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TOTM Spirit Airlines was supposed to be the competitor antitrust law saved. Instead, it may become the cautionary tale antitrust law cannot quite avoid. The carrier’s disappearance has . . .
Spirit Airlines was supposed to be the competitor antitrust law saved. Instead, it may become the cautionary tale antitrust law cannot quite avoid.
The carrier’s disappearance has transformed the JetBlue-Spirit merger litigation from an ordinary postmortem into a test case for how antitrust law should treat distressed challengers in concentrated network industries.
Read the full piece here.
Regulatory Comments I. Introduction and Legal Baseline The International Center for Law & Economics (ICLE) is a nonprofit research center based in Portland, Oregon, that applies economic . . .
The International Center for Law & Economics (ICLE) is a nonprofit research center based in Portland, Oregon, that applies economic analysis to legal and regulatory policy. ICLE submits these comments in response to the Federal Trade Commission (FTC) and U.S. Department of Justice (DOJ) Antitrust Division’s Request for Information (RFI) regarding improvements to the Hart-Scott-Rodino (HSR) premerger notification form.[1]
ICLE has engaged with HSR policy on several prior occasions. In September 2023, ICLE submitted comments on the agencies’ proposed HSR rule changes.[2] ICLE offered several recommendations relevant to this RFI:
In March 2024, ICLE submitted a letter to then-FTC Chair Lina Khan addressing deficiencies in the Regulatory Flexibility Act analysis accompanying the 2024 rulemaking.[3] ICLE also submitted comments on the agencies’ draft merger guidelines.[4]
The Updated HSR Form took effect Feb. 10, 2025.[5] On Feb. 12, 2026, the U.S. District Court for the Eastern District of Texas vacated the Updated Form.[6] The court found that the agencies had not shown that the Updated Form’s benefits outweighed its costs, as the statute requires. On March 19, 2026, the 5th U.S. Circuit Court of Appeals denied the Commission’s motion for a stay pending appeal.[7] The agencies have reverted to the pre-2025 form and have stated their intent to pursue new rulemaking.
The vacatur order sets the controlling legal baseline for this proceeding. Any new rule that reinstates the Updated Form’s requirements without additional empirical support would face the same legal vulnerability. Repeating factual assertions that a federal court already found insufficient will not satisfy the statutory standard for disclosure requirements.
The HSR Act authorizes the agencies to require disclosure of information “necessary and appropriate” for premerger review.[8] That information must relate to whether a proposed transaction “may, if consummated, violate the antitrust laws.”[9] The standard has two components: Information is necessary when antitrust analysis cannot proceed without it, and appropriate when the burden of producing it is proportionate to the antitrust interest it serves.
The vast majority of reported mergers are consummated without challenge or any allegation of likely anticompetitive effects. For example, the agencies reported challenging only 34 of the 2,031 transactions reported in fiscal 2024, or 1.7%.[10] Across the 21-year period from fiscal years 2004 through 2024, neither agency issued a second request in the overwhelming majority of cases. During that period, an average of just 2.7% of transactions received a second request from either agency (Table 1).[11]
That sub-3% second-request rate is central to applying the “necessary and appropriate” standard, as is the even smaller share of filings that lead to a complaint. Fewer than three out of every 100 HSR filings result in a second request. Universal disclosure requirements therefore impose costs on roughly 97 filers for every three whose transactions the agencies deem worthy of closer review. A requirement whose value materializes in less than 3% of cases must justify costs imposed on 100% of filers—and on agency staff. Where anticipated benefits are uncertain or unlikely, targeted tools—such as Voluntary Access Letters issued to the relevant subset of filers—are more proportionate than universal disclosure obligations.
ICLE appreciates that the agencies issued this RFI rather than rushing to publish a new Notice of Proposed Rulemaking (NPRM). We also appreciate that the RFI sensibly asks about the time, labor, and financial costs associated with various notification requirements. Gathering better information on compliance costs is a useful start, even if an open RFI has limits as a data-collection tool.
The agencies could further aid the inquiry by publishing their own analyses of information, including data, relevant to the other side of the cost-benefit analysis: What new information is likely to be most useful to the screening process, rather than merely of some possible utility?
