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Abstract:
This essay surveys important issues in antitrust market definition. It identifies settings in which market definition is useful, and evaluates methods of defining markets. It considers whether markets should be defined with respect to demand substitution only or whether supply substitution also should count. It addresses practical issues in defining markets, including the probative value of various types of evidence, how much buyer substitution is too much, application of the market definition algorithm of the Horizontal Merger Guidelines, the Cellophane fallacy, and the advantages and disadvantages of defining submarkets. It also evaluates several controversial approaches to market definition, including price correlations, shipment flows, critical loss analysis, and cluster markets.

market definition, antitrust

Abstract:
This paper addresses an important aspect of the interdisciplinary collaboration between law and economics: the use antitrust courts can and should make of empirical industrial organization economics, in light of the expansion of empirical knowledge generated during the last few decades. First we show how courts can apply what economists have learned about identification of alternative theories of industry structure and firm strategy to the problems of defining markets and determining whether market power has been exercised. We emphasize that the same analytic issues arise regardless of whether the evidence on these concepts is quantitative or qualitative. Second we show how courts can adopt a strategy employed in the research literature, by exploiting generalizations across closely related industries to help evaluate evidence and resolve cases. We also discuss ways of increasing the institutional capacity of the judicial system to make use of these two bodies of economic learning. These include a possible limited role for neutral economic experts in litigation, and a role for the antitrust enforcement agencies in identifying and codifying relevant generalizations about industries from the empirical economic literature to make that learning available to courts.

antitrust, market definition, market power

Abstract:
The relationship between competition and innovation is the subject of a familiar controversy in economics, between the Schumpeterian view that monopolies favor innovation and the opposite view, often associated with Kenneth Arrow, that competition favors innovation. Taking their cue from this debate, some commentators reserve judgment as to whether antitrust enforcement is good for innovation. Such misgivings are unnecessary. The modern economic learning about the connection between competition and innovation helps clarify the types of firm conduct and industry settings where antitrust interventions are most likely to foster innovation. Measured against this standard, contemporary competition policy holds up well. Today's antitrust institutions support innovation by targeting types of industries and practices where antitrust enforcement would enhance research and development incentives the most. It is time to move beyond the on-the-one-hand Schumpeter, on-the-other-hand Arrow debate and embrace antitrust as essential for fostering innovation.

antitrust, innovation

Abstract:
This paper provides evidence of the necessity and success of antitrust enforcement. It begins with examples of socially beneficial antitrust challenges by the federal antitrust agencies to price-fixing and other forms of collusion; to mergers that appear likely to harm competition; and to monopolists and others that use anticompetitive exclusionary practices to obtain or maintain their market power. It then reviews systematic empirical evidence on the value of antitrust derived from informal experiments involving the behavior of U.S. firms during periods without effective antitrust enforcement, and the behavior of firms across different national antitrust regimes. Overall, it concludes, the benefits of antitrust enforcement to consumers and social welfare - particularly in deterring the harms from anticompetitive conduct across the economy - appear to be far larger than what the government spends on antitrust enforcement and firms spend directly or indirectly on antitrust compliance.

Abstract:
Three broad eras have characterized antitrust interpretation in the United States: a classical era around the end of the 19th Century, a structural era around the middle of the 20th Century, and a Chicago school perspective characterizing the last quarter of the 20th Century. This essay examines that history, asks why antitrust doctrine changes over time, and suggests some doctrinal possibilities for a new, post-Chicago era of antitrust interpretation that may be emerging.

Abstract:
Econometrics played a major role in the investigation and litigation of the Federal Trade Commission's successful challenge to the proposed merger between two office superstore chains, Staples and Office Depot. Our goal in writing this essay is to describe the econometric issues at stake in evaluating the FTC's central claim that the price charged by office supply superstores was related to the number and identity of superstore firms participating in the market. Similar statistical models were relied upon by the FTC and the merging firms to analyze pricing. Our discussion of these models highlights the advantages and disadvantages of alternative approaches to analyzing a panel data set: cross-sectional estimates versus fixed effects estimates. We also describe and evaluate modeling choices that appeared to have substantial influence on the empirical results.

