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How Epic v. Apple Operationalizes Ohio v. Amex

Scholarship Abstract The Supreme Court’s landmark decision in Ohio v. American Express (“Amex”) remains central to the enforcement of antitrust laws involving digital markets. Specifically, the . . .


The Supreme Court’s landmark decision in Ohio v. American Express (“Amex”) remains central to the enforcement of antitrust laws involving digital markets. Specifically, the decision established a framework to assess business conduct involving transactional, multisided platforms from both an economic and legal perspective. At its crux, the Court in Amex integrated both the relevant market and competitive effects analysis across the two distinct groups who interact on the Amex platform, that is, cardholders and merchants. This unified, integrated approach has been controversial, however. The primary debate is whether the Court’s ruling places an undue burden on plaintiffs under the rule of reason paradigm to meet its burden of production to establish harm to competition. Enter Epic v. Apple (“Epic”): a case involving the legality of various Apple policies governing its iOS App Store, which, like Amex, is a transactional, multisided platform. While both the district court and the Ninth Circuit largely ruled in favor of Apple over Epic, these decisions are of broader interest for their fidelity to Amex. A careful review of the decisions reveals that the Epic courts operationalized Amex in a practical, sensible way. The courts did not engage in extensive balancing across developers and users as some critics of Amex contended would be required. Ultimately, the courts in Epic (a) considered evidence of effects across both groups on the platform and (b) gave equal weight to both the procompetitive and anticompetitive effects evidence, which, this Article contends, are the essential elements of the Amex precedent. Relatedly, the Epic decisions illustrate that the burden of production on plaintiffs in multisided platform cases is not higher than in cases involving regular, single-sided markets. Additionally, both parties, whether litigating single-sided or multi-sided markets, are fully incentivized to bring evidence to bear on all aspects of the case. Finally, this Article details how the integrated Amex approach deftly avoids potential issues involving the out-of-market effects doctrine in antitrust, which limits what type of effects courts can consider in assessing conduct.

Read at SSRN.

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Antitrust & Consumer Protection

Whose Failure Is the Failed Amazon/iRobot Merger?

TOTM The European Commission told Amazon in November 2023 of its preliminary view that the company’s proposed acquisition of iRobot restricted competition in the market for . . .

The European Commission told Amazon in November 2023 of its preliminary view that the company’s proposed acquisition of iRobot restricted competition in the market for robot vacuum cleaners (RVCs) and could hamper rival RVC suppliers’ ability to compete effectively. The deal, the Commission asserted, would give Amazon incentive to foreclose iRobot’s competitors by engaging in several anticompetitive strategies, including delisting rival RVCs from its marketplace, reducing their visibility, limiting access to certain widget or attractive product labels (“Amazon’s Choice,” “Works with Alexa”), and/or raising rivals’ sales and advertising costs. 

Recently, and in anticipation of a negative clearance decision from the Commission, Amazon and iRobot jointly announced they had terminated their acquisition agreement. 

Read the full piece here.

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Antitrust & Consumer Protection

How the FTC’s Amazon Case Gerrymanders Relevant Markets and Obscures Competitive Processes

TOTM As Greg Werden has noted, the process of defining the relevant market in an antitrust case doesn’t just finger which part of the economy is allegedly . . .

As Greg Werden has noted, the process of defining the relevant market in an antitrust case doesn’t just finger which part of the economy is allegedly affected by the challenged conduct, but it also “identifies the competitive process alleged to be harmed.” Unsurprisingly, plaintiffs in such proceedings (most commonly, antitrust enforcers) often seek to set exceedingly narrow parameters for relevant markets in order to bolster their case. In the extreme, these artificially constrained definitions sketch what can only be called “gerrymandered” markets—obscuring rather than illuminating the competitive processes at issue.

This unfortunate tendency is exemplified in the Federal Trade Commission’s (FTC) recent complaint against Amazon, which describes two relevant markets in which anticompetitive harm has allegedly occurred: (1) the “online superstore market” and (2) the “online marketplace services market.” Because both markets are exceedingly narrow, they grossly inflate Amazon’s apparent market share and minimize the true extent of competition. Moreover, by lumping together wildly different products and wildly different sellers into single “cluster markets,” the FTC misapprehends the nature of competition relating to the challenged conduct.

Read the full piece here.

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Antitrust & Consumer Protection

Gerrymandered Market Definitions in FTC v Amazon

ICLE Issue Brief Introduction Market definition is a critical component of any antitrust case. Not only does it narrow consideration to a limited range of relevant products or . . .


Market definition is a critical component of any antitrust case. Not only does it narrow consideration to a limited range of relevant products or services but, perhaps more importantly, it specifies a domain of competition at issue in an antitrust case—that is, the nature of the competition between certain firms that might (or might not) be harmed by the conduct of the defendant. As Greg Werden has characterized it:

Alleging the relevant market in an antitrust case does not merely identify the portion of the economy most directly affected by the challenged conduct; it identifies the competitive process alleged to be harmed.[1]

Unsurprisingly, plaintiffs—not least, antitrust agencies—are often tempted to define artificially narrow markets in order to reinforce their cases (sometimes, downright ridiculously so[2]). The consequence is not merely to artificially inflate the market significance of the firm under scrutiny, although it does do that; it is also to misapprehend and misdescribe the true nature of competition relevant to the challenged conduct.

This unfortunate trend—allegations of harm to artificially constrained and gerrymandered markets—is exemplified in the Federal Trade Commission’s (FTC) recent proceedings against Amazon.

The FTC’s complaint against Amazon describes two relevant markets in which anticompetitive harm has allegedly occurred: (1) the “online superstore market” and (2) the “online marketplace services market.”[3]

Unfortunately, both markets are excessively narrow, thereby grossly inflating Amazon’s apparent market share and minimizing the true extent of competition. Moreover, the FTC’s approach to market definition here—lumping together wildly different products and wildly different sellers into single “cluster markets”—grossly misapprehends the nature of competition relating to the challenged conduct.

First, the FTC’s complaint limits the online-superstore market to online stores only, and further limits it to stores that have an “extensive breadth and depth”[4] of products. The latter means online stores that carry virtually all categories of products (“such as sporting goods, kitchen goods, apparel, and consumer electronics”[5]) and that also have an extensive variety of brands within each category (such as Nike, Under Armor, Adidas, etc.).[6] In practice, this definition excludes leading brands’ private channels (such as Nike’s online store),[7] as well as online stores that focus on a particular category of goods (such as Wayfair’s focus on furniture).[8] It also excludes the brick-and-mortar stores that still account for the vast majority of retail transactions.[9] Firms with significant online and brick-and-mortar sales might count, but only their online sales would be considered part of the market.

Second, the online-marketplace-services market is limited to online platforms that provide access to a “significant base of shoppers”;[10] a search function to identify products; a means for the seller to set prices and present product information; and a method to display customer reviews. This implies that current Amazon sellers can’t reach consumers through mechanisms that don’t incorporate all these specific functions, even though consumers regularly use multiple services and third-party sites that accomplish the same thing (e.g., Google Shopping, Shopify, Instagram, etc.)[11] Moreover, it implies that these myriad alternative channels do not constrain Amazon’s pricing of its services.

Documents identified in the complaint do appear to demonstrate that Amazon pays substantial attention to competition from online superstores and online marketplaces. But cherry-picked business documents do not define economically relevant markets.[12] At trial, Amazon will doubtless produce a host of ordinary-course documents that show significant competition from a wide array of competitors on both sides of its retail platform. The scope of competition that the FTC sketches—based on a few documents from among tens of thousands—is a public-relations and litigation tactic, but not remotely the full story.

Third, the FTC’s casual use of “cluster markets,” which lump together distinct types of products and different types of sellers into single markets, may severely undermine the commission’s case. It’s one thing to group, say, all recorded music into a single market (despite the lack of substitutability between, say, death metal and choral Christmas music), but it’s another thing entirely to group batteries and bedroom furniture into a single “market,” just because Amazon happens to facilitate sales of both.

Fourth and finally, it is notable that the relevant markets alleged in the FTC’s complaint draw a distinct line between the seller and buyer sides of Amazon’s platform. Implicit in this characterization is the rejection of cross-market effects as a justification for Amazon’s business conduct. Some of the FTC’s specific concerns—e.g., the alleged obligation imposed on sellers to use Amazon’s fulfillment services to market their products under Amazon’s Prime label—have virtually opposite implications for the seller and buyer sides of the market. Arbitrarily cordoning off such conduct to one market or the other based on where it purportedly causes harm (and thus ignoring where it creates benefit) mangles the two-sided, platform nature of Amazon’s business and would almost certainly lead to its erroneous over-condemnation.[13]

Ultimately, what will determine the scope of the relevant markets will be economic analysis based on empirical data. But based on the FTC’s complaint, public data, and common sense (the best we have to go on, for now), it seems implausible that the FTC’s conception of distinct, and distinctly narrow, relevant markets will comport with reality.

An artificially narrow and gerrymandered market definition is a double-edged sword. If the court accepts it, it’s much easier to show market power. But the odder the construction, the more likely it is to strain the court’s credulity. The FTC has the burden of proving its market definition, as well as competitive harm. By defining these markets so narrowly, the FTC has ensured it will face an uphill battle before the courts.

I.           The Alleged ‘Online Superstore’ Market

A first weakness of the FTC’s suit pertains to the alleged “online superstore market.” This market definition excludes the following: (1) brick-and-mortar retailers, (2) brick-and-mortar sales by firms that do considerable business online and in-person, and (3) online retailers that don’t meet the definition of a “superstore.”[14] The FTC’s market definition also excludes sales of perishable grocery items.[15] The agency argues that consumers don’t consider these other types of retailers to be substitutes for online superstores.[16] This seems dubious, and the FTC’s complaint does little to dispel the doubt.

To see how the market definition tilts the balance, consider the FTC’s allegation that Amazon dominates the online-superstore market with approximately 82% market share.[17] That is, Amazon is reported to have approximately 82% market share (in gross merchandise value, or “GMV”), provided we exclude perishables, and consider the market to comprise solely U.S. online sales by Amazon, Walmart, Target, and eBay, but no other vendors. Note, for example, that Walmart, Target, and Costco all have both online and in-person sales at brick-and-mortar stores, but Costco’s online sales are excluded from the online-superstore category, presumably due to their relatively limited scale and scope. But counting both online and in-person sales, it turns out that twelve-month trailing revenue at Costco is reported to be more than double that of Target, which is included in the FTC’s online-superstore category.[18] Amazon’s share of overall online retail is substantial, but it’s much smaller (37.6%) than its share of a purported market that comprises Amazon, Walmart online, Target online, eBay, and nobody else.[19] Indeed, if one includes total retail sales, then Walmart leads Amazon, not vice versa.[20] And while e-commerce may be substantial and growing, it still represents only about 15% of U.S. retail.[21]

There are countless examples where consumers cross-shop online and offline—televisions and other electronics, clothing, and sporting goods (among many others) spring to mind. Indeed, most consumers would surely be hard-pressed to identify any product they’ve purchased from Amazon that they have not, at some point, also purchased from an offline or non-superstore retailer.

Defining a market with reference to a single retailer’s particular product offering—that is, by a single channel of distribution—is unlikely to “identif[y] the competitive process alleged to be harmed.”[22] In fact, for consumers, it doesn’t identify a product at all, and ends up excluding a host of competing sellers that offer economic substitutes for the products consumers actually buy.[23] By failing to do so, the FTC’s purported market definition is woefully deficient in describing the scope of competition: “Including economic substitutes ensures that the relevant product market encompasses ‘the group or groups of sellers or producers who have actual or potential ability to deprive each other of significant levels of business.’”[24]

A.        Brick-and-Mortar Competes with Amazon Because Shopping Is Not the Same Thing as Consuming

While it may be that some consumers do not consider offline vendors or non-superstores to be substitutes, it does not follow that such rivals don’t impose competitive constraints on online superstores.

If a hypothetical monopolist raises prices, some consumers—perhaps many, perhaps even most—may switch to a brick-and-mortar retailer. That may be enough to constrain the monopolist’s pricing. How many might switch, and the extent to which that constrains pricing, are empirical questions, but there is no question that some consumers might switch: retail multi-homing is common.

And the constraints on switching are far weaker than the FTC claims. The complaint observes that 1) brick-and-mortar retailers are less convenient because it takes time to go to a physical store, 2) stores are not open for shopping at all hours, and 3) consumers may have to visit multiple stores to buy the necessary items.[25]

Online shopping is almost certainly quicker than offline—at least, once one is sitting in front of a computer with Internet access. But the complaint seems to conflate shopping with consuming.

Even with Amazon’s impressive fulfillment and delivery network, if a consumer needs a product that very moment or even that day, a brick-and-mortar retailer may be preferable. The same may be true in circumstances in which a consumer wants to see a product in person, try on clothing, consult an experienced salesperson, etc. And while some consumers may enjoy shopping, they may or may not prefer the experience of online shopping.

More generally and more to the point, consumers purchase goods to use and consume them. Online stores may be “always open,” but shipping and delivery are not instantaneous. That one can shop online at all hours may be convenient, but it may do nothing to hasten the ability to consume the items purchased.

Meanwhile, brick-and-mortar retailers typically have websites that show their inventory and pricing online. Consumers can, accordingly, comparison shop across e-commerce and brick-and-mortar vendors, even when the brick-and-mortar retailers have closed for the evening.

B.         ‘Depth and Breadth’ Isn’t Solely Available from Superstores, and Consumers Buy Products, Not Store Types

Consumers within the “online superstore market” may be able to prevent a hypothetical monopolist from raising prices by switching to other online channels that don’t qualify as a “superstore,” as defined by the FTC.

For example, if a consumer is looking for sporting goods, she can shop at an online superstore, or she can shop at Dick’s online, REI online, or Bass Pro online, all of which have an exceptional “depth and breadth” of items.[26] Alternatively, if the consumer is shopping for a Columbia Sportswear jacket, in addition to the sporting-goods retailers listed, she can also shop on Columbia’s website[27] or at any other online-clothing retailer that carries Columbia jackets (e.g., Macy’s or Nordstrom[28]).

The complaint anticipates and responds to this concern by saying that non-superstore online retailers (as well as brick-and-mortar retailers) lack the depth and breadth of products sold by superstores.[29] But so what? For many consumers, Amazon purchases are made one (or a few) item(s) at a time. When consumers need a bolt cutter, they log in and order it, and when they need a pair of sneakers the next day, they log in and order that. They don’t wait to buy the bolt cutter until they are ready to buy sneakers (i.e., people don’t typically log in to Amazon with a shopping list and purchase multiple items at the same time, except perhaps for perishable groceries, which are excluded from the proposed market). Whether the consumer is buying one item or three or five, a purchase that bundles products across the broad scope of the online-superstore market is not at all the norm.