The Updated Form introduced both useful and burdensome changes. This section identifies the requirements worth preserving, the requirements whose costs lack demonstrated screening benefits, and the role Voluntary Access Letters can play as a more proportionate alternative to universal disclosure mandates.
Three categories of the Updated Form’s requirements have a genuine antitrust justification and should be retained.
Statutory mandates. The Merger Filing Fee Modernization Act of 2022 created two new disclosure requirements.[12] Filers must report foreign subsidies received by the acquiring entity and transactions involving foreign entities of concern. These obligations come from Congress, not agency policy preferences. The agencies must retain them in any new form.
Electronic filing. The Updated Form moved HSR submissions to an electronic platform.[13] Electronic filing reduces administrative costs for filers and agency staff alike. If implemented effectively and efficiently, electronic filing has no connection to the substantive disclosure controversies that led to the vacatur. Any new form should retain electronic filing, subject to continued system improvements.
Officers and directors with competitor affiliations. The Updated Form required disclosure of officers and directors who hold positions at competing firms.[14] This requirement addresses a real information gap. When an individual serves simultaneously on the boards of competing companies, that relationship bears directly on competition analysis. The obligation applies only when the relevant relationship exists, and the information ordinarily should be available to filers without substantial additional research. ICLE supports retaining this requirement.
The Updated Form’s most burdensome requirements shared a common defect: They imposed costs on all filers for information whose connection to competitive-harm analysis was speculative or weak.
Strategic-rationale narratives. The requirement that merging parties draft a narrative to “identify and explain each strategic rationale for the transaction” forces filers to create documents that do not exist in the ordinary course of business.[15] ICLE noted that these narratives amount to a requirement to pre-write a reply brief to a hypothetical antitrust challenge, rather than to produce existing evidence.[16]
Supply-relationships narrative. The Updated Form required a narrative description of supply relationships between the merging parties.[17] For many filers, this meant creating documents that did not already exist. Firms do not ordinarily prepare written supply-relationship analyses when evaluating a transaction. The requirement therefore imposed real costs with limited screening value.[18] Before reinstating it, the agencies must identify specific transactions in which supply-relationship narratives revealed competitive problems. They must also explain why those problems would not otherwise have been detected.
The district court found that the agencies had not shown that the Updated Form’s benefits outweighed its costs.[19] A new rule reinstating these requirements without stronger empirical support would face the same legal vulnerability. The cost-benefit requirement is a substantive constraint on agency rulemaking. The agencies must produce affirmative evidence of screening benefits before they can justify reinstating the burdens the Updated Form imposed.
Before the Updated Form, the agencies used Voluntary Access Letters (VALs) to request supplemental information from specific filers when an initial filing raised questions. A VAL is a targeted request. It focuses information demands on transactions that actually warrant closer scrutiny. It does not impose a universal disclosure burden.
The VAL mechanism is the proper comparison point for any proposed expansion of initial filing requirements. A universal requirement covering information the agencies could obtain through targeted VALs in the relevant subset of cases does not satisfy the “necessary and appropriate” standard under 15 U.S.C. § 18a(d)(1).[20] The agencies should publish data on VAL compliance costs—including issuance frequency, the scope of information typically requested, and filer burden—before adopting any universal requirement covering the same categories of information.
Any expansion of the HSR Form’s informational demands must rest on evidence that the prior form failed to detect anticompetitive transactions. This section examines whether such evidence exists, identifies categories of transactions that warrant reduced disclosure, and proposes safe harbors and materiality thresholds to focus screening resources where competitive concerns are plausible.
The RFI asks for evidence of anticompetitive transactions that escaped detection before the Updated Form. ICLE takes this question seriously. To date, the agencies have not identified any specific transaction wrongly cleared under the prior form that the Updated Form’s additional requirements would have flagged.
ICLE previously analyzed the FTC’s Section 6(b) study of nonreported technology acquisitions by Alphabet, Amazon, Apple, Facebook, and Microsoft.[21] That study did not find that the analyzed transactions were anticompetitive. Nor did it find that expanded HSR disclosures would have identified any of them as problematic.
