antitrust and competition

The European Union’s Digital Markets Act (DMA), designed to regulate Big Tech, supplements current antitrust laws that pursue case-by-case analyses of business conduct with general rules to block potentially anticompetitive behaviors. Detractors criticize the DMA for its lack of nuance. Supporters applaud its general principles as a necessary bulwark against Big Tech’s market powers, which current case-by-case analysis has been unable to rein in. However, neither side appreciates the true complexity of the DMA or how its principles interact to prevent anticompetitive behavior, writes Alba Ribera Martínez.

All eyes are on labor this year. Hiba Hafiz, Boston College: 2023 was a big year for labor antitrust. We saw the rise and fall of...

Four experts on antitrust in Europe discuss the trends and cases they're watching in 2024.

Steven C. Salop evaluates the final version of the 2023 Merger Guidelines on vertical merger analysis and certain rebuttal arguments. He finds that the final Guidelines successfully incorporate developments in the economic scholarship and update antitrust enforcement with the tools to analyze non-horizontal mergers in an increasingly digital economy.

The Department of Justice Antitrust Division and Federal Trade Commission released their completed version of the new 2023 Merger Guidelines. Susan Athey, Chief Economist for the DOJ Antitrust Division, and Aviv Nevo, Director of the FTC’s Bureau of Economics, explain how the revised document addresses the comments they received on the Draft Merger Guidelines that were expressed in ProMarket and elsewhere.

Recent antitrust interventions have put forward behaviorally informed theories of harm. However, they have adopted a deterministic model of behavior, missing the nuances that allow behavioral economics to provide a richer picture of people’s conduct. The recently concluded Google trial, grounded on the stickiness of defaults, is a good example. A more careful application of behavioral economics would have shown how Google’s purchase of default search engine status was a part of a broader monopolization plan. It would also show why the dominant remedy, forced choice, would have negligible effects.

Steven C. Salop analyzes the Fifth Circuit Court’s opinion accepting the Federal Trade Commission’s suit to block Illumina’s acquisition of Grail. The ruling sheds light on how courts may approach vertical merger analysis and “litigating the fix” in the future, and what this may mean for the Merger Guidelines’ approach to vertical mergers.

The final version of the Agencies’ Merger Guidelines are a thoughtful improvement over the draft version, writes Fiona Scott Morton. Both the economic and legal analysis in the final version promise to more effectively prevent harmful mergers and bring U.S. antitrust into the modern age.

As a goal of antitrust, the consumer welfare standard has borne unfair attacks, which we refuted in a previous article. In this second article, we explain how the consumer welfare standard, understood as a method rather than as a set of goals, enables antitrust authorities and courts to navigate the inherent ambiguities of the competitive process and facilitate procompetitive outcomes.

Large digital platforms have evolved into vast multimarket/multiproduct conglomerates, both organically and through a decade-long acquisition spree. Conduct and mergers can no longer be evaluated “market-by-market.” Yet the antitrust assessment of these “ecosystems” is still in its infancy, and regulators seeking to explore harm arising from the control of multiple assets and capabilities are falling back on traditional theories of harm that are more likely to resonate with judges. Substantive progress is unlikely to emerge spontaneously from consultants or academia, and regulators will need to harness interest in this space by motivating and coordinating relevant policy research, argues Cristina Caffarra.