Department of Justice Antitrust Enforcement, 1955—1997: An Empirical Study

This is an empirical study of Department of Justice(DOJ) enforcement of the antitrust laws. Its purposeis fourfold:1. To update Posner's study ``A Statistical Study ofAntitrust Enforcement' (Posner, 1970, pp. 365–419).2. To provide consistent andcomparable measures of antitrustenforcement effortby the Department of Justice.3. To report these measurements in a concise andsystematic way inorder to encourage empiricalstudies of antitrust issues.4. To explore some implications for antitrustissues.The purpose is to present the overall historicalrecord of DOJ antitrust activity as well as somepatterns in that history. More detailed analysis isleft for future work.The following information for cases undertaken by theDOJ are reported: number of cases, choice of civil orcriminal remedies, alleged violations, corporateofficials prosecuted, won-loss record, civil andcriminal sanctions imposed, and length of theproceedings. The principal source of data is theCCH Trade Regulation Reporter, commonly referred toas the CCH Bluebook which contains briefsummaries of all DOJ antitrust cases in order of theirfiling.     

Variations in antitrust enforcement activity

The purpose of this study is two-fold:

1. To describe the temporal pattern of general antitrust activity, often in a multivariate regression framework, over the years that Richard A. Posner observed (1890–1969) as well as for the subsequent years (1970–1982). We focus not on supplying of data or accounting for the number and types of cases als Posner, but to advance and test hypotheses about the causes and consequences of enforcement patterns.
2. To compare the relative temporal antitrust activity of the individual enforcement groups of DOJ, FTC, and private party plaintiffs (PPP) as measured by the number of cases filed.

     

企业集团引发的反垄断难题

本文从企业集团的界定、性质和域外管辖权三个角度提出了其所引发的反垄断难题。本文的主要观点是企业集团作为一种企业间组织。兼有“企业性”与“市场性”二重属性：企业集团的“二重性”是导致企业集团垄断行为隐蔽性和复杂性的根本原因；处理企业集团的反垄断问题需要准确判断企业集团行为属性。本文通过案例研究．分析了美国和欧盟处理企业集团反垄断难题时的一些典型做法：提出了处理企业集团反垄断难题的基本原则。     

European Antitrust Policy 1957–2004: An Analysis of Commission Decisions

This paper provides a survey of  European antitrust law enforcement since its foundation in the Treaty of Rome of 1957 up to and including 2004. We present a complete overview and statistical analysis of all 538 formal Commission decisions under Articles 81, 82, and 86 of the European Community Treaty. We report a range of summary statistics concerning report route, investigation duration, length of the decision, decision type, imposed fines, number of parties, sector classification, nationality, and Commissioner and Director General responsible. The statistics are linked to changes in legislation and administrative implementation, thereby providing an historical overview that summarizes the Commission’s work in the area of antitrust. One or more appeals were filed with respect to 161 of the 538 decisions. We estimate the determinants of the size of the imposed fine and probability of appeal when an infringement has been found.     

The FTC in the 1980s

This paper reviews the antitrust activities of Federal Trade Commission during the 1980s with special emphasis on the role of economics and economists. We contrast the FTC during the 1980s to its record in the 1970s and conclude that the agency was more active during the 1980s than is popularly believed. Perhaps more significant than changes in the level of enforcement activity was the agency's move to a more economics-oriented approach to antitrust enforcement and an increased role for Commission economists. The paper also comments on what FTC economists learned about American industry during the 1980s.     

The Effect of EU Antitrust Investigations and Fines on a Firm's Valuation

EU antitrust investigations involve a sequence of events which affect the investigated firm's market value. We model these relationships and estimate their impact on firms' share prices. On average, a surprise inspection reduces a firm's share price by 2.89%, an infringement decision reduces it by 3.57%. The Court judgments do not have a statistically significant effect. Overall, we find that the total effect of the antitrust action ranges from ?3.03% to ?4.55% of a firm's market value. Fines account for no more than 8.9% of this loss, and we conjecture that most of the loss is due to the cessation of illegal activities.     