Indeed, part of the purported advantage of online shopping—when it’s an advantage—is that consumers don’t have to bundle purchases together to minimize the transaction costs of physically visiting a brick-and-mortar retailer. Meanwhile, another part of the advantage of online shopping is the ease of comparison shopping: consumers don’t even have to close an Amazon window on their computers to check alternatives, prices, and availability elsewhere. All of this undermines the claim that one-stop shopping is a defining characteristic of the alleged market.

Data are hard to come by (and the data will ultimately demonstrate whether and to what extent the complaint portrays reality), but public sources indicate that the average number of units per transaction is less than three (admittedly, this is worldwide, and for all online e-commerce, not just Amazon).[30] This does not suggest that shoppers demand extensive “depth and breadth” each time they shop online.

Meanwhile, important lacunae in Amazon’s offerings belie the notion that it offers a true “depth and breadth” that transcends competitive constraints from other retailers. The fact that Nike, on the seller side, doesn’t view Amazon as an essential marketplace[31]—in other words, it believes it has plenty of alternative, competing channels of distribution—has important consequences for the FTC’s market definition on the consumer side. It’s difficult to conceive of a retailer offering anything approaching a comprehensive “depth and breadth” of footwear without offering any Nike shoes. For consumers who buy shoes, Amazon is hardly a unique outlet, and finding even a minimally suitable range of options requires shopping elsewhere, either in combination with Amazon or in its stead.

But the implications are even greater. Because the FTC has grouped sales of all products together—not just footwear or even apparel—and defined the relevant market around that broad clustering of disparate products, can it really be said that Amazon is a “one-stop-shop” at all if it doesn’t offer Nike shoes?

The example may seem trivial, but it aptly illustrates the inherent error in defining the product market essentially by the offerings of a single entity. Necessarily, those offerings will be unique and affected by a host of seller/buyer interactions specific to that company. And in many cases, those specific inclusions and exclusions may be significantly more important than the simple number of SKUs on offer (which is essentially the basis for including Walmart and Target online, but excluding, say, Costco online from the FTC’s “superstores” market).

Further, despite its repeated reliance on “depth and breadth,” the complaint ignores e-commerce aggregators, which allow consumers to search products and pricing across an incredible variety of retailers. Google Shopping is, of course, the most notable example—and, for such a prominent example, curiously absent from the complaint. Through Google Shopping—among other sites—consumers can see extensive results in one place for almost any product, including across all categories and across many brands (the breadth-and-depth factors relied upon by the complaint). Indeed, while many product searches today begin at Amazon, a huge amount of online shopping takes place via Google.[32]

Moreover, online shoppers regularly use third-party sites to research (shop) for products, and these, too, aggregate information from across a huge range of sources. As Search Engine Land reports:

Reviews and ratings can make or break a sale more than any other factor, including product price, free shipping, free returns and exchanges, and more.

Overall, 77% of respondents said they specifically seek out websites with reviews—and this number was even higher for Gen Z (87%) and millennials (81%).[33]

While Amazon is where consumers most often read reviews (94%), other retail websites (91%), search engines (70%), brand websites (68%), and independent review sites (40%) are all significant.[34] And yet, despite their manifest importance in the competitive process of online retail, the FTC’s complaint entirely dismisses the significance of shopping aggregators and non-Amazon, product-review sources.

II.         The Alleged ‘Online Marketplace Services’ Market

The complaint is similarly flawed when it assesses the scope of competition from the point of view of sellers.

The complaint endeavors to distinguish and exclude from the market for online marketplace services all other methods by which a seller can market and sell its products to end consumers. For instance, the complaint distinguishes online marketplaces from online retailers where the seller functions as a vendor (i.e., it transfers title to the retailer) and those where sellers provide their own storefronts or sell directly through social media and other aggregators using “software-as-a-service” (“SaaS”) to market products (e.g., Shopify and BigCommerce).[35]

The complaint alleges that neither operating as a vendor nor utilizing SaaS is “reasonably interchangeable”[36] with online marketplace services—the key language from the Brown Shoe case.[37] But merely saying so does not make it true. Service markets can display differentiated competition, just as product markets do. Superficial—and even significant—differences among services do not, in themselves, establish that they are not competitors.

First, where sellers operate as vendors by transferring title to another party to sell the product (either online or at a brick-and-mortar retailer), they could very well constrain the costs that a hypothetical monopolist imposes on sellers. For example, if a hypothetical monopolist increased prices or decreased quality for selling a product, why would Nike not transfer its products away from the monopolist and toward Foot Locker, Macy’s, or any other number of retailers where Nike operates as a vendor? Or why not rely on Nike’s own website, selling directly to the consumer? In fact, Nike has already done this. In 2019, Nike stopped selling products to Amazon because it was dissatisfied with Amazon’s efforts to limit counterfeit products.[38] Instead, Nike opted to sell directly to its consumers or through its other retailers (both online and offline, of course).

The same can be said for sellers without well-known brands or those who opt to use SaaS to sell their products. Certainly, there are differences between SaaS and online-marketplace services, but that doesn’t mean that a seller can’t or won’t use SaaS in the face of increased prices or decreased quality from an online marketplace. Notably, Shopify claims to be the third-largest online retailer in the United States, with 820,000 merchants selling through the platform.[39] It’s remarkable that it is completely absent from the FTC’s market definition.

Also remarkable is that he FTC’s complaint alleges that SaaS providers are not in the relevant market because:

SaaS providers, unlike online marketplace service providers, do not provide access to an established U.S. customer base. Rather, merchants that use SaaS providers to establish direct-to-consumer online stores must invest in marketing and promotion to attract U.S. shoppers to their online stores.[40]

This is remarkable because a significant claim in the FTC’s complaint is that Amazon has “degraded” its service by introducing sponsored search results, “litter[ing] its storefront with pay-to-play advertisements,” and allegedly requiring (some would say enabling…) sellers to pay for marketing and promotion.[41] It’s unclear why the need to invest in marketing and promotion to attract shoppers to one’s online storefront is qualitatively different than the need to invest in marketing and promotion to attract shoppers to one’s products on Amazon’s platform.

Indeed, the notion that large platforms like Amazon simply “provide access” to consumers glosses over the immense work that such access entails. Amazon and similar platforms (including, of course, SaaS providers) make significant investment in designing and operating user interfaces, matching algorithms, marketing channels, and innumerable other functionalities to convert undifferentiated masses of consumers and sellers into a functional retail experience. Amazon’s value for sellers in providing access to customers must be balanced by the reality that, in doing so, large “superstores” like Amazon also necessarily put a large quantity of disparate sellers in the same unified space.

For obvious reasons, sellers don’t necessarily value selling their products in the same location as other sellers. They do, of course, want access to consumers, but the “marketplace” or “superstore” aspects of Amazon simultaneously impedes that access by congesting it with other sellers and products (and consumers seeking other products). A specialized outlet may, in fact, offer the optimal sales environment: all consumers seeking the seller’s category of goods (but somewhat fewer consumers), and fewer sellers impeding discovery and access (though more selling the same category of goods). A furniture seller may have dozens of online outlets (and, of course, many offline outlets, catalog sales, decorator sales, etc.), and there is little or no reason to think that, by virtue of also offering batteries, clothes, and bolt cutters, Amazon offers anything truly unique to a furniture seller that it can’t get by selling through another distribution channel with a different business model.

The complaint relies heavily on this notion that online-marketplace services deliver a large customer base that cannot be matched by selling as a vendor or using SaaS. (It is entirely unclear if the FTC considers single-category online marketplaces like Wayfair to be in the “online marketplace services” market, a topic to which I return below in the “cluster markets” discussion; it is clear the FTC doesn’t consider Wayfair part of the “online superstores market.”).[42] Again, in this context, the complaint ignores e-commerce aggregators and how they affect sellers’ ability to access customers. Through Google Shopping, consumers can see extensive results for almost any product, including across all categories and across many brands. And Google aggregates product listings without charging the seller.[43] Thus, through Google Shopping, a seller can access a large consumer base that may constrain a hypothetical monopolist in the online-marketplace-services market.

And Google Shopping is not alone. Selling through social media has boomed. According to one source, Instagram is an online-shopping juggernaut.[44] Among other things:

  • 130 million people engage with shoppable Instagram posts monthly;
  • 72% of users say they made a purchase based on something they saw on Instagram;
  • 70% of Instagram users open the app in order to shop; and
  • 81% of Instagram users research new products and services on the platform.[45]

Sellers on Instagram can use Meta’s “Checkout on Instagram”[46] service to process orders directly on Instagram, as well as logistics services like Shopify or ShipBob to manage their supply chains and fulfill sales,[47] replicating the core functionality of a vertically integrated storefront like Amazon.

The bottom line is that Amazon is not remotely the only (or, in many cases, even the best) place for sellers to find, market, and sell to consumers. Its superficial differences from other distribution channels are just that: superficial.

III.       Cluster Markets

One of the most important problems with the FTC’s alleged relevant markets is that they treat all products and all sellers the same. They effectively assume that consumers shop for bolt cutters the same way they shop for furniture, and that Adidas sells shoes the same way that drop-shippers sell toilet paper.

Courts have recognized that such an approach—using “cluster markets” to assess a group of disparate products or services in a single market—can be appropriate for the sake of “administrative[ ]convenience.” As the 6th U.S. Circuit Court of Appeals noted in Promedica Health v. FTC, “[t]his theory holds, in essence, that there is no need to perform separate antitrust analyses for separate product markets when competitive conditions are similar for each.”[48]

A second basis for clustering is the “transactional-complements” theory, relabeled by the 6th Circuit as the “‘package-deal’ theory.”[49] This approach clusters products together for relevant market analysis when “‘most customers would be willing to pay monopoly prices for the convenience’ of receiving certain products as a package.”[50]

For example, it may be appropriate to refer to a “market for recorded music” even though consumers of music by Taylor Swift probably exert little or no competitive pressure on the price or demand for recordings of, say, Cannibal Corpse. Thus, in the EU’s 2012 clearance (with conditions) of the Universal Music Group/EMI Music merger, the Commission determined that, although classical music may present somewhat different competitive dynamics, there was no basis for defining separate markets by artist or even by genre.[51]

Hospital mergers provide another classic example.[52] Labor and delivery services are not a substitute for open-heart surgery, but the FTC nonetheless frequently defines a market as “inpatient general acute care services” or something similar because of the similar relationship of each to a hospital’s organization and administration, as well as the fact that payers typical demand such services (and hospitals typically provide such services) in combination (even though patients, of course, do not consume them together).

The Supreme Court put its imprimatur on the notion of a cluster market in Philadelphia National Bank, accepting the lower court’s determination that “commercial banking” constituted a relevant market because of the distinctiveness, cost advantages, or consumer preferences of the constituent products.[53]

A.        Assessing Cluster Markets

Widespread use (and the occasional fairly serious analysis) of cluster markets notwithstanding, it is worth noting that the economic logic of such markets is, at best, poorly established.

In the UMG/EMI case, for example, the Commission rested on the following factors in concluding that markets should not be separated out by genre (let alone by artist):

The market investigation showed that, by and large, a segmentation of the recorded music market based on genre is not appropriate. First, the borders between genres are often blurred and artists and songs can fit within several genres at the same time. Second, several customers also underline that placing of a song or an album into a specific genre is entirely subjective. Third, a vast majority of customers indicated that they purchase and sell all genres of music.[54]

These facts may all be true, but they do little to permit the inference drawn. Indeed, the first two factors arguably refer only to administrability, not economic reality, and the third is woefully incomplete (e.g., it says little about a potential monopolist’s ability to raise prices if price increases can be passed on to end-consumers in some genres but not others). While the frailties of the market determination may not ultimately have mattered in that case (after all, the parties got their merger, and the Commission presumably brought the strongest case it could), such casual conclusions may well prove problematic elsewhere and do little to advance the logic of the cluster-markets concept.

Similar defects plague the Supreme Court’s endorsement of the theory in PNB. The Court suggests some reasons why, even in its own telling, “some commercial banking products or services”[55] may be insulated from competition, but that still leaves open the possibility that others aren’t, and that the relevant insulating characteristics could be eroded by simple product repositioning, different pricing strategies, or changes in reputation and brand allegiance.

In fact, the defendants in PNB argued before the district court that:

commercial banking in its entirety is not a product line. Rather, they submit it is a business which has two major subdivisions—the acceptance of deposits in which the bank is the debtor, and the making of loans in which the bank is the creditor. Both of these major divisions are further divided by distinct types of deposits and loans. As to many of these functions, there are different types of customers, different market areas, and, most importantly, different types of competitors and competition. With the possible exception of demand deposits, there is an identical or effective substitute for each one of the services which a commercial bank offers.[56]

The court, however, rejected these arguments with little more than a wave of the hand (a conclusion that was then simply accepted by the Supreme Court):

It seems quite apparent that both plaintiff’s and defendants’ positions have some merit. However, it is not the intention of this Court to subdivide a commercial bank into certain selected services and functions. An approach such as this, carried to the logical extreme, would result in many additional so-called lines of commerce. It is the conglomeration of all the various services and functions that sets the commercial bank off from other financial institutions. Each item is an integral part of the whole, almost every one of which is dependent upon and would not exist but for the other. The Court can perceive no useful purpose here in going any further than designating commercial banking a separate and distinct line of commerce within the meaning of the statute. It is undoubtedly true that some services of a commercial bank overlap, to some degree, with those of certain other institutions. Nevertheless, the Court feels quite confident in holding that commercial banking, viewed collectively, has sufficient peculiar characteristics which negate reasonable interchangeability.[57]

None of this response goes to the question of how users of commercial-banking services consume them. Instead, it essentially takes the superficial marketing distinction as economically dispositive, despite the acknowledgment that economic substitutes for the constituent products exist. It is, of course, possible that, in PNB, the error was not outcome determinative; perhaps none of the overlap between commercial banks and other providers of commercial lending is significant enough to change the analysis. But this is not a rigorous defense of the notion.

In a few cases, a more rigorous econometric analysis has been used to establish the viability of cluster markets. Consider, for example, the FTC’s successful challenge of the proposed Penn State Hershey Medical Center/Pinnacle Health System merger.[58] At issue there were the likely effects of a merger for certain services provided by general acute care (GAC) hospitals—that is, a range or “cluster” of services sold to commercial health plans in a defined geographic area covering roughly four counties in central Pennsylvania. Two small community hospitals offered some of the same acute care services, and various clinics and group practices provided some of the primary and secondary care services in the cluster.

At the same time, there was evidence that commercial health plans needed to negotiate for coverage over a range of GAC services that other providers could not offer, and that the merging parties competed on price in such negotiations with commercial health plans. Copious econometric evidence—analysis of price data and patient-draw data—substantiated the FTC’s market definition, bolstered by an amicus brief filed by more than three dozen experts in antitrust, competition, and health-care economics.[59]

All of this supported the FTC’s argument that the provision of GAC services constituted a single “cluster market”—and the 3rd U.S. Circuit Court of Appeals agreed, overturning a flawed geographic-market definition initially adopted by the district court.[60] That is, the agency didn’t merely waive its hands at an impression of ways that certain hospital services were similar to each other; rather, it provided detailed economic analysis of the price competition at issue for a specific range of GAC hospital services.