Ginger Zhe Jin, Mario Leccese, and Liad Wagman conducted a broader study of acquisitions by “GAFAM” firms and other top acquirers from 2010 through 2020.[22] They concluded that, “[o]verall, we find that technology acquisitions do not shield GAFAM from potential competition that may arise from other GAFAM members or other firms that acquire in the same categories.”
The absence of identified screening failures matters directly. Requirements that address no demonstrated gap in screening capability cannot produce benefits that outweigh their costs.
Expanded compliance costs also deter procompetitive mergers. When expected compliance costs exceed the expected gains from a transaction, firms may forgo deals that would benefit consumers. Two features of this deterrence make it particularly troubling.
First, the agencies cannot observe deals that parties never propose. The false negatives induced by compliance burdens are therefore invisible to the cost-benefit analysis the statute requires. Second, fixed compliance costs filter most aggressively against small deals and infrequent filers—the segment systematically least likely to raise antitrust concerns. The Updated Form’s burden thus falls heaviest on transactions the screening apparatus is least likely to flag, while the largest and most concentrating deals can absorb the cost with little marginal effect on deal flow.[23]
Three categories of transactions are systematically less likely to raise competitive concerns and should face reduced disclosure obligations.
Vertical acquisitions with no horizontal overlap. When buyer and seller do not compete in any product or geographic market, the transaction cannot reduce horizontal competition. While vertical acquisitions can, in theory, be anticompetitive, empirical evidence suggests they more often produce efficiencies than harm. As Francine Lafontaine and Margaret Slade found, “under most circumstances, profit-maximizing vertical integration decisions are efficient, not just from the firms’ but also from the consumers’ points of view.”[24]
The economic intuition is straightforward. A firm with market power to harm rivals through input foreclosure post-merger generally has that same power pre-merger and can exercise it through ordinary commercial dealing without integrating. Vertical mergers therefore rarely create new exclusionary capacity. In most cases, they capture internal efficiencies that would otherwise be lost to transaction and contracting costs, including the elimination of double marginalization. Vertical acquisitions with no horizontal overlap should face minimal disclosure requirements.
Acquisitions in unconcentrated markets. Acquisitions resulting in post-merger markets with a Herfindahl-Hirschman Index (HHI) below 1,000 are unlikely to raise competitive concerns. HHI measures market concentration by summing the squares of each competitor’s market-share percentage. Although the 2010 Horizontal Merger Guidelines characterize markets as unconcentrated at any HHI below 1,500, a safe-harbor floor warrants a stricter threshold.[25] Transactions below that threshold should face streamlined disclosure.
Small-revenue-share acquisitions. Acquisitions in which the acquired firm’s revenue in any overlapping market falls below a defined materiality threshold warrant similar treatment. A firm with minimal revenue in a market cannot meaningfully reduce competition there. A revenue-share threshold—for example, 5% in any overlapping market—would concentrate enhanced disclosure on transactions where competitive effects are plausible.
The most analytically grounded safe harbor would use the Gross Upward Pricing Pressure Index (GUPPI) as its primary screen. GUPPI measures the merged firm’s incentive to raise prices by combining the diversion ratio between the merging parties’ products with the margin on the gaining product. Because GUPPI captures the merger’s pricing incentive at its source, it bypasses the structural proxies that drive much of the contested ground in merger litigation.
A low GUPPI indicates either that diversion between the parties is small or that the relevant margin is low. In either condition, the merged firm has little incentive to raise price, even absent further constraint. Transactions with a GUPPI below a defined threshold are unlikely to produce significant price effects. Four FTC commissioners concluded that GUPPI analysis can serve as a “starting point” and an “important screen.”[26] ICLE scholars have argued that the DOJ and FTC should establish a clear 5% safe harbor for low-GUPPI mergers.[27]
A GUPPI-based safe harbor would concentrate the Updated Form’s most demanding disclosures on transactions where pricing-pressure concerns are most plausible. Transactions below the threshold would require only the basic disclosures of the pre-2025 form. Transactions above the threshold would require enhanced disclosure targeted to the specific competitive concern identified. Disclosure requirements should scale with competitive risk.