Abstract:
This handbook chapter will appear in Antitrust Law & Economics (Keith Hylton, ed. forthcoming 2009). It describes the role of market concentration in the legal framework for the antitrust review of horizontal mergers and evaluates the extent to which modern economic analysis supports a role for concentration in that review. The chapter examines market definition, the predicate for measuring market shares and market concentration, and the role of market shares and concentration in the analysis of the coordinated and unilateral competitive effects of merger. The central issue considered is when and how market shares, and market concentration statistics derived from them, form an appropriate basis for presuming harm to competition from merger.

antitrust, mergers, concentration

Abstract:
The past forty years have witnessed a remarkable transformation in horizontal merger enforcement in the United States. With no change in the underlying statute, the Clayton Act, the weight given to market concentration by the federal courts and by the federal antitrust agencies has declined dramatically. Instead, increasing weight has been given to three arguments often made by merging firms in their defense: entry, expansion and efficiencies. We document this shift and provide examples where courts have approved highly concentrating mergers based on limited evidence of entry and expansion. We show using merger enforcement data and a survey we conducted of merger practitioners that the decline in antitrust enforcement is ongoing, especially at the current Justice Department. We then argue in favor of reinvigorating horizontal merger enforcement by partially restoring the structural presumption and by requiring strong evidence to overcome the government's prima facie case. We propose several routes by which the government can establish its prima facie case, distinguishing between cases involving coordinated vs. unilateral anti-competitive effects.

Abstract:
The past forty years have witnessed a remarkable transformation in horizontal merger enforcement in the United States. With no change in the underlying statute, the Clayton Act, the weight given to market concentration by the federal courts and by the federal antitrust agencies has declined dramatically. Instead, increasing weight has been given to three arguments often made by merging firms in their defense: entry, expansion and efficiencies. We document this shift and provide examples where courts have approved highly concentrating mergers based on limited evidence of entry and expansion. We show using merger enforcement data and a survey we conducted of merger practitioners that the decline in antitrust enforcement is ongoing, especially at the current Justice Department. We then argue in favor of reinvigorating horizontal merger enforcement by partially restoring the structural presumption and by requiring strong evidence to overcome the government's prima facie case. We propose several routes by which the government can establish its prima facie case, distinguishing between cases involving coordinated vs. unilateral anti-competitive effects.

horizontal mergers, merger enforcement, antitrust, coordinated effects, unilateral effects

Abstract:
A firm that discriminates in prices faces a downward sloping demand curve, and thus could potentially raise price by reducing output. For this reason, evidence of price discrimination is relevant to assessing the possibility of market power, as antitrust law has long recognized. But price discrimination can be beneficial as well as harmful, and can reasonably be termed competitive if entry is easy. Hence a demonstration that entry is easy rebuts the inference of anticompetitive effect when price discrimination is the basis for proof of market power, breaking the link between market power and anticompetitive effect. Klein and Wiley's proposal that courts should never infer market power from price discrimination is unnecessary to insulate competitive price discrimination from antitrust scrutiny, introduces a confusing distinction between market-power-in-economics and market-power-in-antitrust, and risks insulating from liability firms engaged in price discrimination when discrimination or the practices that facilitate it would harm competition.

Abstract:
Competition policy in the U.S. may be understood as a self-enforcing political bargain emerging from a repeated political interaction between two large and diffuse interest groups, consumers and producers. Absent such a bargain, regulatory policy would fluctuate between pro-producer policies that tolerate the exercise of market power and pro-consumer policies that systematically redistribute surplus from producers to consumers. This perspective is consistent with the broad contours of the historical U.S. experience with antitrust, particularly with the continuity in antitrust enforcement and decline in the political salience of competition policy since the 1940s. The adoption of Chicago school views during the late 1970s and 1980s, a notable recent period of discontinuity and heightened political salience, is best understood either as a demonstration that the political bargain is self-enforcing or as reform to increase the efficiency gains, and not as an episode inconsistent with the political bargain perspective. If competition policy represents a political bargain, enforcers and courts should seek to maximize aggregate surplus, so long as consumers and producers sufficiently share the efficiency gains, so that neither group can do better by reneging on the bargain. Current antitrust rules could not easily be exploited by consumers to transfer rents systematically from producers, so the antitrust laws should be enforced today to protect buyers without regard to aggregate surplus, unless the efficiency costs of doing so would be large.