Notably, in that case, there were specific, identifiable consumers—commercial health plans—that were negotiating prices for a diverse “cluster” of GAC services. An individual patient will not, we hope, need to shop for oncology, cardio-thoracic surgery, a hip replacement, and ob-gyn services at the same time. But a health plan typically considers all of those and more. The same dynamic is not, of course, applicable in the Amazon case.

Perhaps the best example of the rigorous defense of cluster markets came in the first Staples/Office Depot merger matter, where ordinary-course documents played a role in the FTC’s review, but were by no means core to the staff’s analysis.[61] The FTC Bureau of Economics applied considerable econometric analysis of price data to establish that office superstore chains constrained each other’s pricing in a way that other vendors of office supplies did not.[62] That analysis of price effects (as evidence of likely merger effects and as evidence on behalf of the FTC’s market definition) is not apparent in the district court’s opinion enjoining the transaction.[63] But it figured heavily in the FTC’s presentation of the case and, presumably, in the commission’s internal decision to bring the case.

Two things are particularly notable about the cluster markets employed in Staples/Office Depot. First is that the exercise was undertaken at all. That is, it was assumed to be a crucial question whether other types of retailers (those with fewer products or catalog-only sales) constrained the pricing power of office-supply “superstores.” Second, the groupings of products analyzed were based on detailed analyses of pricing and price sensitivity over identified products, not superficial, subjective impressions of the market. The same was likewise the case in the Penn State Hershey hospital case mentioned above, and in other hospital-merger cases.

These types of evidence and analyses are simply not in evidence in the FTC’s case against Amazon—certainly not as they’ve presented it thus far.

B.         The Problem of Cluster Markets in the FTC’s Amazon Complaint

The FTC’s approach to market definition in Amazon appears in sharp contrast with prior cases involving what were, arguably, valid cluster markets and somewhat narrow market definitions.

Although the Amazon case is only at the complaint stage, of course, no factors or analysis similar to those adduced in the hospital and office-superstore cases discussed above are present in the FTC’s complaint against Amazon. Indeed, the complaint offers no evidence that the FTC considered the possibility that different products and different sellers would need to be considered separately (the FTC certainly saw no need to preemptively defend its clustering in the complaint). Instead—and consistent with the apparent assumption that Amazon and its particular characteristics are virtually unique—the complaint appears to assume that if Amazon offers a grouping of products, or if Amazon offers services to different types of sellers, this constitutes an economically rigorous “relevant market.” (Spoiler alert: It does not.)

Such an assumption would seem to need some defense. Certainly, a customer buying a bolt cutter will not consider buying a sneaker to be a reasonable alternative; it is clearly not on the basis of demand substitution that the FTC lumps these products together.[64] Instead, similar competitive conditions across products are implicit in the FTC’s alleged markets. But are competitive conditions sufficiently similar across products sold on Amazon to justify clustering them?

1.           Buyer-side clustering

Conditions vary considerably across the broad swath of products sold on Amazon. For some products sold at online superstores, brick-and-mortar retailers are a much closer substitute. Conceivably, consumers may prefer buying shoes at a brick-and-mortar retailer so that they can try them on, making physical retail a closer substitute for sneakers than for, say, a toilet brush, where very few consumers will demand to try the brush for balance before buying it. And surely consumers may be more willing to buy well-established brands (Nike, Gucci, etc.) directly from the brand’s website than a lesser-known brand sold at an online superstore.

Furniture, for example, is bought and sold in vastly different ways than, say, batteries (by consumers with different preferences for service and timing, by retailers with different relationships with manufacturers, through different channels of distribution, etc.). Whatever the merits to consumers of bundling purchases together from an “online superstore,” it is likely the case that they far less often bundle furniture purchases with other purchases than they do batteries. And surely consumers far more often seek to buy furniture offline or after testing it out in person than they do batteries. Vertically integrated furniture stores like IKEA have certainly done much to “commoditize” the production and sale of furniture in recent decades, but the market remains populated mostly by independent furniture showrooms, traditional manufacturers, and catalog and decorator sales. The same cannot be said for batteries, of course.

It also seems unlikely that consumers purchase Amazon’s proffered products in bundles meaningfully distinct from those they purchase elsewhere. People shopping for kitchen pantry items may well bundle their purchases of these items together. But in the vast majority of cases, they can get that same bundle from a grocery store, even though the grocery store carries many fewer SKUs overall. There is no analog to commercial health plans negotiating prices for a particular “cluster” of hospital services in Amazon’s case—and even if there were, it is certain that any number of other stores can match the actual clusters in which people regularly buy products from Amazon.

2.           Seller-side clustering

The problem of false clustering is even more acute on the seller side in the alleged “online marketplace services” market. Sellers on Amazon comprise at least two distinct types. On the one hand are brands and manufacturers that have a limited range of their own products to offer. These sellers are not resellers of others’ goods, but product creators or brands that use Amazon to sell “direct to consumer” the same sort of products they might otherwise have to sell through a retail intermediary. Within this group there is a further distinction between large, known brands and entrepreneurs selling a unique product (or maybe a few unique products) of their own creation out of their proverbial garage.[65]

On the other hand are retailers—resellers—that offer a wide range of products, none of which they manufacture themselves, but which they may purchase in bulk from manufacturers or offer through drop-shipping. The seller is an intermediary between the actual maker or seller of the product and the customer (in this case, marketing and reaching customers through another intermediary: Amazon). Here, again, there is a further distinction between intermediaries that are virtually invisible or interchangeable pass-throughs of others’ goods and those that attempt to add some value by establishing their own private-label brands or by acting as a trusted intermediary that offers a curated set of products.

Each of these types of sellers has a different demand for the various services bundled by Amazon, and a different set of available alternatives to Amazon. They often compete in different markets, have different relationships with manufacturers, and have differing sets of internal capacities necessitating the purchase of different services (or the purchase of different services in different relative quantities), and entailing a different ability to evaluate their need for different services and differing degrees of reliance on Amazon to complement their capacities. Moreover, the competitive ramifications of constraining each’s ability to sell on Amazon (or increasing the price to do so) is considerably different.

This last point is most obvious when considering the effect on drop-shippers of a possible increase in price on Amazon. What would be the competitive effects if a particular drop-shipper of, say, toilet paper were somehow precluded from Amazon, or harmed by using it? In that case, the seller is largely irrelevant (or worse—simply an additional source of markup). The relevant question is not whether a particular seller can profitably sell the product: “The antitrust laws… were enacted for ‘the protection of competition not competitors.’”[66] Rather, the relevant question is whether the manufacturer of the product can access consumers, and whether consumers can access competing sellers. In the case of toilet paper (or virtually anything else drop-shipped), the answer is manifestly yes. Drop shippers of Charmin could probably disappear completely from Amazon, and consumers would still be able to buy it at competitive prices from Amazon, among a host of competing options, and Proctor & Gamble would have no trouble reaching consumers.

3.           Implications

The implication of all this is that it seems highly dubious that furniture and batteries (to take just one example) face similar enough competitive conditions across online superstores for them to be grouped together in a single “cluster market.” While there may be superficial similarities in the website or technology connecting buyers and sellers, the underlying economics of production, distribution, and consumption seem to vary enormously.

The complaint offers no evidence to support the assertion of similar competitive conditions; no analysis of cross-elasticities of demand or supply across product categories; and no empirical evidence that a price increase for, say, furniture, could be offset by increased sales of batteries. Nor does the complaint consider more granular markets—like furniture, or sporting goods, or books—that would better capture these critical differences.

Indeed, it’s quite possible that narrower markets would demonstrate that Amazon faces real competition in some areas but not others. Grouping disparate products together risks obscuring situations where market power—and thus potentially anticompetitive effects from Amazon’s conduct—might exist in some product spaces but not others. The failure to properly define the relevant market for antitrust analysis doesn’t inherently imply a particular outcome; it just means no outcome can properly be determined.

The FTC offers no defense for clustering beyond the mere fact that Amazon offers these varied products on its platform. Yet selling through a common intermediary hardly establishes that the underlying competition is sufficiently similar to warrant single-market treatment, let alone that common conduct toward sellers affects all products and sellers equally. If the FTC cannot empirically defend treating distinct products as competitively interchangeable, as transactional complements, or as having the same competitive conditions, its case may collapse under the weight of its own market gerrymandering.

IV.      Out-of-Market Effects

This leaves a final question about the two markets defined in the complaint: can and should they really be considered separately, when conduct in each market has significant effects in the other? My colleagues and I intend to address this question more broadly and in more detail in the future (and, indeed, have already begun to do so[67]). For now, I will share a few tantalizing thoughts about this issue.

If Amazon’s practices vis-à-vis sellers cause the sellers to lower their prices, improve the quality of the products available through the marketplace, or otherwise lower costs and whittle down the seller’s profits, then consumers would benefit. Similarly, if Amazon’s practices with sellers improve the quality of consumers’ experience on its marketplace, then consumers would also benefit. The question is whether gain on one side should offset any harms on the other.

The FTC contends that the markets should be considered separately, despite acknowledging (and even trying to bolster its case with) the reality that the two sides of Amazon’s platform have important effects on each other:

Feedback loops between the two relevant markets further demonstrate the critical importance of scale and network effects in these markets. While the markets for online superstores and online marketplace services are distinct, an online superstore may operate an online marketplace and offer associated online marketplace services to sellers. As a result, the relationship and feedback loops between the two relevant markets can create powerful barriers to entry in both markets.[68]

Despite this, the FTC will likely contend that out-of-market efficiencies are not cognizable. That is, benefits to consumers in the online-superstore market that flow from harm in the online-marketplace-services market do not apply (i.e., harm is harm, and it doesn’t matter if it benefits someone else). This approach, however, presents some obvious problems.

If platforms undertake conduct to maximize the overall value of the platform (and not merely the benefits accruing to any one side in particular), it is inevitable that some decisions will impose constraints on some users in order to maximize the value for everyone. Indeed, the FTC attempts to disparage “Amazon’s flywheel” as a mechanism for exploiting its dominance.[69] For Amazon, meanwhile, that “flywheel” encompasses the importance of ensuring value on one side of the platform in order to increase its value to the other side:

A critical mass of customers is key to powering what Amazon calls its “flywheel.” By providing sellers access to significant shopper traffic, Amazon is able to attract more sellers onto its platform. Those sellers’ selection and variety of products, in turn, attract additional shoppers.[70]

But at times, maximizing the value of the platform may entail imposing constraints on sellers or buyers. Unfortunately, some of these practices are the precise ones the FTC complains of here. Limiting access to the “Buy Box” by sellers of products that are available for less elsewhere, for example, ensures that consumers pay less and builds Amazon’s reputation for reliability;[71] bundling Prime services may mean some consumers pay for services they don’t use in order to get fast shipping, but it also attracts more Prime customers, enabling Amazon to raise revenue sufficient to guarantee same-, one-, or two-day shipping and providing a larger customer base for the benefit of its sellers.[72]

The bifurcated market approach also conflicts with the Supreme Court’s holding in Ohio v. American Express.[73] In Amex, the Court held that there must be net harm to both sides of a two-sided market (like Amazon) before a violation of the Sherman Act may be found. And even the decision’s critics recognize the need to look at effects on both sides of the market (whether they are treated as a single market, as in Amex, or not).[74]

The complaint itself seems to provide enough fodder to suggest that Amazon’s marketplace should be treated as a two-sided market, which the Supreme Court defined as a “platform [that] offers different products or services to two different groups who both depend on the platform to intermediate them.”[75] The complaint is replete with allegations of a “feedback loop” between the two markets, and it does appear that the consumers depend on the sellers and vice versa.

The economic literature shows that two-sided markets exhibit interconnectedness between their sides. It would thus be improper to consider effects on only one side in isolation. Yet that is what artificially narrow market definitions facilitate—letting plaintiffs make out a prima facie case of harm in one discrete area. This selective focus then gets upended once defendants demonstrate countervailing efficiencies outside that narrow market.

But why define markets so narrowly if weighing interrelated effects is ultimately essential? Doing so seems certain to heighten false-positive risks. Moreover, cabining market definitions and then trying to “take account” of interdependencies is analytically incoherent. It makes little sense to start with an approach prone to missing the forest for the trees, only to try correcting the distorted lens part way into the analysis. If interconnectedness means single-market treatment is appropriate, the market definition should match from the outset.

But I think the FTC is aiming not for the most accurate approach, but for the one that (it believes) simply permits it to ignore procompetitive effects in other markets, despite its repeated acknowledgment of the “feedback loops” between them.[76] Certainly, FTC Chair Lina Khan is well aware of the possible role that Amex could play, and has even stated previously that she believes Amex does apply to Amazon.[77] Instead, the agency is hoping (incorrectly, I believe) that the Court’s decision in Amex won’t apply, and that its decisions in PNB and Topco will ensure that each market be considered separately and without allowance for “out-of-market” effects occurring between them.[78] Such an approach would make it much easier for the FTC to win its case, but would do nothing to ensure an accurate result.

The district court in Amex, in fact, took a similar approach (finding in favor of the plaintiffs), holding that the case involved “two separate yet complementary product markets.”[79] Citing Topco and PNB, the district court asserted that, “[a]s a general matter . . ., a restraint that causes anticompetitive harm in one market may not be justified by greater competition in a different market.”[80] Similarly, Justice Stephen Breyer, also citing Topco, concluded in his Amex dissent that a burden-shifting analysis wouldn’t incorporate consideration of both sides of the market: “A Sherman Act §1 defendant can rarely, if ever, show that a procompetitive benefit in the market for one product offsets an anticompetitive harm in the market for another.”[81]

Some scholars assert that PNB and Topco apply to preclude offsetting, “out-of-market” efficiencies in monopolization cases, but it is by no means clear that the PNB limitation applies in Sherman Act cases. As a matter of precedent, PNB applies only to mergers evaluated under the Clayton Act. And the claim that the Court in Topco has extended the holding in PNB to the Sherman Act rests (at best) on dicta.[82]

It is true that the Court limited Amex to what it called “transaction” markets.[83] But courts are almost certainly going to have to deal with interrelated effects that occur in less-simultaneous markets, and they will almost certainly have to do so either by extending Amex’s single-market approach, or by accepting out-of-market efficiencies in one market as relevant to the antitrust analysis of an ostensibly distinct market on the other side of the platform. The FTC’s Amazon complaint presents precisely this dynamic.

Legal doctrine aside, ignoring benefits in one interconnected market while focusing on harms in another will lead to costly overdeterrence of procompetitive conduct.