The RFI raises the possibility of narrowing the solely-for-investment exemption and extending HSR coverage to nontraditional transaction structures. This section explains why the investment exemption should not be narrowed based on contested common-ownership theories. It also evaluates acquihires, convertible-securities transactions, and nonexclusive intellectual-property licenses on their own terms.
The HSR Act exempts acquisitions of voting securities made “solely for the purpose of investment.” The RFI suggests the agencies may clarify that this exemption does not cover investors who use ownership to influence a corporation’s competitive decision-making. The cited occasion for this consideration is Texas v. BlackRock, Inc.[28] ICLE urges caution.
The Texas v. BlackRock litigation rests on contested theories about common ownership. Common ownership refers to institutional investors holding minority stakes in multiple competing firms. José Azar, Martin Schmalz, and Isabel Tecu published research in 2018 finding that airline ticket prices were higher in markets where competing airlines shared common institutional shareholders.[29] Subsequent economic research has identified significant methodological problems in that analysis, and the empirical findings remain disputed.[30] Thomas Lambert and Michael Sykuta have argued that standard antitrust doctrine does not support common-ownership liability theories as a matter of law.[31]
Against this contested backdrop, narrowing the investment exemption would impose real costs. The proposed formulation—excluding investors who use ownership to “influence a corporation’s competitive decision-making”—is too vague to provide meaningful compliance guidance. Proxy voting, board-governance engagement, and shareholder resolutions on environmental and social matters are standard practices for institutional investors. None of these activities connects to the anticompetitive mechanism hypothesized in the common-ownership literature. That mechanism requires investors to coordinate competitive decisions across portfolio companies. A rule sweeping in routine shareholder engagement would impose HSR filing requirements on transactions that pose no antitrust risk.
Efficient capital allocation depends on a workable passive-investment exemption. Investors who cannot take minority stakes without triggering HSR reporting will adjust their portfolio strategies. Capital will flow to structures where HSR requirements do not apply. That adjustment may reduce allocative efficiency without producing any antitrust benefit.
ICLE supports guidance clarifying the existing boundaries of the investment exemption. Such guidance should address specific conduct—such as direct communications with management about pricing or output decisions in overlapping markets—that plausibly raises competitive concerns. It should not sweep in routine investor engagement. Formal rule changes are unwarranted given the unresolved empirical and legal questions.
The RFI identifies three categories of concern: acquihires, license-and-hire transactions, and nonexclusive intellectual-property licenses.
Acquihires. Acquihires are acquisitions structured primarily to obtain a company’s workforce. For an acquihire to raise antitrust concerns, the target firm must have been a significant competitive constraint and the transaction must eliminate that constraint. Neither condition follows from the acquihire structure itself. A firm can be acquired for its talent without having competed meaningfully in any product market.
Where both conditions are met, existing doctrine is adequate to the task. Where they are not met, HSR coverage is not warranted absent evidence that specific transactions have caused competitive harm. A structural presumption that talent acquisitions eliminate competitive constraints is not enough to justify premerger-notification obligations.
License-and-hire transactions. A related category has drawn recent regulatory attention: so-called “license-and-hire” or “reverse-acquihire” arrangements, in which a firm licenses a target’s technology on a nonexclusive basis while also hiring key personnel. These transactions raise two issues: one jurisdictional and one substantive.
On jurisdiction, these transactions do not involve the acquisition of voting securities, assets, or noncorporate interests that confer control. They therefore fall outside the HSR Act’s jurisdictional reach under 15 U.S.C. § 18a(a). The FTC’s Premerger Notification Office, which administers the HSR rules, has consistently maintained that a nonexclusive license is not an asset for HSR purposes. A nonexclusive licensing transaction therefore falls outside the Act’s filing requirements and is not subject to preconsummation review, regardless of the consideration involved.