Effects of antitrust prosecution on retail fuel prices

In February 2015, Spain’s Competition Authority imposed € 32.4 million in fines on five of the country’s largest oil operators as sanctions for price collusion. This paper examines the effect of that antitrust action on retail fuel prices. Our analysis uses a novel data set with detailed information on more than 8000 gas stations throughout Spain. Prices were collected every day from 18 August 2014 to 15 June 2015 (almost 2 million price observations). First we estimate a reduced-form fuel price equation that accounts for wholesale costs and brand affiliation. Then we use a model of gas stations and time fixed effects while adopting a difference-in-differences approach to assessing the fines’ effect on retail fuel prices. Our results indicate that, after publication of the fine, sanctioned firms raise prices slightly, and the additional revenues far exceeded the amount of the fine. We also find substantial heterogeneity, depending on the size of the fine, in the magnitude of this price response. Hence the fine’s burden might well have been borne mainly by consumers, whose welfare was thereby reduced. Our study should be of interest to antitrust authorities as we show that sanctions may not be effective enough in deter price fixing practices, especially when sanctions are weak and the profits from colluding are sufficiently high.     

The cyclical behavior of the Department of Justice’s antitrust enforcement activity

We study the cyclical behavior of antitrust enforcement as measured by the number of cases initiated by the US Department of Justice. The key result is that antitrust case activity is countercyclical. This finding is robust across alternate indicators of economic activity which include stock prices, corporate profits and business cycles, and across different types of cases. The finding of countercyclical case activity does not appear to lend support to interest-group theories that predict greater regulatory protection towards producers during economic contractions. One interpretation of our result would be that antitrust violations tend to increase during economic downturns, leading to an increase in the number of cases initiated, the broad implication being that the Antitrust Division primarily acts as an antitrust law enforcement agency. Our results show that politics, as measured by the party of the President and the Republican versus Democrat composition of the House and Senate, does not have a clear impact on case activity. Finally, the number of cases initiated are significantly affected by the extent of funding.     

Still Seeking Common Ground: A Response to Keyes

This response affirms that the author alone is responsible for what he “built on Keyes” and that Dr. Lucile Keyes bears no responsibility whatever for his conclusions. It reiterates the author's view that the history of antitrust shows that, in actual operation, the major purpose of the policy has always been the promotion of decentralization of ownership and control in the large-firm sector of the economy and not consumer protection. It is urged that no productive exchange of ideas between friends and critics of antitrust can take place until this fact is recognized. It is suggested that the search for common ground might begin by confining federal surveillance of mergers solely to a set of the largest firms; and that none should be allowed that did not promise a clear, non-negligible gain in efficiency.     

Comment on “Merger Policy in the United States”

This paper comments briefly on a merger policy article by Dennis Mueller. It concurs with Mueller's judgment that X-efficiency consequences are of crucial relevance in developing a sound antitrust policy toward mergers. It agrees also that firms proposing mergers overstepping structural guidelines should be permitted an efficiencies defense, but it stresses the difficulties of making ex ante efficiency predictions.     

The effectiveness of leniency programs when firms choose the degree of collusion

An antitrust authority grants leniency pre- and post-investigation. It chooses the probability of an investigation. Firms pick the degree of collusion: The more they collude, the higher are profits, but so is the probability of detection. Firms thus trade-off higher profits against higher expected fines. If firms are sufficiently patient, leniency is ineffective; it may even increase collusion. Increasing the probability of an investigation at low levels does not increase deterrence. Increasing the probability of an investigation at high levels reduces collusion, yet never completely. With bare pre-investigation leniency, deterrence is better than without leniency. If firms are sufficiently impatient, granting leniency pre- and post- is better than merely pre-investigation.     

Restraints of trade by durable good producers

Whether they face competition or not, durable good producers may have an incentive to impose vertical restraints on their customers in order to protect quasi-rents in the aftermarkets for maintenance and repair. In this paper, we show that these vertical restraints have little to do with the usual antitrust concerns regarding tying arrangements. Nonetheless, imposing such restraints involves antitrust risks. We examine these risks and the associated antitrust policy questions in light of the Supreme Court's recent Kodak decision. We also offer some suggestions for the appropriate antitrust policy.     

Antitrust Versus Regulatory Merger Review: The Case of Electricity

This paper focuses on the implications of multi-agency review of electricity mergers. It highlights fundamental differences between regulatory and antitrust merger enforcement procedures–ranging from standards of review to data collection, economic analysis, and remedies. Such disparities potentially introduce costly and potentially conflicting redundancy into the merger review process. Illustrative examples are drawn from a number of cases, including apparent inconsistencies across applicant-filed analyses in FERC merger cases. Absent the delegation of competition analysis to the antitrust agencies, the paper makes the case for harmonizing review across regulators and antitrust enforcers.     