Indeed, the FTC’s complaint identifies not just ambiguous conduct (conduct that may constrain one side but benefit the other side and the platform overall), but it points to the very act of providing benefits to consumers as a means of harming competition.[84]

What if Amazon makes it harder for new entrants on the “marketplace” side to enter profitably, because it offers benefits on the consumer side that most competitors can’t match? The FTC would have you believe that is a harm, full stop, because of the seller-side effect. But that would also effectively mean that simply increasing efficiency and lowering prices would amount to harm, because it would also make it harder for new entrants to match Amazon. How can conduct that provides a clear benefit to consumers constitute an antitrust harm?[85]

In essence, the FTC maintains this illogical position by cordoning off the two sides of Amazon’s platforms into separate markets and then asserting that benefits in one cannot justify “harms” in the other, despite recognizing the close interrelatedness between the two markets:

Sellers who buy marketplace services from Amazon provide much of the product selection that helps Amazon attract and keep its shoppers. As more shoppers turn to Amazon for its product selection, more sellers use its platform to gain access to its ever-expanding consumer base, which attracts more shoppers, and so on. . . . The interplay between Amazon’s shoppers and sellers increases barriers to new entry and expansion in both relevant markets and limits existing rivals’ ability to compete. In this way, scale builds on itself, and is cumulative and self-reinforcing.[86]

This is artificial and nonsensical. What Amazon does is maximize the value of the platform to the benefit of all users, on net. That some of those benefits accrue at certain times to only one set of users cannot be taken to undermine the value of Amazon’s overall, long-term platform-improving conduct.

Finally, it is worth noting that, even where nominal market distinctions across platform users have been argued by plaintiffs and upheld by courts, analysis of anticompetitive effects has generally turned to out-of-market effects.

Consider the famous case of Aspen Skiing Co. v. Aspen Highlands Skiing Corp. In that case, analyzing the competitive effect of the defendant’s conduct regarding access by a competitor to an “all Aspen” ski pass required looking at effects in the output market for downhill skiing, as well as the input market for mountain access needed to provide those tickets.[87] Indeed, as the Court noted, “[t]he question whether Ski Co.’s conduct may properly be characterized as exclusionary cannot be answered by simply considering its effect on Highlands. In addition, it is relevant to consider its impact on consumers and whether it has impaired competition in an unnecessarily restrictive way.”[88] If Aspen Skiing were evaluated as the FTC seeks in this case, there would be two distinct markets at issue, and harm could be proven by assessing the effect on the input market alone, regardless of the effect on consumers.

Indeed, especially where vertically related markets are involved (which is, of course, how the two sides of Amazon’s platform are related), courts have recognized that weighing effects on competition requires a cross-market perspective across both upstream and downstream segments.


The FTC’s proposed market definitions in its case against Amazon exhibit several critical flaws that undermine the complaint. The alleged “online superstore” and “online marketplace services” markets are excessively narrow, excluding manifest competitors and alternatives. The FTC improperly groups together distinctly different products and sellers into questionable “cluster markets” without empirical evidence to support treating them as economically integrated. And the complaint arbitrarily cordons the two markets off from each other, despite acknowledging their interconnectedness, likely in a deliberate effort to avoid weighing out-of-market efficiencies and procompetitive effects flowing between them.

Ultimately, the burden lies with the FTC to defend these narrow market definitions as economically sound. But based on the limited information available thus far, the proposed markets appear to be gerrymandered to suit the FTC’s case, rather than reflective of actual competitive realities.

Whether deliberately tactical or not, the problems with the FTC’s market definition invite skepticism regarding the overall merits of the agency’s case. If the relevant markets prove indefensible upon fuller examination of the facts, the theory of harm in the case may well collapse. At a minimum, the FTC faces an uphill battle if its case indeed rests more on artful pleading than rigorous economics.


[1] Gregory J. Werden, Why (Ever) Define Markets? An Answer to Professor Kaplow, 78 Antitrust L.J. 729, 741 (2013) (emphasis added).

[2] See, e.g., Josh Sisco, The FTC Puts Your Lunch on Its Plate, Politico (Nov. 21, 2023), https://www.politico.com/news/2023/11/21/feds-probe-10b-deal-for-subway-sandwich-chain-00128268.

[3] Complaint, F.T.C., et al. v. Amazon.com, Inc., Case No. 2:23-cv-01495-JHC (W.D. Wa., Nov. 2, 2023) at ¶¶ 119-208, available at https://www.ftc.gov/legal-library/browse/cases-proceedings/1910129-1910130-amazoncom-inc-amazon-ecommerce (“Amazon Complaint”).

[4] Id. at ¶ 124.

[5] Id.

[6] Id.

[7] Nike Store (last visited Dec. 6, 2023), https://www.nike.com.

[8] Wayfair (last visited Dec. 6, 2023), https://www.wayfair.com.

[9] E-Commerce Retail Sales as a Percent of Total Sales (ECOMPCTSA), FRED Economic Data (last updated Nov. 17, 2023), https://fred.stlouisfed.org/series/ECOMPCTSA.

[10] Amazon Complaint, supra note 3, at ¶ 185.

[11] See, e.g., How Google Shopping Works, Google (last visited Dec. 6, 2023), https://support.google.com/faqs/answer/2987537; Shopify Official Website, Shopify (last visited Dec. 6, 2023), https://www.shopify.com/; Instagram Shopping, Instagram (last visited Dec. 6, 2023), https://business.instagram.com/shopping.

[12] See Geoffrey A. Manne & E. Marcellus Williamson, Hot Docs vs. Cold Economics: The Use and Misuse of Business Documents in Antitrust Enforcement and Adjudication, 47 Ariz. L. Rev. 609 (2005).

[13] For a discussion of this problem in the context of mergers (but with relevance to market definition in Section 2 cases), see Daniel J. Gilman, Brian Albrecht and Geoffrey A. Manne, The Conundrum of Out-of-Market Effects in Merger Enforcement, Truth on the Market (Jan. 16, 2024), https://truthonthemarket.com/2024/01/16/the-conundrum-of-out-of-market-effects-in-merger-enforcement.

[14] See Amazon Complaint, supra note 3, at ¶ 117.

[15] See id. at ¶ 163.

[16] See id. at ¶ 123 (“Online superstores offer shoppers a unique set of features”).

[17] See id. at ¶ 171. (“Other commercially available data, including recently reported statistics from eMarketer Insider Intelligence, a widely cited industry market research firm, confirms Amazon’s sustained dominance across this same set of companies, with an estimated market share of more than 82% of GMV in 2022.”).

[18] See Matthew Johnston, 10 Biggest Retail Companies, Investopedia (last updated May 8, 2023), https://www.investopedia.com/articles/markets/122415/worlds-top-10-retailers-wmt-cost.asp.

[19] Stephanie Chevalier, Market Share of Leading Retail E-Commerce Companies in the United States in 2023, Statista (Nov. 6, 2023), https://www.statista.com/statistics/274255/market-share-of-the-leading-retailers-in-us-e-commerce.

[20] See Matthew Johnston, supra note 18.

[21] See E-Commerce Retail Sales as a Percent of Total Sales, supra note 9.

[22] Werden, supra note 1, at 741.

[23] See Geoffrey A. Manne, Premium Natural and Organic Bulls**t, Truth on the Market (Jun. 6, 2007), https://truthonthemarket.com/2007/06/06/premium-natural-and-organic-bullst (“[E]conomically relevant market definition turns on demand elasticity among consumers who are often free to purchase products from multiple distribution channels, [and] a myopic focus on a single channel of distribution to the exclusion of others is dangerous.”).

[24] Hicks v. PGA Tour, Inc., 897 F.3d 1109, 1120-21 (9th Cir. 2018) (citing Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038, 1045 (9th Cir. 2008)).

[25] See Amazon Complaint, supra note 3, at ¶¶ 128-33.

[26] Dick’s Sporting Goods (last visited Dec. 6, 2023), https://www.dickssportinggoods.com; REI Co-op Shop (last visited Dec. 6, 2023), https://www.rei.com; Bass Pro Shops (last visited Dec. 6, 2023), https://www.basspro.com/shop.

[27] Jackets, Columbia (last visited Dec. 10, 2023), https://www.columbia.com/c/outdoor-jackets-coats.

[28] See Columbia Coats & Jackets, Macy’s (last visited Dec. 10, 2023), https://www.macys.com/shop/womens-clothing/womens-coats/Brand/Columbia?id=269; Women’s Columbia Coats, Nordstrom (last visited Dec. 10, 2023), https://www.nordstrom.com/browse/women/clothing/coats-jackets?filterByBrand=columbia.

[29] See Amazon Complaint, supra note 3, at ¶¶ 148-59.

[30] See Daniela Coppola, Average Number of Products Bought Per Order Worldwide from January 2022 to December 2022, Statista (Feb. 1, 2023), https://www.statista.com/statistics/1363180/monthly-average-units-per-e-commerce-transaction.

[31] See Khadeeja Safdar, supra note 38.

[32] Google Product Discovery Statistics, Think with Google (last visited Dec. 6, 2023), https://www.thinkwithgoogle.com/marketing-strategies/search/google-product-discovery-statistics (“49% of shoppers surveyed say they use Google to discover or find a new item or product”). Also notable, “51% of shoppers surveyed say they use Google to research a purchase they plan to make online.” Product Research Statistics, Think with Google (last visited Dec. 6, 2023), https://www.thinkwithgoogle.com/marketing-strategies/search/product-research-search-statistics.

[33] See Danny Goodwin, 50% Of Product Searches Start on Amazon, Search Engine Land (May 16, 2023), https://searchengineland.com/50-of-product-searches-start-on-amazon-424451.

[34] Id.

[35] See Shopify (last visited Dec. 6, 2023), https://www.shopify.com; BigCommerce (last visited Dec. 6, 2023), https://www.bigcommerce.com.

[36] Amazon Complaint, supra note 3, at ¶ 198 (“SaaS providers’ services are not reasonably interchangeable with online marketplace services.”).

[37] See Brown Shoe Co., Inc. v. United States, 370 U.S. 294, 325 (1962) (“The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it.”).

[38] See, e.g., Khadeeja Safdar, Nike to Stop Selling Directly to Amazon, Wall Street J. (Nov. 13, 2019), https://www.wsj.com/articles/nike-to-stop-selling-directly-to-amazon-11573615633.

[39] See Tomas Kacevicius (@intred), Twitter (Jun. 19, 2019, 7:05 PM), https://x.com/intred/status/1141527349193842688?s=20 (“[M]ore than 820K merchants are currently using #Shopify, making it the 3rd largest online retailer in the US.”).

[40] Amazon Complaint, supra note 3, at ¶ 199 (emphasis added).

[41] Id. at ¶ 5.

[42] See infra Section III.

[43] Juozas Kaziukenas, Google Shopping Is Again an E-Commerce Aggregator, Marketplace Pulse (Apr. 28, 2020), https://www.marketplacepulse.com/articles/google-shopping-is-again-an-e-commerce-aggregator.

[44] See Mohammad. Y, Instagram Commerce Statistics and Shopping Trends in 2023, OnlineDasher (last updated Sep. 19, 2023), https://www.onlinedasher.com/instagram-shopping-statistics.

[45] Id.

[46] Checkout on Instagram, Instagram for Business (last visited Dec. 7, 2023), https://business.instagram.com/shopping/checkout.

[47] See Shopify Fulfillment Network, Shopify (last visited Dec. 6, 2023), https://www.shopify.com/fulfillment; Outsourced Fulfillment, ShipBob (last visited Dec. 7, 2023), https://www.shipbob.com/product/outsourced-fulfillment.

[48] Promedica Health Sys., Inc. v. Fed. Trade Comm’n, 749 F.3d 559, 565 (6th Cir. 2014).

[49] Id. at 567.

[50] Id. (quoting 2B Areeda, Antitrust Law, ¶ 565c at 408).

[51] See EU Commission, Universal Music Group / EMI Music, Case No. COMP/M.6458, Decision, 21 September 2012, ¶¶ 141-58.

[52] See, e.g., In the Matter of HCA Healthcare/Steward Health Care System, FTC Docket No. 9410 (Jun. 2, 2022), available at https://www.ftc.gov/legal-library/browse/cases-proceedings/2210003-hca-healthcaresteward-health-care-system-matter.

[53] U.S. v. Philadelphia Nat. Bank, 374 U.S. 321, 356 (1963) (“PNB”) (“We agree with the District Court that the cluster of products (various kinds of credit) and services (such as checking accounts and trust administration) denoted by the term ‘commercial banking,’ composes a distinct line of commerce.”).

[54] Universal Music Group / EMI Music, supra note 51, at ¶ 141.

[55] PNB, 374 U.S. at 356 (emphasis added).

[56] United States v. Philadelphia National Bank, 201 F. Supp. 348, 361 (E.D. Pa. 1962).

[57] Id. at 363.

[58] In the Matter of Penn State Hershey Medical Center and Pinnacle Health System, FTC Docket No. 9368 (Dec. 7, 2015), available at https://www.ftc.gov/system/files/documents/cases/151214hersheypinnaclecmpt.pdf.

[59] Consent Brief of Amici Curiae Economics Professors in Support of Plaintiffs/Appellants Urging Reversal, FTC v. Penn State Hershey Medical Center, et al., Case No. 16-2365 (3rd Cir., Jun. 8, 2016), available at https://www.hbs.edu/ris/Profile%20Files/Amicus%20Brief%20in%20re%20Hershey-Pinnacle%20Proposed%20Merger%206.2016_e38a4380-c58b-4bb4-aecd-26fc7431ecba.

[60] Fed. Trade Comm’n v. Penn State Hershey Med. Ctr., 838 F.3d 327 (3d Cir. 2016).

[61] Complaint, FTC v. Staples Inc. and Office Depot, Inc., Case No. 1:97CV00701 (D.D.C., Apr. 10, 1997), available at https://www.ftc.gov/legal-library/browse/cases-proceedings/9710008-staples-inc-office-depot-inc.

[62] See Orley Ashenfelter, David Ashmore, Jonathan B. Baker, Suzanne Gleason, & Daniel S. Hosken, Empirical Methods in Merger Analysis: Econometric Analysis of Pricing in FTC v. Staples, 13 Int’l J. Econ. of Bus. 265 (2006).

[63] F.T.C. v. Staples, Inc., 970 F. Supp. 1066 (D.D.C. 1997).

[64] And, for at least one court, this is the only basis on which a cluster market is appropriate. See Green Country Food v. Bottling Group, 371 F.3d 1275, 1284 (10th Cir. 2004) (“A cluster market exists only when the ‘cluster’ is itself an object of consumer demand.”) (citing Westman Comm’n Co. v. Hobart Int’l, Inc., 796 F.2d 1216, 1221 (10th Cir. 1986) (rejecting cluster market approach where cluster was not itself the object of consumer demand)).