Sens. Elizabeth Warren and Richard Blumenthal have suggested that such arrangements may constitute avoidance devices under Rule 801.90.[32] That rule provides that transactions structured to avoid the Act’s requirements should be disregarded in favor of the transaction’s substance. But analysis of the relevant case-based factors under Rule 801.90 confirms that a typical license-and-hire arrangement lacks the established indicia of avoidance—veiled agency, structural shifts, step transactions, risk shifting, or accelerated consideration.[33]
The deeper reason lies in the nature of employment itself. The HSR Act applies to acquisitions; employment decisions are not acquisitions. Section 6 of the Clayton Act provides that “the labor of a human being is not a commodity or article of commerce,” and employment contracts are unassignable without the employee’s consent. An employer does not “acquire” workers; it offers terms that individuals remain free to accept or reject.
As ICLE scholars have observed, talent acquisitions do not actually “acquire” talent in any sense recognized by the statute. Expanding merger-notification rules to capture license-and-hire structures would require treating voluntary employment decisions as reportable transactions—a step the statute does not contemplate and the inalienability principle resists.[34]
On substance, the jurisdictional conclusion does not foreclose scrutiny where competitive harm materializes. The critical distinction is between a genuine license-and-hire—where the licensor retains the absolute right to grant equivalent access to rivals on commercially meaningful terms—and a transaction that is an acquisition in substance, where formal nonexclusivity conceals de facto exclusivity.[35] Where a technology license eliminates a firm’s competitive significance, rather than merely hiring its team, the agencies retain full authority to investigate and challenge the transaction under Section 7 of the Clayton Act, regardless of whether HSR notification was required.
Extending the HSR Act’s filing requirements to cover license-and-hire arrangements categorically would impose premerger-notification costs on a broad class of commercial licensing and employment decisions without demonstrated screening benefits.
Nonexclusive intellectual-property licenses. Nonexclusive intellectual-property (IP) licenses do not ordinarily constitute acquisitions of competitive assets. A nonexclusive license leaves the licensor free to grant the same technology rights to others, including competitors of the licensee. No competitive position is transferred; the licensee merely gains access.
As noted above, formal nonexclusivity can mask de facto exclusivity. In such cases, the nonexclusive label does not determine the competitive analysis, and existing doctrine is adequate to prevent or remedy competitive harm. But extending HSR reporting to nonexclusive IP licenses without evidence that specific licenses caused competitive harm would require filings for transactions that do not resemble acquisitions in any meaningful sense.
Questions 14 and 15 address whether the agencies need additional tools to evaluate transactions restructured after the initial filing. ICLE agrees that late-proposed divestitures can create genuine informational gaps, but any new filing obligation must be narrow enough to avoid deterring parties from proposing remedies early.
Informational gaps in the current framework (Question 14). ICLE acknowledges the problem the agencies have identified. When merging parties propose divestitures after a second request or after enforcement litigation begins, the agencies face a real informational gap. The second-request process produces documents and analysis focused on the original transaction. A divestiture that removes assets from the deal or adds remedial supply agreements can substantially change the competitive analysis. The existing record may not address the modified transaction.
The problem is real, but narrow. It arises only in cases that receive a second request, present genuine competitive concerns, and are restructured after substantial review. These cases represent a small fraction of all HSR filings. Solutions that expand filing requirements broadly would not be proportionate to the problem.
Conditions for supplemental filings (Question 15). ICLE supports a narrow, well-defined supplemental-filing requirement. A supplemental filing should be triggered when parties propose a divestiture or structural modification after certifying substantial compliance with a second request. The modification must also materially alter the assets or operations to be acquired or retained.
Both conditions are necessary. The “after substantial compliance” trigger limits supplemental filings to cases that have already warranted full second-request review. The “material alteration” trigger excludes minor adjustments—such as technical corrections or clarifications of contract terms—that do not change the competitive analysis.
A broad supplemental-filing requirement—one triggered by any divestiture proposal at any stage—would deter parties from proposing remedies early. Early remedies benefit all parties. They reduce litigation costs and are often better designed than remedies produced through contentious consent-order negotiations.[36] A filing requirement that makes early remedy proposals costly would shift proposal timing toward later stages. That shift would increase total litigation costs and may reduce remedy quality.
Timing agreements are a lower-cost alternative. Under a timing agreement, parties provide documents on a proposed divestiture in exchange for a defined extension of the review period. This gives the agencies the information they need without creating a formal filing obligation that deters remedy proposals.
