The FTC and the Law of Monopolization

33 Pages Posted: 25 Aug 2000  

Timothy J. Muris

George Mason University School of Law

Date Written: 2000

Abstract

Although Microsoft has attracted much more attention, recent developments at the FTC may have a greater impact on the law of monopolization. From recent pronouncements, the agency appears to believe that in monopolization cases government proof of anticompetitive effect is unnecessary. In one case, the Commission staff argued that defendants should not even be permitted to argue that its conduct lacks an anticompetitive impact. This article argues that the FTC's position is wrong on the law, on policy, and on the facts. Courts have traditionally required full analysis, including consideration of whether the practice in fact has an anticompetitive impact. Even with such analysis, the courts have condemned practices that in retrospect appear not to have been anticompetitive. Given our ignorance about the sources of a firm's success, monopolization cases must necessarily be wide-ranging in their search for whether the conduct at issue in fact created, enhanced, or preserved monopoly power, whether efficiency justifications explain such behavior, and all other relevant issues.

Suggested Citation

Muris, Timothy J., The FTC and the Law of Monopolization (2000). As published in Antitrust Law Journal, Vol. 67, No. 3, 2000. Available at SSRN: https://ssrn.com/abstract=235403 or http://dx.doi.org/10.2139/ssrn.235403

Timothy J. Muris (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8050 (Phone)
703-993-8088 (Fax)

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