[65] For example, successful Chinese food product startup Fly By Jing was started by one woman in 2018. She sells only her own products and does so not only on Amazon, but also on her own website and, among countless other places, Costco. See Fly By Jing Amazon Storefront, Amazon.com (last visited Dec. 8, 2023), https://www.amazon.com/stores/page/F2C02352-02C6-4804-81C4-DEA595C644DE; Fly By Jing (last visited Dec. 8, 2023), https://flybyjing.com/shop; Fly By Jing (@flybyjing), Instagram (Feb. 22, 2022), https://www.instagram.com/reel/CaSnvVzlkUW/ (“Sichuan Chili Crisp Now in Costco”).

[66] Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488 (1977) (quoting Brown Shoe, 370 U.S. at 320).

[67] See Gilman, Albrecht & Manne, supra note 13.

[68] Amazon Complaint, supra note 3, at ¶ 119.

[69] Id. at ¶ 9.

[70] Id. at ¶ 215.

[71] Id. at ¶ 269.

[72] Id. at ¶ 218.

[73] 138 S. Ct. 2274 (2018) (“Amex”).

[74] See, e.g., Michael Katz and Jonathan Sallet, Multisided Platforms and Antitrust Enforcement,127 Yale L.J. 2142 (2018). Katz and Sallet criticize the concept of treating both sides of a two-sided market in one relevant market: “Because users on different sides of a platform have different economic interests, it is inappropriate to view platform competition as being for a single product offered at a single (i.e., net, two-sided) price.” Id. at 2170. But they also contend that effects on both sides must be considered: “[In order] to reach sound conclusions about market power, competition, and consumer welfare, any significant linkages and feedback mechanisms among the different sides must be taken into account.” Id.

[75] Amex, 138 S. Ct. at 2280.

[76] See Amazon Complaint, supra note 3, at ¶¶ 119, 176, 179, 209, 215, & 217.

[77] Lina Khan, The Supreme Court Just Quietly Gutted Antitrust Law, Vox (Jul. 3, 2018), https://www.vox.com/the-big-idea/2018/7/3/17530320/antitrust-american-express-amazon-uber-tech-monopoly-monopsony (“On the surface, the Court’s language [in Amex] suggests that the special rule would apply to Amazon’s marketplace for third-party merchants.”).

[78] PNB, 374 U.S. 321; United States v. Topco Associates, Inc., 405 U.S. 596 (1972) (“Topco”).

[79] United States, et al. v. Am. Express Co., et al., 88 F. Supp. 3d 153, 171 (E.D.N.Y. 2015).

[80] Id., 88 F. Supp. 3d at 247 (citing Topco, 405 U.S. at 610; PNB, 374 U.S. at 370).

[81] Amex, 138 S. Ct. at 2303 (quoting Topco, 405 U.S. at 611).

[82] See Geoffrey A. Manne, In Defence of the Supreme Court’s ‘Single Market’ Definition in Ohio v American Express, 7 J. Antitrust Enf. 104, 115-17 (2019) (“The Court in Topco cited PNB in dictum, not for a doctrinal proposition relating to the operation of the rule of reason, but for a general, conceptual point about the asserted difficulty of courts adjudicating between conflicting economic rights. . . . Nowhere does the Court in Topco suggest that it is inappropriate within a rule-of-reason analysis to weigh out-of-market efficiencies against in-market effects.”).

[83] Ohio v. Am. Express Co., 138 S. Ct. at 2280 (“Thus, credit-card networks are a special type of two-sided platform known as a ‘transaction’ platform. The key feature of transaction platforms is that they cannot make a sale to one side of the platform without simultaneously making a sale to the other.”) (citations omitted).

[84] See, e.g., Amazon Complaint, supra note 3, at ¶ 222 (“Amazon’s restrictive all-or-nothing Prime strategy artificially heightens entry barriers because rivals and potential rivals cannot compete for shoppers . . . solely on the merits of their online superstores or marketplace services. Instead, they must enter multiple unrelated industries to attract Prime subscribers away from Amazon or incur substantially increased costs to convince Prime subscribers to sign up for a second shipping subscription or otherwise pay for shipping a second time. This substantial expense significantly constrains the number of firms who have any meaningful chance to compete against Amazon and raises the costs of any that even try. . . . Amazon’s restrictive strategy artificially heightens barriers to entry, such that an equally or even a more efficient or innovative rival would be unable to fully compete by offering a better online superstore or better online marketplace services.”).

[85] See Brian Albrecht, Is Amazon’s Scale a Harm?, Truth on the Market (Oct. 13, 2023), https://truthonthemarket.com/2023/10/13/is-amazons-scale-a-harm/.

[86] Amazon Complaint, supra note 3, at ¶¶ 214 & 216.

[87] In Aspen Skiing, the “jury found that the relevant product market was ‘[d]ownhill skiing at destination ski resorts,’” Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 596 n.20 (1985). The conduct at issue, however, occurred on the input side of the market.

[88] Id. at 605 (emphasis added).

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Antitrust & Consumer Protection

ICLE Response to the Australian Competition Taskforce’s Merger Reform Consultation

Regulatory Comments I. About the International Center for Law & Economics The International Center for Law & Economics (“ICLE”) is a nonprofit, non-partisan global research and policy . . .

I. About the International Center for Law & Economics

The International Center for Law & Economics (“ICLE”) is a nonprofit, non-partisan global research and policy center founded with the goal of building the intellectual foundations for sensible, economically grounded policy. ICLE promotes the use of law & economics methodologies to inform public-policy debates and has longstanding expertise in the evaluation of antitrust law and policy.

ICLE’s interest is to ensure that antitrust law remains grounded in clear rules, established precedent, a record of evidence, and sound economic analysis. Some of the proposals in the Competition Taskforce’s Reform Consultation (“Consultation”) threaten to erode such foundations by, among other things, shifting toward merger analysis that focuses on the number of competitors, rather than the impact on competition, as well as reversing the burden of proof; curtailing rights of defense; and adopting an unduly strict approach to mergers in particular sectors. Our overriding concern is that intellectually coherent antitrust policy must focus on safeguarding competition and the interests of consumers.

In its ongoing efforts to contribute to ensuring that antitrust law in general, and merger control in particular, remain tethered to sound principles of economics, law, and due process, ICLE has submitted responses to consultations and published papers, articles, and reports in a number of jurisdictions, including the European Union, the United States, Brazil, the Republic of Korea, the United Kingdom, and India. These and other publications are available on ICLE’s website.[1]

II. Summary of Key Points

We appreciate the opportunity to comment on the Competition Taskforce’s Consultation. Our comments below mirror the structure of the main body of the Consultation. Section by section, we suggest improvements to the Consultation’s approach, as well as citing background law and economics that we believe the Treasury should keep in mind as it considers whether to move forward with merger reform in Australia.

  • Question 6 — Australia should not skew its merger regime toward blocking mergers under conditions of uncertainty. Uncertainty is endemic in merger control. Since the vast majority of mergers are procompetitive—including mergers in what is commonly called the “digital sector”—an error-cost-analysis approach would suggest that false negatives are preferable to false positives. Concrete evidence of a likely substantial lessening of competition post-merger should continue to be the decisive factor in decisions to block a merger, not uncertainty about its effects.
  • Question 8 — While potential competition and so-called “killer acquisitions” are important theories for the Australian Competition and Consumer Commission (“ACCC”) to consider when engaging in merger review, neither suggest that the burden of proof needed to reject a merger should be changed, nor do they warrant an overhaul of the existing merger regime. Furthermore, given the paucity of evidence finding “killer acquisitions” in the real world, it is highly unlikely that any economic woes that Australia currently faces can be blamed on an epidemic of killer acquisitions or acquisitions of potential/nascent competitors. If the Treasury is going to adopt any rules to address these theories of harm, it should do so in a manner consistent with the error-cost framework (see reply to Question 6) and should not undercut the benefits and incentives that startup firms derive from the prospect of being acquired by a larger player.
  • Question 9 — Merger control should remain tethered to the analysis of competitive effects within the framework of the significant lessening of competition test (“SLC test”), rather than seeking to foster any particular market structure. Market structure is, at best, an imperfect proxy for competitive effects and, at worst, a deeply misleading one. As such, it should remain just one tool among many in merger analysis, rather than an end in itself.
  • Question 13 — In deciding whether to impose a mandatory-notification regime, Australia should be guided by error-cost considerations, and not merely seek to replicate international trends. While there are sound reasons to prefer a system of mandatory-merger notifications, the Treasury cannot ignore the costs of filing mergers or of reviewing them. It should be noted that some studies suggest that voluntary merger notification may achieve objectives similar to those achieved by compulsory systems at lower cost to the merging parties, as well as to the regulator. If the Treasury nonetheless decides to impose mandatory notification, it should seek to contain unnecessary costs by setting a reasonable turnover threshold, thereby filtering out transactions with little-to-no potential for anticompetitive harm.
  • Question 17 —Australian merger control should require that a decisionmaker be satisfied that a merger would likely and substantially lessen competition before blocking it, rather than effectively reversing the burden of proof by requiring that merging parties demonstrate that it would not. In a misguided attempt to shift the costs of erroneous decisions from the public to the merging parties, the ACCC’s proposal forgets that false positives also impose costs on the public, most notably in the form of foregone consumer benefits. In addition, since the vast majority of mergers are procompetitive, including mergers in the digital sector, there is no objective empirical basis for reversing the burden of proof along the proposed lines.
  • Question 18 — The SLC test should not be amended to include acquisitions that “entrench, materially increase or materially extend a position of substantial market power.” First, the Consultation seems to conflate instances of anticompetitive leveraging with cases where an incumbent in one market enters an adjacent one. The latter is a powerful source of competition and, as such, should not be curtailed. The former is already covered by the SLC test, which equips authorities with sufficient tools to curb the misuse of market power post-merger. Third, it is unclear what the term “materially” would mean in the proposed context, or what it would add to the SLC test. Australian merger control already interprets “substantial” lessening of competition to mean “material in a relative sense and meaningful.” Thus, the term “materially” risks injecting unnecessary uncertainty and indeterminacy into the system.
  • Question 19 — As follows from our response to Question 9, Section 50(3) should not be amended to yield an increased focus on changes to market structure as a result of a merger. It is also unclear what is gained from removing the factors in Section 50(3). More than a “modernization” (as the Consultation calls it), this appears to be a redundancy, as the listed factors already significantly overlap with those commonly used under the SLC test. To the extent that these factors place a “straitjacket” on courts (though in principle they are sufficiently broad and flexible), they could be removed, however, so long as merger analysis remained tethered to the SLC test and respects its overarching logic.
  • Question 20 — Non-competition public benefits should play a limited role in merger control. Competition authorities are, in principle, ill-suited to rank, weigh, and prioritize complex and incommensurable goals and values. The injection of public-benefits analysis into merger review magnifies the risk of discretionary and arbitrary decision making.

III. Consultation Responses

A.   Question 6

Is Australia’s merger regime ‘skewed towards clearance’? Would it be more appropriate for the framework to skew towards blocking mergers where there is sufficient uncertainty about competition impacts?

In order for a merger to be blocked in Australia, it must be demonstrated that the merger is likely to substantially lessen competition. In the context of Section 50, “likely” means a “real commercial likelihood.”[2] Furthermore, a “substantial” lessening of competition need not be “large or weighty… but one that is ‘real or of substance… and thereby meaningful and relevant to the competitive process.’”[3] This does not set an inordinately high bar for authorities to clear.

In a sense, however, the ACCC is right when it says that Australian merger control is “skewed towards clearance.”[4] This is because all merger regimes are “skewed” toward clearance. Even in jurisdictions that require mandatory notifications, only a fraction of mergers—typically, those above a certain turnover threshold—are examined by competition authorities. Only a small percentage of these transactions are subject to conditional approval, and an even smaller percentage still are blocked or abandoned.[5] This means that the vast majority of mergers are allowed to proceed as intended by the parties, and for good reason. As the ACCC itself and the Consultation note, most mergers do not raise competition concerns.[6]

But while partially accurate, this statement is only half true. Most mergers are, in fact, either benign or procompetitive. Indeed, mergers are often an effective way to reduce transaction costs and generate economies of scale in production,[7] which can enable companies to bolster innovation post-merger. According to Robert Kulick and Andrew Card, mergers are responsible for increasing research and development expenditure by as much as $13.5 billion annually.[8] And as Francine Lafontaine and Margaret Slade point out in the context of vertical mergers:

In spite of the lack of unified theory, over all a fairly clear empirical picture emerges. The data appear to be telling us that efficiency considerations overwhelm anticompetitive motives in most contexts. Furthermore, even when we limit attention to natural monopolies or tight oligopolies, the evidence of anticompetitive harm is not strong. [9]

While vertical mergers are generally thought to be less likely to harm competition, this does not cast horizontal mergers in a negative light. It is true that the effects of horizontal mergers are empirically less well-documented. But while there is some evidence that horizontal mergers can reduce consumer welfare, at least in the short run, the long-run effects appear to be strongly positive. Dario Focarelli and Fabio Panetta find:

…strong evidence that, although consolidation does generate adverse price changes, these are temporary. In the long run, efficiency gains dominate over the market power effect, leading to more favorable prices for consumers.[10]

Furthermore, and in line with the above, some studies have found that horizontal merger enforcement has even harmed consumers.[11]

It is therefore only natural that merger regimes should be “skewed” toward clearance. But this is no more a flaw of the system than is the presumption that cartels are harmful. Instead, it reflects the well-documented and empirically grounded insight that most mergers do not raise competition concerns and that there are myriad legitimate, procompetitive reasons for firms to merge.[12]

It also reflects the principle that, since errors are inevitable, merger control should prefer Type II over Type I errors. Indeed, legal decision making and enforcement under uncertainty are always difficult and always potentially costly.[13] Given the limits of knowledge, there is always a looming risk of error.[14] Where enforcers or judges are trying to ascertain the likely effects of a business practice, such as a merger, their forward-looking analysis will seek to infer anticompetitive conduct from limited information.[15] To mitigate risks, antitrust law, generally, and merger control, specifically, must rely on certain heuristics to reduce the direct and indirect costs of the error-cost framework,[16] whose objective is to ensure that regulatory rules, enforcement decisions, and judicial outcomes minimize the expected cost of (1) erroneous condemnation and deterrence of beneficial conduct (“false positives,” or “Type I errors”); (2) erroneous allowance and under-deterrence of harmful conduct (“false negatives,” or “Type II errors”); and (3) the costs of administering the system.

Accordingly, “skewing” the merger-analysis framework toward blocking mergers could, in theory, be appropriate where the enforcer or the courts knew that mergers are always or almost always harmful (as in the case of, e.g., cartels). But we have already established that the opposite is, in fact, true: most mergers are either benign or procompetitive. The Consultation’s caveat that this would apply only in cases where “there is sufficient uncertainty about competition impacts” does not carve out a convincing exception to this principle. This is particularly true given that, in a forward-looking exercise, there is, by definition, always some degree of uncertainty about future outcomes. Given that most mergers are procompetitive or benign, any lingering uncertainty should, in any case, be resolved in favor of allowing a merger, not blocking it.

