Commissioner Rosch has offered an interesting separate statement on the new HMGs.  While favoring the new guidelines generally, Commissioner Rosch offers several criticisms.  I concur with a few of these criticisms, for example, Commissioner Rosch also argues for a more empirical approach to merger analysis.  I agree with that general proposition despite, as we shall see below, the fact that the Commissioner offers it along with the peculiar distinction between “economic evidence” which he rejects and “empirical evidence”.  The Commissioner should be applauded for putting these criticisms, as well as those with which I disagree of course, on the record.

Read the full piece here. 

A predatory pricing case in California under Section 17043 results in a $21 million fine awarded to one newspaper, the Bay Guardian, in a suit against a competitor, San Francisco Weekly (HT: Reason).  The suit alleged that the SF Weekly was selling advertising below cost for the purpose of harming a competitor.  A summary of the appellate decision (available here): No recoupment, no market power, no harm to competition, no problem.  One of the benefits of those requirements for predatory pricing claims under the Sherman Act is to minimize the use of litigation to subvert the competitive process.  No such luck under California law.  To get a sense of how different operation of 17043 from conventional federal antitrust analysis, consider the following excerpt from the opinion…

Read the full piece here. 

In an earlier post on the CARE Act, I highlighted the fact that the law would essentially immunize state laws regulating the distribution and sale of beer, wine and liquor wholesalers from challenge under the Commerce clause and the Sherman Act.  For more details on the CARE Act, see the earlier post, but the bottom line is that the CARE Act will put an end to successful challenges to anticompetitive state regulation protecting alcohol wholesalers such as the Costco v. Maleng or Granholm v. Heald.  In this post, I want to focus on a recent empirical research project that I undertook with FTC lawyer and economist James Cooper evaluating both the competitive effects and social harms from these state regulations of alcohol distribution.   For those who want to skip the background and get straight to the paper, here is the SSRN link to “State Regulation of Alcohol Distribution: The Effects of Post and Hold Laws on Output and Social Harms.”  The paper has also been released as part of the FTC Bureau of Economics working paper series.

Read the full piece here.

Todd posts below about the $26 billion bill before the US House today as a gift to teachers (or perhaps more accurately, teachers unions) and school bureacrats. In reality, only $10 billion of the funds is specifically slated to rehire laid off teachers and some other public employees. The other $16 billion is to fund another six months of increased Medicaid payments to the the States (according to this NYT article). In theory, States would use the freed up cash flow to retain more teachers, police and other public service employees. So it would appear the gift is more to the whole collection of public employee unions, not just the teachers. However, I want to focus on a different dimension of this bill: the use of the Federal government to circumvent State laws, rules and regulations regarding responsible fiscal spending.

Read the full piece here.

Abstract

The market definition analysis endorsed by the 2010 Proposed Horizontal Merger Guidelines (“new HMGs”) tends toward narrower relevant markets. Because the merging parties cannot point to the consumer gains outside of the narrowly defined product market, the new approach could lead to Section 7 liability for mergers that result in net increases in consumer welfare. This “out of market” efficiency problem obviously does not originate with the new HMGs, nor with the HMGs at all. However, the value of diversion approach to market definition is likely to dramatically increase its practical significance. Failure to incorporate “out of market” efficiencies into merger analysis flies in the face of the modern trend in favor of analyzing actual competitive effects rather than adopting simplifying and potentially misleading proxies. Further, the value of diversion approach adopted by the new HMGs is likely to increase the need for guidance on this score. This comment proposed that the new HMGs amend note 11 to make clear that they would not bring enforcement actions where the Agencies can prove anticompetitive effects in a narrower market, but where the evidence also supports the conclusion that out of market efficiencies are sufficient to eliminate consumer harm in the aggregate. A commitment to forbear from challenging mergers where out of market efficiencies outweigh anticompetitive effects merely updates the new HMGs in a manner consistent with the modern intellectual foundation of merger analysis.

There are hundreds and hundreds of academic articles in law, finance, economics, business, and other social sciences discussing the issue of executive compensation broadly and down to the smallest detail. There are none — actually, one working paper in draft form on one issue — that I can find on the issue of how much and how union bosses are paid. There are scattered news reports here and there, but nothing systematic. This is shocking. The problems are the same — agency costs and the potential for self-serving behavior — as in the corporate context. Although the amounts are likely lower than for CEOs, the agency costs may be higher. I’m working on trying to make some progress on these issues, but the lack of data may make them tough to get at.

Read the full piece here.

In this morning’s New York Times, Professor Paul Krugman laments the state of America, and, as a remedy, proposes . . . surprise! . . .  more government spending. He writes: “When we save a schoolteacher’s job, that unambiguously aids employment; when we give millionaires more money instead, there’s a good chance that most of that money will just sit idle.” I’m not an economist, but this sentence seems horribly flawed for someone who is. I agree that in a world with zero interest rates and 10 percent unemployment, some government priming of the pump might make sense. Macro-economic conditions need to be changed, and the government is uniquely positioned to do this. After all, it sets the rules, prints the money, sets the level of taxes, and determines through public policy where investment will flow. But the question is how and where to act. Krugman believes taxing us to raise money to pay teachers is part of the answer. I doubt it, for several reasons.

Read the full piece here. 

Earlier this year, the US Supreme Court granted a writ of certiorari to Costco in the case of OMEGA SA v. Costco Wholesale Corp. (541 F. 3d 982 (2008)).  At issue is whether the ‘first sale doctrine’ of US copyright law (17 U.S.C. § 109(a)), which limits the copyright owner’s ability to restrict distribution of its product after first sale, applies to foreign-manufactured products whose first sale was outside the U.S. and whose importation to the U.S. was not authorized by the manufacturer. (I happened to run across a July 31 op-ed by Eric Felten at the WSJ lamenting the potential for the case to limit the ability of libraries to lend books, particularly books originally published and purchased overseas.) The case raises some interesting issues about the role and purpose of copyright protection, segregated market price discrimination in a global economy, and the role of the gray markets in arbitraging global price disparities.

Read the full piece here.