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This book presents the proceedings of a conference held in Arlington, Virginia, on May 29, 2015, with the cooperation of the journal Concurrences and the Law & Economics Center at George Mason University School of Law. Its general focus is on the effectiveness of agencies and jurisdictions not only in detecting market power through the identification of relevant markets, the use of economic evidence for collusion and the impact on market structures, but also in self-correction modes and sanctions.
First, the use of economic analysis is considered in two important contributions. In their article "Use and Abuse: The Myth of Divided Antitrust Economics", Pierre-Yves Crémieux and Aaron Yeater, as economic consultants, note an undeniable convergence on the principles of "antitrust economics". How, then, can we explain such conflicting positions of economic experts on the treatment of economic evidence? The explanation given lies in the choice of the relevant criterion in a particular case. This is how, for example, a variation of more than 20% can occur between the one who establishes an additional cost and the one who denies the existence of any additional cost. Francine Lafontaine, then Director of the Bureau of Economics at the FTC, entitled her paper "On the Use of Economics in Support of the Competition Mission at the FTC". This introspective view, through several cases, is obviously very valuable in assessing the use of economic analysis in competition law.
Next, three contributions should be noted on the definition of the relevant market, despite the fact that this concept has been the subject of considerable dispute in recent years as to its usefulness in economic analysis. For example, Gregory J. Werden, Senior Economic Counsel at the Antitrust Division, argues in "The Relevant Market Concept in Antitrust Law" that this analytical technique should not be regarded as a relic of a bygone era. In the face of more recent techniques for directly apprehending anti-competitive effects, he defends its importance as a preliminary operation, in particular for coordinated effects and unilateral effects in merger control and for practices covered by the Sherman Act. Lawrence J. White, Professor of Economics at New York University, agrees that this first step of the analysis should be maintained. In "The Merger Guidelines and Market Definition: A Powerful Tool for Merger Analysis", he defends the SSNIP test, while acknowledging that it is less useful for unilateral effects and monopoly cases. Loren Smith, senior vice president of Compass Lexecon and former FTC economist, provides a practical insight into differentiated use. In "The Prominence of Market Definition in Antitrust Evaluation and Litigation", xxx is this article co-authored with Maria Stoyadinova? xxx she finds that practitioners and agencies focus directly on assessing merger effects. But when it comes to preparing an argument before the judge, they return to the determination of the relevant market. This suggests that the force of habit outweighs the evolution of analytical techniques.
With regard to the core of the analysis of anti-competitive effects, two contributions are worth noting. Maureen K. Ohlhausen, Commissioner of the FTC, addresses an acute problem: barriers to market entry for the benefit of incumbent operators. Inspired by the well-known children’s game "Mother May I?", she calls her contribution "Brother, May I?: The Challenge of Competitor Control over Market Entry". Requesting permission to compete is totally incompatible with the market economy and with the fundamental freedom of each individual. Presenting herself as a libertarian, she could not fail to express her first critical views on the legislation protecting incumbent operators in their rents. In this respect, she presents two cases which show the limits of the State Action doctrine when it is appropriate to question a regulation of State origin. It is only in a third case that she considers a private operator in a quasi-monopoly situation and its predatory behaviour through a practice of discounting. Its statement ends with a firm support for entrants that disrupt rigidified markets. Such is the case of Uber or Lyft and Sidecar. In addition, William H. Page, professor at the University of Florida, provides an analysis grid in "Signaling and Agreement under Section 1 of the Sherman Act". It is a question of making a distinction between licit and illicit exchanges of information. According to him, pre-arranged exchanges are clearly illegal, while exchanges between competitors are the most doubtful. On the other hand, implicit information, such as statements in the press which may act as signals, should be considered lawful.
As for the implementation of corrective measures, three contributions are devoted to this. Carlos Mena-Labarthe, head of the Mexican Competition Authority, testifies in "Negotiation of Settlements and Remedies by Young Competition Agencies: The Mexican Experience" to the difficulties in verifying the effectiveness of remedies. He outlines the criteria for developing policy in this area: legitimacy, credibility, deterrence, predictability. Two other contributions deal with the nature and effectiveness of sanctions. The debate focuses on cartels and the refinement of deterrence policies in this area. Daniel L. Rubinfeld, in "Improving Antitrust Sanctions", on the one hand, and Keith N. Hylton, in "Should Antitrust Fines Target Firms or Agents", on the other hand, discuss the argument that the pressure on individuals should be shifted, since increasing fines is not deterrent. Keith N. Hylton considers that it is difficult to do without fines in order to focus everything on punishing individuals. Based on the theory of the agency and its costs, there is every reason to believe that the company will reward its convicted agent. In his view, the radical elimination of any incentive to price fixing remains the best deterrent policy. In contrast, Daniel L. Rubinfeld is more sensitive to the prospect of greater pressure on individuals. In order to increase deterrence, he advocates improving both private and public enforcement by exploiting appropriate prison sentences and rewards for whistleblowers.
In conclusion, it is worth noting the contribution of John D. Harkrider, lawyer, who returns to the rather tenuous line between antitrust law enforcement and regulation. Strict enforcement deals with past conduct, prescribes a cessation and applies sanctions, while regulation apprehends future conduct, seeks remedies and applies self-proclaimed rules. In his paper "Betwixt and Between: The FTC and DOJ as Regulators and Law Enforcers," John D. Harkrider argues that both institutions are leaning dangerously toward regulation. For this reason, he recommends increased transparency and stakeholder consultation in the development of the guidelines. We can agree that this is already largely the case in Europe.
[The opinions expressed in this review are personal and do not engage the author’s institution.]