Concrete evidence of a likely substantial lessening of competition post-merger should therefore continue to be the decisive factor in decisions to block a merger, not uncertainty about its effects (see also the response to Question 17). Under uncertainty, the error-cost framework when applied to antitrust leads in most cases to a preference of Type II over Type I errors, and mergers are no exception.[17] The three main reasons can be summarized as follows. First, “mistaken inferences and the resulting false condemnations are especially costly, because they often chill the very conduct the antitrust laws are designed to protect.”[18] The aforementioned procompetitive benefits of mergers, coupled with the general principle that parties should have the latitude in a free-market economy to buy and sell to and from whomever they choose, are cases in point. Second, false positives may be more difficult to correct, especially in light of the weight of judicial precedent.[19] Third, the costs of a wrongly permitted monopoly are small compared to the costs of competition wrongly condemned.[20] As Lionel Robbins once said: monopoly tends to break, tariffs tend to stick.[21] The same is applicable to prohibited mergers.

In sum, Australia should not skew its merger regime toward blocking mergers under uncertainty.

B.   Question 8

Is there evidence of acquisitions by large firms (such as serial or creeping acquisitions, acquisitions of nascent competitors, ‘killer acquisitions’, and acquisitions by digital platforms) having anti-competitive effects in Australia?

We do not know whether there have been any such cases in Australia. We would, however, like to offer more general commentary on the relevance of nascent competition and killer acquisitions in the context of merger control, especially as concerns digital platforms.

One of the most important concerns about acquisitions by the major incumbent tech platforms is that they can be used to eliminate potential competitors that currently do not compete, but could leverage their existing network to compete in the future—a potential that incumbents can better identify than can competition enforcers.[22]

As the Furman Review states:

In mergers involving digital companies, the harms will often centre around the loss of potential competition, which the target company in an adjacent market may provide in the future, once their services develop.[23]

Similar concerns have been raised in the Stigler Report,[24] the expert report commissioned by Commissioner Margrethe Vestager for the European Commission,[25] and in the ACCC’s own Fifth Interim Report of the Digital Platform Services Inquiry.[26] Facebook’s acquisition of Instagram is frequently cited as a paradigmatic example of this phenomenon.

There are, however, a range of issues with using this concern as the basis for a more restrictive merger regime. First, while doubtless this kind of behavior is a risk, and competition enforcers should weigh potential competition as part of the range of considerations in any merger review, potential-competition theories often prove too much. If one firm with a similar but fundamentally different product poses a potential threat to a purchaser, there may be many other firms with similar, but fundamentally different, products that do, too.

If Instagram, with its photo feed and social features, posed a potential or nascent competitive threat to Facebook when Facebook acquired it, then so must other services with products that are clearly distinct from Facebook but have social features. In that case, Facebook faces potential competition from other services like TikTok, Twitch, YouTube, Twitter (X), and Snapchat, all of which have services that are at least as similar to Facebook’s as Instagram’s. In this case, the loss of a single, relatively small potential competitor out of many cannot be counted as a significant loss for competition, since so many other potential and actual competitors remain.

The most compelling version of the potential and nascent competition argument is that offered by Steven Salop, who argues that since a monopolist’s profits will tend to exceed duopolists’ combined profits, a monopolist will normally be willing and able to buy a would-be competitor for more than the competitor would be able to earn if it entered the market and competed directly, earning only duopoly profits.[27]

While theoretically elegant, this model has limited use in understanding real-world scenarios. First, it assumes that entry is only possible once—i.e., that after a monopolist purchases a would-be competitor, it can breathe easy. But if repeat entry is possible, such that another firm can enter the market at some point after an acquisition has taken place, the monopolist will be engaged in a potentially endless series of acquisitions, sharing its monopoly profits with a succession of would-be duopolists until there is no monopoly profit left.

Second, the model does not predict what share of monopoly profits would go to the entrant, as compared to the monopolist. The entrant could hold out for nearly all of the monopolist’s profit share, adjusted for the entrant’s expected success in becoming a duopolist.

Third, apart from being a poor strategy for preserving monopoly profits—since these may largely accrue to the entrants, under this model—this could lead to stronger incentives for entry than in a scenario where the duopolists were left to compete with one another, leading to more startup formation and entry overall.

Finally, acquisitions of potential competitors, far from harming competition, often benefit consumers. The acquisition of Instagram by Facebook, for example, brought the photo-editing technology that Instagram had developed to a much larger market of Facebook users, and provided those services with a powerful monetization mechanism that was otherwise unavailable to Instagram.[28] As Ben Sperry has written:

Facebook has helped to build Instagram into the product it is today, a position that was far from guaranteed, and that most of the commentators who mocked the merger did not even imagine was possible. Instagram’s integration into the Facebook platform in fact did benefit users, as evidenced by the rise of Instagram and other third-party photo apps on Facebook’s platform.[29]

In other words, many supposedly anticompetitive acquisitions appear that way only because of improvements made to the acquired business by the acquiring platform.[30]

As for “killer acquisitions,” this refers to scenarios in which incumbents acquire a firm just to shut down pipelines of products that compete closely with their own. By eliminating these products and research lines, it is feared that “killer acquisitions” could harm consumers by eliminating would-be competitors and their products from the market, and thereby eliminating an innovative rival. A recent study by Marc Ivaldi, Nicolas Petit, and Selçukhan Ünekbas, however, recommends caution surrounding the killer acquisition “hype.” First, despite the disproportionate attention they have been paid in policy circles, “killer acquisitions” are an exceedingly rare phenomenon. In pharmaceuticals, where the risk is arguably the highest, it is they account for between 5.3% and 7.4% of all acquisitions, while in digital markets, the rate is closer to 1 in 175.[31] The authors ultimately find that:

Examining acquisitions by large technology firms in ICT industries screened by the European Commission, [we find] that acquired products are often not killed but scaled, post-merger industry output demonstrably increases, and the relevant markets remain dynamic post-transaction. These findings cast doubt on contemporary calls for tightening of merger control policies.[32]

Thus, acquisitions of potential competitors and smaller rivals more often than not lead to valuable synergies, efficiencies, and the successful scaling of products and integration of technologies.

But there is an arguably even more important reason why the ACCC should not preventively restrict companies’ ability to acquire smaller rivals (or potential rivals). To safeguard incentives to invest and innovate, it is essential that buyouts remain a viable “way out” for startups and small players. As ICLE has argued previously:

Venture capitalists invest on the understanding that many of the businesses in their portfolio will likely fail, but that the returns from a single successful exit could be large enough to offset any failures. Unsurprisingly, this means that exit considerations are the most important factor for VCs when valuing a company. A US survey of VCs found 89% considered exits important and 48% considered it the most important factor. This is particularly important for later-stage VCs.”[33] (emphasis added)

Indeed, the “killer” label obfuscates the fact that acquisitions are frequently a desired exit strategy for founders, especially founders of startups and small companies. Investors and entrepreneurs hope to make money from the products into which they are putting their time and money. While that may come from the product becoming wildly successful and potentially displacing an incumbent, this outcome can be exceedingly difficult to achieve. The prospect of acquisition increases the possibility that these entrepreneurs can earn a return, and thus magnifies their incentives to build and innovate.[34]

In sum, while potential competition and so-called killer acquisitions are important theories for the ACCC to consider when engaging in merger review, neither theory suggests that the burden of proof needed to reject a merger should be changed, much less warranting an overhaul of the existing merger regime. Furthermore, given the paucity of “killer acquisitions” in the real world, it is highly unlikely that any economic woes that Australia currently faces are due to an epidemic of killer acquisitions or acquisitions of potential/nascent competitors. Indeed, a recent paper by Jonathan Barnett finds the concerns around startup acquisitions to have been vastly exaggerated, while their benefits have been underappreciated:

A review of the relevant body of evidence finds that these widely-held views concerning incumbent/startup acquisitions rest on meager support, confined to ambiguous evidence drawn from a small portion of the total universe of acquisitions in the pharmaceutical market and theoretical models of acquisition transactions in information technology markets. Moreover, the emergent regulatory and scholarly consensus fails to take into account the rich body of evidence showing the critical function played by incumbent/startup acquisitions in supplying a monetization mechanism that induces venture-capital investment and promotes startup entry in technology markets.

In addition:

Proposed changes to merger review standards would disrupt these efficient transactional mechanisms and are likely to have counterproductive effects on competitive conditions in innovation markets.[35]

Accordingly, if the Treasury is going to adopt any rules to address these theories of harm, it should do so in a way consistent with the error-cost framework (see reply to Question 6); that does not undercut the benefits and incentives that derive from the prospect of acquisition by a larger player; and that accurately reflects the real (modest) anticompetitive threat posed by killer acquisitions, rather than one animated by dystopic hyperbole.[36]

C.   Question 9

Should Australia’s merger regime focus more on acquisitions by firms with market power, and/or the effect of the acquisitions on the overall structure of the market?

Merger control should remain tethered to analysis of competitive effects within the framework of the SLC test, rather than on fostering any particular market structure. Market structure is, at best, an imperfect proxy for competitive effects and, at worst, a misleading one. As such, it should be considered just one tool among many for scrutinizing mergers, not an end in itself.

To start, the assumption that “too much” concentration is harmful presumes both that the structure of a market is what determines economic outcomes, and that anyone knows what the “right” amount of concentration is.[37] But as economists have understood since at least the 1970s, (despite an extremely vigorous, but ultimately futile, effort to show otherwise), market structure is not outcome determinative.[38] As Harold Demsetz has written:

Once perfect knowledge of technology and price is abandoned, [competitive intensity] may increase, decrease, or remain unchanged as the number of firms in the market is increased.… [I]t is presumptuous to conclude… that markets populated by fewer firms perform less well or offer competition that is less intense.[39]

This view is well-supported, and held by scholars across the political spectrum.[40] To take one prominent recent example, professors Fiona Scott Morton (deputy assistant attorney general for economics in the U.S. Justice Department Antitrust Division under President Barack Obama), Martin Gaynor (former director of the Federal Trade Commission Bureau of Economics under President Obama), and Steven Berry surveyed the industrial-organization literature and found that presumptions based on measures of concentration are unlikely to provide sound guidance for public policy:

In short, there is no well-defined “causal effect of concentration on price,” but rather a set of hypotheses that can explain observed correlations of the joint outcomes of price, measured markups, market share, and concentration.… Our own view, based on the well-established mainstream wisdom in the field of industrial organization for several decades, is that regressions of market outcomes on measures of industry structure like the Herfindahl Hirschman Index should be given little weight in policy debates.[41]

The absence of correlation between increased concentration and both anticompetitive causes and deleterious economic effects is also demonstrated by a recent, influential empirical paper by Shanat Ganapati. Ganapati finds that the increase in industry concentration in U.S. non-manufacturing sectors between 1972 and 2012 was “related to an offsetting and positive force—these oligopolies are likely due to technical innovation or scale economies. [The] data suggests that national oligopolies are strongly correlated with innovations in productivity.”[42] In the end, Ganapati found, increased concentration resulted from a beneficial growth in firm size in productive industries that “expand[s] real output and hold[s] down prices, raising consumer welfare, while maintaining or reducing [these firms’] workforces.”[43] Sam Peltzman’s research on increasing concentration in manufacturing finds that it has, on average, been associated with both increased productivity growth and widening margins of price over input costs. These two effects offset each other, leading to “trivial” net price effects.[44]

Further, the presence of harmful effects in industries with increased concentration cannot readily be extrapolated to other industries. Thus, while some studies have plausibly shown that an increase in concentration in a particular case led to higher prices (although this is true in only a minority of the relevant literature), assuming the same result from an increase in concentration in other industries or other contexts is simply not justified:

The most plausible competitive or efficiency theory of any particular industry’s structure and business practices is as likely to be idiosyncratic to that industry as the most plausible strategic theory with market power.[45]

As Chad Syverson recently summarized:

Perhaps the deepest conceptual problem with concentration as a measure of market power is that it is an outcome, not an immutable core determinant of how competitive an industry or market is… As a result, concentration is worse than just a noisy barometer of market power. Instead, we cannot even generally know which way the barometer is oriented.[46]

In other words, depending on the nature and dynamics of the market, competition may well be protected under conditions that preserve a certain number of competitors in the relevant market. But competition may also be protected under conditions in which a single winner takes all on the merits of their business.[47] It is reductive, and bad policy, to presume that a certain number of competitors is always and everywhere conducive to better economic outcomes, or indicative of anticompetitive harm.

This does not mean that concentration measures have no use in merger enforcement. Instead, it demonstrates that market concentration is often unrelated to antitrust enforcement because it is driven by factors that are endogenous to each industry. In revamping its merger-control rules, Australia should be careful not to rely too heavily on structural presumptions based on concentration measures, as these may be poor indicators of those cases where antitrust enforcement would be most beneficial to consumers.

In sum, market structure should remain only a proxy for determining whether a transaction significantly lessens competition. It should not be at the forefront of merger review. And it should certainly not be the determining factor in deciding whether to block a merger.

D.   Question 13

Should Australia introduce a mandatory notification regime, and what would be the key considerations for designing notification thresholds?

The ACCC has argued that Australia is an “international outlier” in not requiring mandatory notification of mergers.[48] While it is true that most countries with merger-control rules also require mandatory notification of mergers when these exceed a certain threshold, there are also notable examples where this is not the case. For example, the United Kingdom, one of the leading competition jurisdictions in the world, does not require mandatory notification of mergers.

In deciding whether to impose a mandatory-notification regime and accompanying notification thresholds, Australia should not—as a matter of principle—be guided by international trends. International trends may be a useful indicator, but they can also be misleading. Instead, Australia’s decision should be informed by close analysis of error costs. In particular, Australia should seek to understand how a notification regime would affect the balance between Type I and Type II errors in this context. A notification regime would presumably reduce false negatives without necessarily increasing false positives, which is a good outcome.

In its calculation, however, the Treasury cannot ignore the costs of filing mergers and of reviewing them. If designed poorly, mandatory notifications can be a burden for the merging firms, for third parties, and for the reviewing authorities, siphoning resources that could be better deployed elsewhere. It is here where a voluntary-notification regime could have an edge over the alternative. For instance, a study by Chongwoo Choe comparing systems of compulsory pre-merger notification with the Australian system of voluntary pre-merger notification found that:

Thanks to the signaling opportunity that arises when notification is voluntary, voluntary notification leads to lower enforcement costs for the regulator and lower notification costs for the merging parties. Some of the theoretical predictions are supported by exploratory empirical tests using merger data from Australia. Overall, our results suggest that voluntary merger notification may achieve objectives similar to those achieved by compulsory systems at lower costs to the merging parties as well as to the regulator.[49] (emphasis added).