Any new requirement should be implemented through notice-and-comment rulemaking. Parties need clear, binding rules to plan their transactions and remedy proposals. Guidance that can shift without notice creates uncertainty and discourages efficient settlements.
The RFI raises several questions about the role of artificial intelligence in HSR compliance. ICLE opposes a mandatory disclosure requirement for artificial-intelligence (AI) tool use, which lacks antitrust relevance, but recognizes that AI-driven efficiencies in document review are changing the cost landscape for HSR compliance.
The RFI asks whether filers should be required to disclose their use of AI tools in preparing HSR submissions, including whether they used AI to identify and select submitted documents. ICLE does not support this requirement.
The purpose of HSR disclosure is to provide information relevant to a proposed transaction’s competitive effects. Whether a filer used AI tools to organize or review documents does not inform the agencies’ competitive analysis. A disclosure requirement without antitrust relevance cannot satisfy the “necessary and appropriate” standard under 15 U.S.C. § 18a(d)(1).
If the agencies’ concern is document-collection reliability, the appropriate response is guidance on document-collection standards. Such guidance can specify what review processes are adequate and what documents must be included in a production. A disclosure mandate does not address document-collection reliability directly.
The competitive conduct of AI tool providers is a legitimate subject of antitrust scrutiny. But that scrutiny belongs in investigations of AI market participants. It has no role in the HSR disclosure process for unrelated merger transactions.
AI tools can reduce the cost of document review for HSR submissions and second requests. Document review has historically been one of the most labor-intensive components of HSR compliance. It requires identifying, collecting, and reviewing documents responsive to a filing or information request. AI-assisted review can reduce the attorney hours required for that work.[37]
The agencies should account for AI-driven cost reductions when calibrating compliance-cost estimates in any new rulemaking. If the incremental cost of the Updated Form’s requirements is now lower than it was in 2024, that change is relevant to the cost-benefit analysis.
But AI-enabled cost reductions should not justify expanding informational demands. The relevant question is whether the information has antitrust value proportionate to its cost. If a requirement lacks antitrust value, lower compliance costs do not cure that defect. The agencies should not conclude that, because AI makes a disclosure cheaper to prepare, the disclosure is now justified.
The final set of RFI questions concerns the Form’s usability and the empirical record that should underlie any new rulemaking. ICLE highlights the disproportionate compliance burden on first-time and small-business filers, endorses a straightforward formatting improvement, and urges the agencies to publish a performance assessment of the Updated Form before reinstating comparable requirements.
Disproportionate burden on small businesses (Question 23). The Updated Form’s compliance costs fell most heavily on first-time and infrequent filers. Large corporations with dedicated antitrust compliance teams can build filing infrastructure across multiple transactions. A company filing for the first time must build that infrastructure from scratch. The Updated Form’s new requirements imposed fixed costs that experienced filers could spread across many filings, but that first-time filers could not.
The FTC’s Regulatory Flexibility Act (RFA) analysis in the 2024 rulemaking significantly underestimated these impacts. The RFA requires agencies to analyze proposed rules’ impact on small entities and consider alternatives that would minimize those impacts. The FTC’s analysis did not adequately account for the fixed costs that first-time and infrequent filers must incur to comply with new disclosure requirements.
Any new rulemaking must include a thorough RFA analysis that accounts for the full burden on small and infrequent filers. The agencies should consider small-business-specific exemptions or phased compliance schedules for first-time filers. A first-time filer acquiring a small business in an unconcentrated market poses a different antitrust risk than a repeat acquirer with established compliance infrastructure. Different treatment is warranted.
Section numbers (Question 22). The Form should include section numbers. Numbered sections reduce ambiguity for filers and allow agency staff to reference specific requirements precisely. This change imposes no meaningful compliance cost.