Abstract:
This book chapter (forthcoming in Antitrust Stories) tells the story of the FTC's successful 1997 effort to block the proposed Staples/Office Depot merger. It describes the competing presentations of the FTC and the merging firms during the preliminary injunction hearing and places that trial in a broader context.

antitrust, mergers, Federal Trade Commission

Abstract:
This comment on a forthcoming article by Keith Hylton and David Evans explains why considerations of "dynamic competition" do not argue against antitrust enforcement. While the prospect of achieving monopoly may foster innovation, that observation misleads as to appropriate antitrust policy unless qualified by the observation that the push of competition generally spurs innovation more than the pull of monopoly. Moreover, the longstanding doctrinal rule that mere monopoly pricing is not illegal should not be read as demonstrating that antitrust law values monopolies for their role in promoting innovation.

antitrust, innovation, monopolization

Abstract:
The signatories to this document are economists who have studied telecommunications, auctions, and competition policy. While we may disagree about the stimulus package, we believe that it is important to implement mechanisms that make stimulus spending as efficient as possible. To that end, we have come together to encourage the National Telecommunications Information Agency (NTIA) and Rural Utilities Service (RUS) to adopt auction mechanisms to allocate broadband stimulus grants.

The broadband stimulus NOI asks which mechanisms NTIA and RUS should use to distribute grants and how those mechanisms address shortcomings in traditional grant and loan programs. In this note we explain why procurement auctions are more efficient and more consistent with the stimulus goals of allocating funds quickly than a traditional grant review process. We recommend that NTIA/RUS use procurement auctions to distribute at least part of the stimulus funds.

The American Recovery and Reinvestment Act (ARRA) requires NTIA/RUS to distribute $7.2 billion in broadband subsidies. The broadband component of the Act has dual, and not entirely consistent, objectives of providing immediate economic stimulus and improving broadband service. NTIA/RUS faces a formidable challenge in determining how to spend the money quickly and efficiently in ways that meet these goals. The traditional grant application process is long, complicated, and involves subjective and arbitrary decisions regarding which projects to fund. In other words, requesting and reviewing grant applications is not an effective way to implement the plan.

Procurement auctions, in contrast, provide a mechanism that can allocate grant money quickly, efficiently, and according to well-defined rules. As a result, procurement auctions offer NTIA/RUS the most promising method of maximizing broadband improvement while also creating some level of “temporary, timely, and targeted” stimulus. We therefore strongly recommend that NTIA/RUS adopt procurement auctions as its preferred method of distributing grants.

This memo has three parts. First, it explains why the traditional grant application process is unsuitable for this task and why procurement auctions are better suited. Second, it sketches out a procurement auction plan. This plan is intended to be a starting point from which auction design experts would proceed to build and implement a fully functional auction. Finally, we explain that even if policymakers are skeptical of procurement auctions, one could be implemented quickly as part of an initial tranche of stimulus funding in order to test its efficacy relative to traditional approaches. This approach would allow NTIA/RUS to quickly expand upon or modify the procurement auction program in subsequent funding rounds.

Abstract:
No abstract available.

Abstract:
This chapter has been prepared for inclusion in the RESEARCH HANDBOOK ON THE ECONOMICS OF ANTITRUST LAW (Einer Elhauge, ed.). It first explains why unilateral effects may result from horizontal mergers, and then describes several key models that have been developed to gauge the likelihood and/or magnitude of unilateral effects, focusing on mergers in differentiated product Bertrand markets. The remaining sections discuss extensions to these models and measurement issues that arise when implementing unilateral effects analysis in practice, highlighting ongoing and potential future topics for research.

horizontal mergers, unilateral effects