If the Treasury nonetheless decides to mandate merger notification, the next step would be to establish a notification threshold, as it is evident that not all mergers can, or should, be notified to the Australian authorities. Indeed, many mergers may be patently uninteresting from a competition perspective (e.g., one small supermarket in Perth buying another), while others might not have a significant nexus with Australia (e.g., where an international company that does modest business in Australia buys a shop in Spain).[50] Too many merger notifications strain the public’s limited resources and disproportionately affect smaller companies, as these companies are less capable of covering administrative costs and filing fees. To mitigate such unnecessary costs, the Treasury should establish reasonable thresholds that help filter out transactions where the merging parties are unlikely to have significant market power post-merger.

But what constitutes a reasonable threshold? Our view is that there is no need to reinvent the wheel here. Turnover has typically been used as a proxy for a merger’s competitive impact because it offers a first indicator of the parties’ relative position on the market. Despite the Consultation’s claim that “mergers of all sizes are potentially capable of raising competition concerns,”[51] where the parties (and especially the target company) have either no or only negligible turnover in Australia, it is highly unlikely that the merger will significantly lessen competition. If the Treasury decides to impose mandatory notification for mergers, it should therefore consider using a turnover-based threshold.

E.    Question 17

Should Australia’s merger control regime require the decision-maker to be satisfied that a proposed merger:

  • would be likely to substantially lessen competition before blocking it; or

  • would not be likely to substantially lessen competition before clearing it?

The second option would essentially reverse the burden of proof in merger control. Instead of requiring the authority to prove that a merger would substantially lessen competition, it would fall on the merging parties to prove a negative—i.e., that the merger would not be likely to substantially lessen competition.

The ACCC has made this proposal because it:

Means that the risk of error is borne by the merger parties rather than the public. In the cases where this difference matters (for example where there is uncertainty or a number of possible future outcomes), the default position should be to leave the risk with the merger parties, not to put at risk the public interest in maintaining the state of competition into the future.[52]

The Consultation sympathizes. It recognizes that “there are trade-offs between the risks of false positives and false negatives in designing a merger test,” but contends that, while both lead to lower output, higher prices, lower quality, and less innovation, “allowing anti-competitive mergers means that merging parties benefit at the expense of consumers.”[53]

But this argument is based on a flawed premise. The risk of error—whether Type I or Type II error—is always borne by the public. The public is harmed by false positives in at least two ways. First, and most directly, it suffers harm through the foregone benefits that could have accrued from a procompetitive merger. As we have shown in our responses to Questions 6, 8, and 9, these benefits are common and can be economically substantial. Second, but no less important, false positives chill merger activity and discourage future mergers. This also negatively affects the public.

The extent to which chilling merger activity harms the public has, however, been obfuscated by a contrived dichotomy between “the public” and the merging parties, which taints the ACCC’s argumentation and skews the Conclusion. The merging parties are also part of society and, therefore, also part of “the public.” An unduly restrictive merger regime that prioritizes avoiding false negatives over false positives harms consumers. But it also harms the “public” more broadly, insofar as anyone could, potentially, have a direct interest in a merger, either as a stakeholder or a party to that merger.

In addition, a regime that requires companies to prove that a deal is not harmful (with the usual caveats about the difficulty of proving a negative) before being allowed to proceed unduly restricts economic freedom and the rights of defense—both of which are very “public” benefits, as everyone, in principle, benefits from them. These elements should also be taken into consideration when weighing the costs and benefits of Type I and Type II errors. That balancing test should, in our view, generally favor false negatives, as argued in our response to Question 6.

Finally, there is no objective, material justification for “[shifting] the default position from allowing mergers to proceed where there is uncertainty [which is, by definition, always in a merger review process that is forward-looking] to a position where, if there is sufficient uncertainty about the effects of a merger, it would not be cleared.” As discussed in our answer to Question 6, the vast majority of mergers are procompetitive, including mergers in the digital sector, or mergers that involve digital platforms. This presumption is reflected in the requirement, common across antitrust jurisdictions, that enforcers must make a prima facie case that a merger will be anticompetitive before the merging parties have a duty to respond. There has been no major empirical finding or theoretical revelation in recent years that would justify reversing this burden of proof. Indeed, any change along these lines would be guided by ephemeral political and industrial-policy exigencies, rather than by robust principles of law and economics. In our view, these are not sound reasons for flipping merger review on its head.

In sum, Australian merger control should require that a decisionmaker be satisfied that a merger would be likely to substantially lessen competition before blocking it.

F.    Question 18

Should Australia’s substantial lessening of competition test be amended to include acquisitions that ‘entrench, materially increase or materially extend a position of substantial market power’?

According to the ACCC:

Under the current substantial lessening of competition test, it may be difficult to stop acquisitions that lead to a dominant firm extending their market power into related or adjacent markets.[54]

The ACCC imagines this is a problem, particularly in digital markets. Preventing dominant firms from leveraging their market power in one market to restrict competition in an adjacent one is a legitimate concern. We should, however, be clear about what is meant by “materially increase or materially extend a position of substantial market power.”

Merger control should not, as a matter of principle, seek to prevent incumbents from entering adjacent markets. Large firms moving into the core business of competitors from adjacent markets often represents the biggest source of competition for incumbents, as it is often precisely these firms who have the capacity to contest competitors’ dominance in their core businesses effectively. This scenario is prevalent in digital markets, where incumbents must enter multiple adjacent markets, most often by supplying highly differentiated products, complements, or “new combinations” of existing offerings.[55]

Moreover, it is unclear why the SLC test in its current state is insufficient to curb the misuse of market power. The SLC test is a standard used by regulatory authorities to assess the legality of proposed mergers and acquisitions. Simply put, it examines whether a prospective merger is likely to substantially lessen competition in a given market, with the purpose of preventing mergers that increase prices, reduce output, limit consumer choice, or stifle innovation as a result of a decrease in competition.

The SLC test is one of the two major tests deployed by competition authorities to determine whether a merger is anticompetitive, the other being the dominance test. Most merger-control regimes today use the SLC test, and for two good reasons. The first is that, under the dominance test, it is difficult to assess coordinated effects and non-horizontal mergers.[56] The other, mentioned in the Consultation, is that the SLC test allows for more robust effects-based economic analysis.[57]

The SLC test examines likely coordinated and non-coordinated effects in all three types of mergers: horizontal, vertical, and conglomerate. Horizontal mergers may substantially lessen competition by eliminating a significant competitive constraint on one or more firms, or by changing the nature of competition such that firms that had not previously coordinating their behavior will be more likely to do so. Vertical and conglomerate mergers tend to pose less of a risk to competition.[58] Still, there are facts and circumstances under which they can substantially lessen competition by, for example, foreclosing rivals from necessary inputs, supplies, or markets. These outcomes will often be associated with an increase in market power. As the OECD has written:

The focus of the SLC test lies predominantly on the impact of the merger on existing competitive constraints and on measuring market power post-merger.[59]

In other words, the SLC test already accounts for increases in market power that are capable and likely of harming competition. As to whether the “entrenchment” of market power—in line with the 2022 amendments to Canadian competition law—should be added to the SLC test, there is no reason to believe that this is either necessary or appropriate in the Australian context. The 2022 amendments to the Canadian competition law mentioned in the Consultation[60] largely align Canada’s merger control with its abuse-of-dominance provision, which prohibits anti-competitive activities that damage or eliminate competitors and that “preserve, entrench or enhance their market power.”[61] But in Australia, Section 46 (the equivalent of the Canadian abuse-of-dominance provision) prohibits conduct “that has the purpose, or has or is likely to have the effect, of substantially lessening competition.” The proposed amendment would thus create a discrepancy between merger control and Section 46, where the latter would remain tethered to an SLC test, and the former would shift to a new standard. Additionally, since it remains unclear what the results of Canada’s 2022 merger-control amendments have been or will be, it would be wiser for Australia to adopt a “wait and see” approach before rushing to replicate them.

Lastly, there is the question of defining “materiality” in the context of an increase or entrenchment of market power. Currently, Section 50 prohibits mergers that “substantially lessen competition,” with no mention of materiality.[62] The Merger Guidelines do, however, state that:

The term “substantial” has been variously interpreted as meaning real or of substance, not merely discernible but material in a relative sense and meaningful.[63] (emphasis added)

The proposed amendment follows suit, referring to the concepts of “material increase” and “material extension” of market power. What does this mean? How does a “material increase” in market power differ from a non-material one? In its comments to the American Innovation and Choice Online Act (“AICOA”), the American Bar Association’s Antitrust Law Section criticized the bill for using amorphous terms such as “fairness,” “preferencing,” and “materiality,” or the “intrinsic” value of a product. Because these concepts were not defined either in the legislation or in existing case law, the ABA argued that they injected variability and indeterminacy into how the legislation would be administered.[64] The same argument applies here.

Accordingly, the SLC test should not be amended to include acquisitions that “entrench, materially increase or materially extend a position of substantial market power.”

G.   Question 19

Should the merger factors in section 50(3) be amended to increase the focus on changes to market structure as a result of a merger? Or should the merger factors be removed entirely?

On market structure, see our responses to Question 9 and Question 18.

The merger factors under Section 50(3) already overlap with the factors typically used under the SLC test. These include the structure of related markets; the merger’s underlying economic rationale; market accessibility for potential entrants; the market shares of involved undertakings; whether the market is capacity constrained; the presence of competitors (existing and potential); consumer behavior (the willingness and ability of consumers to switch to alternative products); the likely effect on consumers; the financial investment required for market entry; and the market share necessary for a buyer or seller to achieve profitability or economies of scale.

Similarly, Section 50(3) contains a list of the factors to be considered under the SLC test, including barriers to entry, the intensity of competition on the market, the likely effects on price and profit margins, and the extent of vertical integration, among others. Structural questions, such as the degree of concentration on the market, are also one of the listed factors under Section 50(3).

As a result, it is unclear how eliminating the merger factors would transform the SLC test, or why there should be more emphasis on market structure (on the proper role of market structure in merger-control analysis, see our answers to Question 9 and Question 18).

In sum, Section 50(3) should not be amended to increase the focus on changes to market structure as a result of a merger. It is also not clear what is gained from removing the factors in Section 50(3). More than a “modernization” (as the Consultation calls it),[65] the change appears redundant. To the extent that these factors place a “straitjacket” on courts (though, in principle, they are broad enough to be sufficiently flexible), however, they could be removed, so long as merger analysis remains tethered to the SLC test.

H.  Question 20

 Should a public benefit test be retained if a new merger control regime was introduced?

Antitrust law, including merger control, is not a “Swiss Army knife.”[66] Public-interest considerations should generally have limited to no weight in merger analysis, except in extremely specific cases proscribed by the law (e.g., public security and defense considerations). Expanding merger analysis to encompass non-competition concerns risks undermining the rule of law, diminishing legal certainty, and harming consumers.

In Australia, the Competition Act currently does not expressly limit the range of public benefits (or detriments) that may be taken into account by the ACCC when deciding whether to block or allow a merger (this includes not limiting them to those that address market failure or improve economic efficiency).[67] Thus, “anything of value to the community generally, any contribution to the aims pursued by the society” could, in theory, be considered a public benefit for the purpose of the public-benefit test.[68] The authorization regime also does not require the ACCC to quantify the level of public benefits and detriments.

Competition authorities are, in principle, ill-suited to rank, weigh, and prioritize complex, incommensurable goals and values against one other. They lack the expertise to meaningfully evaluate political, social, environmental, and other goals. They are independent agencies with a strict, narrow mandate, not political decision makers tasked with redistributing wealth or guiding society forward. Requiring them to consider broad public considerations when deciding on mergers magnifies the risk of discretionary and arbitrary decision making and undercuts legal certainty. This is as true for blocking mergers on the basis of public detriments as it is for allowing them on the basis of public benefits. By contrast, the consumer-welfare standard, which forms the basis of the SLC, is properly understood as:

Offer[ing] a tractable test that is broad enough to contemplate a variety of evidence related to consumer welfare but also sufficiently objective and clear to cabin discretion and honor the principle of the rule of law. Perhaps most significantly, it is inherently an economic approach to antitrust that benefits from new economic learning and is capable of evaluating an evolving set of commercial practices and business models.[69]

Consequently, we recommend that the public-interest test be jettisoned from merger analysis, or at least very narrowly circumscribed, if a new merger-control regime is introduced in Australia.

I.      Question 24

What is the preferred option or combination of elements outlined above? What implementation considerations would need to be taken into account?

In our opinion, and based on the arguments espoused in this submission, the best options would be as follows:

[1] International Center for Law & Economics, https://laweconcenter.org.

[2] Australian Competition and Consumer Commission v Pacific National Pty Limited [2020] FCAFC 77, [246].

[3] Australian Competition and Consumer Commission v Pacific National Pty Limited [2020] FCAFC 77, [104].

[4] Outline to Treasury: ACCC’s Proposals for Merger Reform, Australian Competition and Consumer Commission (2023), 5, 8, available at https://www.accc.gov.au/system/files/accc-submission-on-preliminary-views-on-options-for-merger-control-process.pdf.

[5] For example, in the EU, 94% of mergers are cleared without commitments, whereas only about 6% are allowed with remedies, and less than 0.5% of mergers are blocked or withdrawn by the parties. See Joanna Piechucka, Tomaso Duso, Klaus Gugler, & Pauline Affeldt, Using Compensating Efficiencies to Assess EU Merger Policy, VoxEU (10 Jan. 2022), https://cepr.org/voxeu/columns/using-compensating-efficiencies-assess-eu-merger-policy.

[6] Consultation, 4; ACCC 2023: 2, point 8e.

[7] Ronald Coase, The Nature of the Firm, 4(16) Economica 386-405 (Nov. 1937).

[8] Robert Kulick & Andre Card, Mergers, Industries, and Innovation: Evidence from R&D Expenditure and Patent Applications, NERA Economic Consulting (Feb. 2023), available at https://www.uschamber.com/assets/documents/NERA-Mergers-and-Innovation-Feb-2023.pdf.

[9] Francine Lafontaine & Margaret Slade, Vertical Integration and Firm Boundaries: The Evidence, 45(3) Journal of Economic Literature 677 (Sep. 2007).

[10] Dario Focarelli & Fabio Panetta, Are Mergers Beneficial to Consumers? Evidence from the Market for Bank Deposits, 93(4) American Economic Review 1152 (Sep. 2003).

[11] B. Espen Eckbo & Peggy Wier, Antimerger Policy Under the Hart-Scott-Rodino Act: A Reexamination of the Market Power Hypothesis, 28(1) Journal of Law & Economics 121 (Apr. 1985).