“High-Tech” Antitrust: Incoherent,Misguided, Obsolete,or None of the Above? Comments on Crandall-Jackson and Wright

That prominent antitrust cases have been in the “high-tech” arena is not surprising, since high-tech industries are often susceptible to the scale economies that lead to highly concentrated or monopoly markets. Crandall and Jackson’s observations on the IBM case are on point. Regarding AT&T, the salient observation is that recent changes in legal doctrine may make it impossible to bring antitrust cases in regulated industries. The problem with the Microsoft case was not that it was right or wrong, but that it was fundamentally incoherent. Wright’s critique of the Federal Trade Commission’s case against Intel is problematic because buyers in exclusion cases tend to be better off, not victims as they would be under collusion or anticompetitive mergers. As these observations apply more generally to cases in sectors that are not associated with high-tech, I offer a few thoughts on some antitrust issues that are particular to high-tech sectors, specifically how the prospect of innovation could affect market definition in merger cases and, more broadly, whether dynamic efficiencies reduce the need for antitrust enforcement.     

Judicial approaches to economic analysis in Australia

Although Australia has had State and Federal antitrust laws for most of the twentieth century, its antitrust jurisprudence has only developed significantly since the enactment of theTrade PracticesAct 1974. Judges have had to come to grips with economic concepts not readily amenable to syllogistic reasoning and traditional fact finding processes. There has been increasing sophistication in judicial reasoning in the area of competition law. However restrictions placed by the rules of evidence upon the role of expert economists have attracted criticism. A new rule of court enables such testimony to be received by way of argument or submission rather than as evidence. This reflects the evaluative and normative nature of many of the judgments required under competition laws. It also provides an opportunity for a more fruitful and constructive interaction between economists and the judiciary in the application of such laws.     

Conglomerate mergers and subsequent industry effects

The focus of most studies of conglomerate mergers has been on the effects on companies involved. Of more direct relevance to antitrust policy is the question of industry effects of this type of merger. This article looks at eleven cases of “large firm/leading firm” conglomerate mergers completed between 1958 and 1970 and examines census data to see if structure or performance of the acquired “leading firm's” market was altered due to the merger. The results suggest that industry structure is not significantly affected, but that there may be adverse performance effects when the acquired firm is a leader in an unconcentrated market with substantial entry barriers.     

Policy Implications of the Effects of Concentration and Multimarket Contact in China’s Airline Market

Unlike many other mergers in developed countries, which might have been assessed and their effects estimated by antitrust authorities before being granted antitrust immunity, the airline mergers that swept China’s airline industry in 2002 occurred with no antitrust challenge. These mergers provide the opportunity to study important market power issues in China’s airline markets. Given that increased concentration and multimarket contact are the main legacies of an airline merger, the effects of mergers on these variables can raise the potential for the exercise of market power. However, an examination of the period 2002–2004 during which the Chinese airline mergers occurred shows that the resulting increased concentration and enhanced multimarket contact did not have important consequences for airfares in Chinese city-pair markets. The presence of Hainan Airlines appears to have played an important role in suppressing the airfares charged by China Eastern and China Southern.     

Efficiency and competition: The reagan administration's legacy in merger policy

The full effects of the latest merger wave will not be evident for a number of years. Further, many forces other than the Reagan administration's permissive policy contributed to the surge in asset redeployment that characterized the 1980s. Nevertheless, the rationale for this policy should be evaluated as promptly as possible, since antitrust remains the nation's primary policy instrument for dealing with untoward effects of merger. Both empirical evidence and underlying theory contradict beliefs in the efficiency-enhancing character of most mergers and of the market for control. Several emerging and potential harmful effects are noted.     

The Tenacity of Antitrust Mythology: Dissenting from Mueller

This comment registers the author's reservations about Professor D.C. Mueller's proposals for revising federal merger policy and about the arguments that he advances in support of them. The comment especially questions the validity of the practice of using concentration data as the basis for inferring the presence or absence of monopoly power. It is argued that the analytical foundation for this practice is non-existent and that the purely statistical foundation is weak. The author finds persuasive Mueller's argument that, in recent decades, the merger activity of large firms has done little or nothing to increase the efficiency of the American economy. He believes that, right or wrong, what drives antitrust is fear of corporate size and power, not fear of textbook monopoly. Therefore, he believes consideration should be given to Mueller's proposal that the ambitious merger projects of large firms should not be allowed to go forward unless they promise some gain in efficiency.