The NCAA and the Rule of Reason

This brief essay considers the use of antitrust’s rule of reason in assessing challenges to rule-making by the NCAA. In particular, it looks at the O’Bannon case, which involved challenges to NCAA rules that limit the compensation of student athletes under the NCAA rubric that protects the “amateur” status of collegiate athletes. Within that rubric, the Ninth Circuit got the right answer. That outcome leads to a broader question, however: Should the NCAA’s long held goal, frequently supported by the courts, of preserving athletic amateurism be jettisoned? Given the dual role that colleges play, that is a complex question, which raises issues that are not only commercial but also educational. More important for the purpose at hand, is whether jettisoning amateurism in NCAA athletics is a suitable task for an antitrust tribunal. This paper argues that antitrust law is not an appropriate vehicle for addressing that issue. This does not mean that antitrust has no role to play in policing athlete compensation in NCAA schools. But it does suggest that that role be limited to addressing restraints on trade that occur within the rubric of amateur status—at least until such time as a more competent body decides whether amateurism in collegiate athletics is worth preserving.     

Antitrust in the Reagan administration: A report from the Belly of the beast

This paper is a report on selected aspects of antitrust policy in the Reagan administration. It was written while the author was Director of the Bureau of Economics at the Federal Trade Commission. The topics covered include: merger guidelines, the general drift of antitrust policy, deregulatory initiatives, consumer protection policy, and the stronger emphasis on economic analysis in the conduct of antitrust policy. The conclusions drawn are not very sanguine in a normative sense. perhaps our solace lies in the positive study of why the antitrust bureaucracies behave as they do.     

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.     

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.     

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.     

Is Competition Such a Good Thing? Static Efficiency versus Dynamic Efficiency

Review of Industrial Organization - This paper addresses the rationale for antitrust legislation. It is a striking fact that the legitimacy of antitrust law has been taken for granted inthe United...     

“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.     

Guess who came to dinner

This paper highlights the trends in antitrust enforcement for 1963–84. It is based upon an update by the author's of Posner's study and follows his methodology, format, and operational definitions. The specific data examined include number of antitrust cases instituted, the duration of cases, DOJ and FTC won-loss records, nature of cases, fines and imprisonment and violations alleged. Since 1890, the number of multiple cases instituted by the DOJ resulting from the investigation of a single conspiracy has increased. Consolidating cases to reflect this pattern shows the apparent increase in DOJ cases represent fewer conspiracies of more limited nature that are being prosecuted under the Reagan administration. It is an intense cultivation of a well-known terrain rather than exploration of new frontiers in antitrust. The Antitrust Penalties and Procedures Act of 1974 has increased the size of fines and the use of jail sentences. Structural relief is less frequent.     

Mergers — What the “Grimm” data tell us

The aggregate level of U.S. merger activity may be influenced by expectations concerning future economic growth (as proxied by stock prices), current economic conditions, and/or interest rates. This paper applies regression analysis to the W. T. Grimm annual merger data from 1963–1986 to determine which of these determinants are significant. It also examines whether the government's antitrust stance influences merger activity. The results indicate that current economic conditions are a significant determinant, while interest rates and the government's antitrust stance appear to have no effect on mergers. The result concerning stock prices was inconclusive and will require more analysis.The author would like to thank an anonymous referee for many helpful comments. As always, the author accepts sole responsibility for any errors or omissions.     

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。     

The Australian merger guidelines: A comparison with the U.S. merger guidelines

Modern Australian antitrust had not begun when the first U.S. merger guidelines appeared in 1968. Even now, twenty five years later, no similarly detailed, formal administrative guidelines have been developed in Australia. This paper reviews the way in which the AustralianTrade Practices Act 1974 handles mergers and market definition, and considers how the Courts and the Trade Practices Commission, Australia's sole antitrust enforcement agency, have handled market definition and evaluated mergers. The key role played by the Trade Practices Tribunal, a quasi-judicial body, in influencing the Australian approach to mergers and market definition is highlighted. Contrasts are made with the 1992 American guidelines, and reasons for the different approaches are suggested.     

Network effects and merger analysis: instant messaging and the AOL–Time Warner case

The AOL–Time Warner merger, announced in January 2000, was and still is the largest merger ever consummated. The merger plan was submitted to the FTC for antitrust review and to the FCC for license transfer review. The FTC approved the merger with conditions relating to open access. The FCC approved the merger subject to a condition (among others) that mandated interoperability for future (but not present) generations of AOL's popular instant messaging (IM) service, based on the potential leveraging of merger assets together with current IM network effects into market power in next-generation IM services. This condition was controversial and represents a new departure in antitrust analysis for industries imbued with network effects. This paper analyzes AOL's IM service and the ability to leverage merger assets into future market power in the context of the FCC condition; counter-arguments are considered and larger lessons for “new economy” antitrust are drawn from this experience and analysis.     

邮政产业属性界定及其政策含义

本文认为,邮政产业的信函传递网、实物配送网、邮政汇兑网不存在显著的纵向关联;长途信函传递网具有一定的规模经济与较弱的范围经济性,而实物配送网与邮政汇兑网则不具有进入与退出的壁垒,邮政产业不具有自然垄断形成的条件。这一理论的实践含义是邮政产业的重组改革不宜简单采用电信重组的以拆分为主要形式的反托拉斯政策,而应对邮政实行三网分离的分类管制政策。     

The Determinants of State-Level Antitrust Activity

While there has been a considerable literature exploring the determinants of antitrust enforcement in the United States, these studies have been based either on aggregate federal enforcement data over time (exploring cyclical influences) or cross-industry studies, usually for a single year or aggregated over several years. What has never been investigated is the pattern of state-level antitrust litigation. This is somewhat surprising, as this has been a major activity of many state attorneys general. In this paper, we explain state antitrust activity across states, examining a number of the economic and political determinants that have been proposed in the literature.     

美国现行反垄断法对软件产业的适用性探析--以搭售和掠夺性定价为例

本文对软件产业的搭售与掠夺性定价行为进行了法律和经济分析。在美国现行的反垄断法体系中，这是属于典型的滥用市场势力的两种行为。但在软件产业却不能凭借传统标准简单地把这两种行为归结为垄断行为，而应从产业本身的特点和竞争环境出发谨慎对待。如一味运用美国现行的反垄断法惩罚软件产业正当的竞争行为，只会从更大程度上抑制竞争，损害消费者福利。在网络经济条件下，反垄断法应该顺应经济和技术的     

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.     

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.     

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.     

Strategic and deterrent pricing responses to antitrust investigations

This paper examines the issue of the effects of antitrust on pricing through two empirical studies. The first analyzes time series of prices in five industries involved in antitrust cases to determine whether the various stages of the antitrust process influenced pricing behavior. Some evidence of a ‘deterrent’ effect is found, with real prices lower than their pre-investigation level following the conclusion of the case; a major part of the pricing reaction occurs prior to the filing of formal charges. The second study provides additional evidence of the existence of such a ‘strategic’ reaction to the onset of investigation through an examination of prices in 23 industries investigated but not charged with price fixing.