[12] See, e.g., in the context of tech mergers: Sam Bowman & Sam Dumitriu, Better Together: The Procompetitive Effects of Mergers in Tech, The Entrepreneurs Network & International Center for Law & Economics (Oct. 2021), available at https://laweconcenter.org/wp-content/uploads/2021/10/BetterTogether.pdf.

[13] Geoffrey A. Manne, Error Costs in Digital Markets, in Joshua D. Wright & Douglas H. Ginsburg (eds.), The Global Antitrust Institute Report on the Digital Economy, 33-108 (2020).

[14] Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88(5) Yale Law Journal 950-97, 968 (Apr. 1979).

[15] See, e.g., in the context of predatory pricing, Paul L. Joskow & Alvin K. Klevorick, A Framework for Analyzing Predatory Pricing Policy, 89(2) Yale Law Journal 213-70 (Dec. 1979).

[16] Manne, supra note 13, at 34, 41.

[17] Id.

[18] Verizon Comm’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 414 (2004) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 594 (1986)).

[19] Frank H. Easterbrook, The Limits of Antitrust, 63(1) Texas Law Review 1-40, 2-3, 15-16 (Aug. 1984).

[20] Id., (“Other things equal, we should prefer the error of tolerating questionable conduct, which imposes losses over a part of the range of output, to the error of condemning beneficial conduct, which imposes losses over the whole range of output.”)

[21] Lionel Robbins, Economic Planning and International Order, 116, (1937).

[22] This section is adapted, in part, from Bowman & Dumitriu, supra note 12.

[23] Jason Furman, et al., Unlocking Digital Competition: Report of the Digital Competition Expert Panel (Mar. 2019), 98, available at https://assets.publishing.service.gov.uk/media/5c88150ee5274a230219c35f/unlocking_digital_competition_furman_review_web.pdf (“Furman Review”).

[24] Committee for the Study of Digital Platforms Market Structure and Antitrust Subcommittee Report, Stigler Center for the Study of the Economy and the State (2019), 75, 88, available at https://research.chicagobooth.edu/-/media/research/stigler/pdfs/market-structure—report-as-of-15-may-2019.pdf (“Stigler Report”).

[25] Yves-Alexandre de Motjoye, Heike Schweitzer, & Jacques Crémer, Competition Policy for the Digital Era, European Commission Directorate-General for Competition (2019), 110-112, https://op.europa.eu/en/publication-detail/-/publication/21dc175c-7b76-11e9-9f05-01aa75ed71a1/language-en.

[26] See Sections 3.2., 6.2.2. of the Digital Services Platform Inquiry of September 2022, which finds a “high risk of anticompetitive acquisitions by digital platforms,” available at https://www.accc.gov.au/system/files/Digital%20platform%20services%20inquiry.pdf.

[27] Steven Salop, Potential Competition and Antitrust Analysis: Monopoly Profits Exceed Duopoly Profits, Georgetown Law Faculty Publications and Other Works 2380 (Apr. 2021), available at https://scholarship.law.georgetown.edu/facpub/2380.

[28] Geoffrey A. Manne, et al., Comments of the International Center for Law & Economics on the FTC & DOJ Draft Merger Guidelines, International Center for Law & Economics (18 Sep. 2023), 38, available at https://laweconcenter.org/wp-content/uploads/2023/09/ICLE-Draft-Merger-Guidelines-Comments-1.pdf.

[29] Ben Sperry, Killer Acquisition of Successful Integration: The Case of the Facebook/Instagram Merger, The Hill (8 Oct. 2020), https://thehill.com/blogs/congress-blog/politics/520211-killer-acquisition-or-successful-integration-the-case-of-the.

[30] Sam Bowman & Geoffrey A. Manne, Killer Acquisitions: An Exit Strategy for Founders, International Center for Law & Economics (Jul. 2020), available at https://laweconcenter.org/wp-content/uploads/2020/07/ICLE-tldr-Killer-acquisitions_-an-exit-strategy-for-founders-FINAL.pdf.

[31] See Colleen Cunningham, Florida Ederer, & Song Ma, Killer Acquisitions, 129(3) Journal of Political Economy 649-702 (Mar. 2021); see also Axel Gautier & Joe Lamesch, Mergers in the Digital Economy 54 Information Economics and Policy 100890 (2 Sep. 2020).

[32] Marc Ivaldi, Nicolas Petit, & Selçukhan Ünekbas, Killer Acquisitions in Digital Markets May be More Hype than Reality, VoxEU (15 Sep. 2023), https://cepr.org/voxeu/columns/killer-acquisitions-digital-markets-may-be-more-hype-reality (“The majority of transactions triggered increasing levels of competition in their respective markets.”)

[33] Bowman & Dumitriu, supra note 12.

[34] Bowman & Manne, supra note 30.

[35] Jonathan Barnett, “Killer Acquisitions” Reexamined: Economic Hyperbole in the Age of Populist Antitrust, USC Class Research Paper 23-1 (28 Aug. 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4408546.

[36] On the current wave of dystopian thinking in antitrust law, especially surrounding anything “digital,” see Dirk Auer & Geoffrey A. Manne, Antitrust Dystopia and Antitrust Nostalgia: Alarmist Theories of Harm in Digital Markets and their Origins, 28(4) George Mason Law Review 1281 (9 Sep. 2021).

[37] The response to this question is adapted from Manne, et al., supra note 28.

[38] See, e.g., Harold Demsetz, Industry Structure, Market Rivalry, and Public Policy, 16(1) Journal of Law & Economics 1-9 (Apr. 1973).

[39] See Harold Demsetz, The Intensity and Dimensionality of Competition, in Harold Demsetz, The Economics of the Business Firm: Seven Critical Commentaries 137, 140-41 (1995).

[40] Nathan Miller, et al., On the Misuse of Regressions of Price on the HHI in Merger Review, 10(2) Journal of Antitrust Enforcement 248-259 (28 May 2022).

[41] Steven Berry, Martin Gaynor, & Fiona Scott Morton, Do Increasing Markups Matter? Lessons from Empirical Industrial Organization, 33(3) Journal of Economic Perspectives 44-68, 48 (2019).

[42] Shanat Ganapati, Growing Oligopolies, Prices, Output, and Productivity, 13(3) American Economic Journal: Microeconomics 309-327, 324 (Aug. 2021).

[43] Id., 309.

[44] Sam Peltzman, Productivity, Prices and Productivity in Manufacturing: a Demsetzian Perspective, Coase-Sandor Working Paper Series in Law and Economics 917, (19 Jul. 2021).

[45] Timothy F. Bresnahan, Empirical Studies of Industries with Market Power, in Richard Schmalensee & Robert Willig (eds.), Handbook of Industrial Organization, 1011, 1053-54 (1989).

[46] Chad Syverson, Macroeconomics and Market Power: Context, Implications, and Open Questions, 33(3) Journal of Economic Perspectives 23-43, 26 (2019).

[47] Nicolas Petit & Lazar Radic, The Necessity of the Consumer Welfare Standard in Antitrust Analysis, ProMarket (18 Dec. 2023), https://www.promarket.org/2023/12/18/the-necessity-of-a-consumer-welfare-standard-in-antitrust-analysis.

[48] ACCC, 2023: 5.

[49] Chongwoo Choe, Compulsory or Voluntary Pre-Merger Notification? Theory and Some Evidence, 28(1) International Journal of Industrial Organization 10-20 (Jan. 2010).

[50] For an overview of the impact of unnecessary transaction costs in merger notification in the context of Ireland, see  Paul K. Gorecki, Merger Control in Ireland: Too Many Unnecessary Notifications?, ESRI Working Paper No. 383 (2011), https://www.econstor.eu/handle/10419/50090.

[51] Consultation, 24.

[52] ACCC, 2023, 9.

[53] Consultation, 29.

[54] Consultation, 19; ACCC, 2023: 6-7.

[55] Nicolas Petit, Big Tech and the Digital Economy: The Moligopoly Scenario (2020); see also Walid Chaiehoudj, On “Big Tech and the Digital Economy”: Interview with Professor Nicolas Petit, Competition Forum (11 Jan. 2021), https://competition-forum.com/on-big-tech-and-the-digital-economy-interview-with-professor-nicolas-petit.

[56] Standard for Merger Review, Organisation for Economic Co-operation and Development (11 May 2010), 6, available at https://www.oecd.org/daf/competition/45247537.pdf.

[57] Id.; see also Consultation, 31, indicating that “[SLC test] would enable mergers to be assessed on competition criteria but not prescriptively identify which competition criteria should be taken into account. It may permit more flexible application of the law and a greater degree of economic analysis in merger decision-making” (emphasis added).

[58] See, e.g., European Commission, Guidelines on the Assessment of Non-Horizontal Mergers Under the Council Regulation on the Control of Concentrations Between Undertakings (2008/C 265/07), paras. 11-13.

[59] OECD, supra note 56, at 16; see also European Commission, Guidelines on the Assessment of Horizontal Mergers Under the Council Regulation on the Control of Concentrations between Undertakings (2004/C 31/03).

[60] Consultation, 30-31.

[61] Canadian Competition Act, Sections 78 and 79.

[62] Section 44G, however, does mention a “material increase in competition.” (emphasis added).

[63] ACCC, Merger Guidelines (2008), available at https://www.accc.gov.au/system/files/Merger%20guidelines%20-%20Final.PDF ; see also Australia, Senate 1992, Debates, vol. S157, p. 4776, as cited in the Merger Guidelines (2008).

[64] Geoffrey A. Manne & Lazar Radic, The ABA’s Antitrust Law Section Sounds the Alarm on Klobuchar-Grassley, Truth on the Market (12 May 2022), https://truthonthemarket.com/2022/05/12/the-abas-antitrust-law-section-sounds-the-alarm-on-klobuchar-grassley.

[65] Consultation, 39.

[66] Geoffrey A. Manne, Hearing on “Reviving Competition, Part 5: Addressing the Effects of Economic Concentration on America’s Food Supply,” U.S. House Judiciary Subcommittee on Antitrust, Commercial, and Administrative Law (19 Jan. 2021), available at https://laweconcenter.org/wp-content/uploads/2022/01/Manne-Supply-Chain-Testimony-2021-01-19.pdf.

[67] Out-of-Market Efficiencies in Competition Enforcement – Note by Australia, Organisation for Economic Co-operation and Development (6 Dec. 2023), available at https://one.oecd.org/document/DAF/COMP/WD(2023)102/en/pdf.

[68] Re Queensland Co-Op Milling Association Limited and Defiance Holdings Limited (QCMA) (1976) ATPR 40-012.

[69] Elyse Dorsey, et al., Consumer Welfare & The Rule of Law: The Case Against the New Populist Antitrust Movement, 47 Pepperdine Law Review 861 (1 Jun. 2020).

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TL;DR tl;dr Background: In the U.S. Justice Department’s (DOJ) recent suit against Google and the Federal Trade Commission’s (FTC) latest complaint against Amazon, both antitrust agencies . . .


Background: In the U.S. Justice Department’s (DOJ) recent suit against Google and the Federal Trade Commission’s (FTC) latest complaint against Amazon, both antitrust agencies allege these large technology firms behave anti-competitively by preventing their rivals from reaching the “scale” needed to compete effectively.

But… achieving scale or a large customer base does not, in itself, violate antitrust law. Private companies also owe no duty to allow their competitors to reach scale. For example, Google is not required to allow Bing to gain more users so that Bing’s quality can improve. Google and Amazon’s competition for users at the expense of competitors is central to the competitive process. To make an effective antitrust case, the agencies must delineate how Amazon and Google allegedly abuse their size in ways that harm competition and consumers.



Antitrust regulators often cite “scale” in recent complaints against large tech companies. Instead of throwing that particular term around loosely, the enforcement agencies should detail precisely how firms allegedly abuse scale to harm rivals. 

Does scale unfairly raise barriers to entry? Does it impose costs on competitors? In both of the cases cited above, the alleged harm is the direct costs imposed on competitors, not the firm’s scale. After all, scale can be just another way of describing the firm that produces the highest-quality product at the lowest price. Without greater clarity, enforcement agencies would be unable to substantiate antitrust claims centered on “scale.”

To prevail in court, the agencies must articulate precise mechanisms of competitive injury from scale. Broad assertions about nebulous “scale advantages” are unlikely to demonstrate concrete anticompetitive effects. 


It has long been recognized that simply “achieving scale” and becoming a large firm with significant market share or production capacity does not constitute an antitrust violation. No law prohibits a company from growing large through legal competitive means. The agencies know this. The FTC argues that its complaint against Amazon is “not for being big.”

While scale can potentially be abused, it also confers significant consumer advantages. Basic economic principles demonstrate the benefits of size or scale, which may allow larger firms to reduce average costs and become more efficient. These cost savings can then be passed on to consumers through lower prices. Larger firms may also be able to make more substantial investments in innovation and product development. And network effects in technology platforms show how scale can improve service quality by attracting more users. 

Scale only becomes an issue if it is leveraged to restrain trade unfairly or in ways that harm consumers. The restraint is the harm, not the scale.


Preventing a competitor from achieving greater size and scale is not inherently an antitrust violation either. Companies routinely take business from one another through price competition, product improvements, or other means that may limit rivals’ growth. This is a normal part of market competition. 

For example, if Amazon achieves sufficient scale that allows it to offer better prices or selection than smaller e-commerce websites, that may necessarily limit those competitors’ scale. But this does not constitute an antitrust harm; it is, instead, simply vigorous competition. An antitrust violation requires the firm to take specific actions to restrain trade or artificially raise rivals’ costs. Similar arguments hold for the DOJ’s case against Google over the company paying to be the default search engine on various mobile devices. 

Unless the agencies can demonstrate precisely how a company has abused its position to undermine rivals’ scale unfairly—rather than winning business through competition on the merits—their complaints will struggle to establish antitrust liability.


Regulators often assume that large scale enables anticompetitive behavior to harm smaller rivals. Economic analysis, however, demonstrates that scale can benefit consumers and simultaneously increase concentration through competition.

Firms that achieve significant scale can leverage resulting efficiencies to reduce costs and prices. Scale enables investments in R&D, specialized assets, advertising, and other drivers of innovation and productive efficiency. By passing cost savings on to consumers, scaled firms often gain share at the expense of higher-cost producers.

As search and switching costs fall, consumers flock to the lowest-cost and highest-quality offerings. Competition redirects purchases toward scaled companies with superior productivity and lower prices stemming from economies of scale. This reallocates market share to efficient large firms, raising concentration.

Greater competition and the competitive advantages of scale are thus entirely consistent with increased concentration. Size alone does not imply anticompetitive behavior. Regulators should evaluate specific evidence of abuse, rather than assume that scale harms competition simply because it leads to concentration.

For more on this issue, see Brian Albrecht’s posts “Is Amazon’s Scale a Harm?” and “Competition Increases Concentration,” both at Truth on the Market

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Antitrust & Consumer Protection