, parties proposing mergers that are subject to statutory Hart-Scott-Rodino (HSR) Act pre-merger notification requirements have operated under the understanding that:
1. The FTC and U.S. Justice Department (DOJ) will routinely grant “early termination” of review (before the end of the initial 30-day statutory review period) to those transactions posing no plausible competitive threat; and
2. An enforcement agency’s decision not to request more detailed documents (“second requests”) after an initial 30-day pre-merger review effectively serves as an antitrust “green light” for the proposed acquisition to proceed.
Those understandings, though not statutorily mandated, have significantly reduced antitrust uncertainty and related costs in the planning of routine merger transactions. The rule of law has been advanced through an effective assurance that business combinations that appear presumptively lawful will not be the target of future government legal harassment. This has advanced efficiency in government, as well; it is a cost-beneficial optimal use of resources for DOJ and the FTC to focus exclusively on those proposed mergers that present a substantial potential threat to consumer welfare.
Two recent FTC pronouncements (one in tandem with DOJ), however, have generated great uncertainty by disavowing (at least temporarily) those two welfare-promoting review policies. Joined by DOJ, the FTC on Feb. 4 announced that the agencies would temporarily suspend early terminations, citing an “unprecedented volume of filings” and a transition to new leadership. More than six months later, this “temporary” suspension remains in effect.
Citing “capacity constraints” and a “tidal wave of merger filings,” the FTC subsequently published an Aug. 3 blog post that effectively abrogated the 30-day “green lighting” of mergers not subject to a second request. It announced that it was sending “warning letters” to firms reminding them that FTC investigations remain open after the initial 30-day period, and that “[c]ompanies that choose to proceed with transactions that have not been fully investigated are doing so at their own risk.”
The FTC’s actions interject unwarranted uncertainty into merger planning and undermine the rule of law. Preventing early termination on transactions that have been approved routinely not only imposes additional costs on business; it hints that some transactions might be subject to novel theories of liability that fall outside the antitrust consensus.
The FTC’s merger-review reign of error continues. Most recently, it released a policy guidance statement that effectively transforms the commission into a merger regulator whose assent is required for a specific category of mergers. This policy is at odds with HSR, which is designed to facilitate merger reviews, not to serve as a regulatory-approval mechanism. As the FTC explains in its Oct. 25 statement(citation to 1995 Statement omitted) (approved by a 3-2 vote, with Commissioners Noah Joshua Phillips and Christine S. Wilson dissenting):
On July 21, 2021, the Commission voted to rescind the 1995 Policy Statement on Prior Approval and Prior Notice Provisions (“1995 Statement”). The 1995 Statement ended the Commission’s then-longstanding practice of incorporating prior approval and prior notice provisions in Commission orders addressing mergers. With the rescission of the 1995 statement, the Commission returns now to its prior practice of routinely requiring merging parties subject to a Commission order to obtain prior approval from the FTC before closing any future transaction affecting each relevant market for which a violation was alleged. . . .
In addition, from now on, in matters where the Commission issues a complaint to block a merger and the parties subsequently abandon the transaction, the agency will engage in a case-specific determination as to whether to pursue a prior approval order, focusing on the factors identified below with respect to use of broader prior approval provisions. The fact that parties may abandon a merger after litigation commences does not guarantee that the
Commission will not subsequently pursue an order incorporating a prior approval provision. . . . In some situations where stronger relief is needed, the Commission may decide to seek a prior approval provision that covers product and geographic markets beyond just the relevant product and geographic markets affected by the merger. No single factor is dispositive; rather, the Commission will take a holistic view of the circumstances when determining the length and breadth of prior approval provisions. [Six factors listed include the nature of the transaction; the level of market concentration; the degree to which the transaction increases concentration; the degree to which one of the parties pre-merger likely had market power; the parties’ history of acquisitiveness; and evidence of anticompetitive market dynamics.]
The Oct. 25 Statement is highly problematic in several respects. Its oversight requirements may discourage highly effective consent decree “fixes” of potential mergers, leading to wasteful litigation—or, alternatively, the abandonment of efficient transactions. What’s more, the threat of FTC prior approval orders (based on multiple criteria subject to manipulation by the FTC), even when parties abandon a proposed transaction (and thus, effectively have “done nothing”), smacks of unwarranted regulation of future corporate plans of disfavored firms, raising questions of fundamental fairness.
All told, the new requirements, combined with the FTC’s policies to end early terminations and to stop “greenlighting” routine merger transactions after a 30-day review, are yet signs that the well-understood HSR consensus has been unilaterally abandoned by the FTC, based on purely partisan commission votes, despite the lack of any public consultation. The FTC’s abrupt and arbitrary merger-review-related actions will harm the economy by discouraging welfare-promoting consolidations. These actions also fly in the face of sound public administration.
The FTC continues to move from its historic role of antitrust enforcer to that of antitrust regulator at warp speed, based on a series of 3-2 votes. In particular, the commission’s abandonment of a well-established bipartisan approach to HSR policy is particularly troublesome, given the new risks it creates for private parties considering acquisitions. These new risks will likely deter an unknown number of efficiency-enhancing, innovative combinations that could have benefited consumers and substantially strengthened the American economy.
Perhaps the imminent confirmation of Jonathan Kanter—an individual with many years of practical experience as a leading antitrust practitioner—to be assistant attorney general for antitrust will bring a more reasonable perspective to antitrust agency HSR policies. It may even convince a majority of the commission to return to the bipartisan HSR merger-review framework that has served the American economy well.
If not, perhaps congressional overseers might wish to investigate the implications for the American innovation economy and the rule of law stemming from the FTC’s de facto abandonment of HSR principles. Whether to fundamentally alter merger-review procedures should be up to Congress, not to three unelected officials.