An empirical assessment of the Updated Form’s screening performance (Question 24). The agencies should publish an empirical assessment of the Updated Form’s screening performance during its implementation period. The assessment should address three questions:
This assessment is the minimum empirical predicate for any new rulemaking. The court vacated the Updated Form because the agencies failed to demonstrate that benefits outweighed costs. A new rule reinstating similar requirements without empirical evidence of screening performance will face the same legal vulnerability. The agencies had more than a year of implementation experience and more than 3,000 filings to analyze. They should use that data to build the factual record the 2024 rulemaking lacked.
[1] Fed. Trade Comm’n & Dep’t of Just., Request for Public Comment Regarding Making Improvements to the Premerger Notification and Report Form (Mar. 25, 2026), https://www.ftc.gov/system/files/ftc_gov/pdf/2026.03.25-HSR-RFI.pdf [hereinafter RFI].
[2] Int’l Ctr. for L. & Econ., Comments on Proposed Amendments to the HSR Form and Instructions, FTC Docket No. FTC-2023-0040 (Sept. 27, 2023), https://laweconcenter.org/wp-content/uploads/2023/09/HSR-form-comments.pdf [hereinafter ICLE 2023 HSR Comments].
[3] Int’l Ctr. for L. & Econ., Letter to FTC Chair Khan on Regulatory Flexibility Act Analysis (Mar. 2024), https://laweconcenter.org/wp-content/uploads/2024/03/ICLE-FTC-letter-re-HSR-Amendments-RFA-2024-03-05.pdf [hereinafter ICLE 2024 RFA Letter].
[4] Int’l Ctr. for L. & Econ., Comments on Draft Merger Guidelines (Sept. 2023), https://laweconcenter.org/wp-content/uploads/2023/09/ICLE-Draft-Merger-Guidelines-Comments-1.pdf [hereinafter ICLE Merger Guidelines Comments].
[5] Premerger Notification; Reporting and Waiting Period Requirements, 89 Fed. Reg. 89,216 (Nov. 12, 2024) (to be codified at 16 C.F.R. pts. 801, 803) [hereinafter Updated Form].
[6] Chamber of Commerce v. FTC, No. 6:25-cv-9 (E.D. Tex. Feb. 12, 2026).
[7] Chamber of Commerce v. FTC, No. 26-40094 (5th Cir. Mar. 19, 2026).
[8] 15 U.S.C. § 18a(d)(1).
[9] Id.
[10] Fed. Trade Comm’n, Hart-Scott-Rodino Annual Report: Fiscal Year 2024 app. B (2026), https://www.ftc.gov/system/files/ftc_gov/pdf/FY24-HSR-ANNUAL-REPORT-FOR-TRANSMITTAL-TO-CONGRESS.pdf.
[11] Id. app. A; Fed. Trade Comm’n & Dep’t of Just., Hart-Scott-Rodino Annual Report: Fiscal Year 2012 app. A (2013), https://www.ftc.gov/sites/default/files/documents/reports_annual/35th-report-fy2012/130430hsrreport_0.pdf; Fed. Trade Comm’n & Dep’t of Just., Hart-Scott-Rodino Annual Report: Fiscal Year 2022 app. A (2024), https://www.ftc.gov/system/files/ftc_gov/pdf/fy2022hsrreportcorrected.pdf.
[12] Pub. L. No. 117-328, § 3701, 136 Stat. 4459 (2022).
[13] Updated Form, 89 Fed. Reg. at 89,270.
[14] Id. at 89,373.
[15] Id. at 89,370; ICLE 2023 HSR Comments, supra note 2, at 11.
[16] ICLE 2023 HSR Comments, supra note 2, at 11.
[17] Updated Form, 89 Fed. Reg. at 89,372.
[18] ICLE 2023 HSR Comments, supra note 2, at 11-12.
[19] Chamber of Commerce, No. 6:25-cv-9.
[20] See Daniel J. Gilman, The FTC World Keeps on Turning, Truth on the Mkt. (Nov. 8, 2024), https://truthonthemarket.com/2024/11/08/the-ftc-world-keeps-on-turning.
[21] ICLE 2023 HSR Comments, supra note 2, at 13-14 (discussing Fed. Trade Comm’n, Non-HSR-Reported Transactions by Select Technology Platforms, 2010-2019: An FTC Study (2021), https://www.ftc.gov/system/files/documents/reports/non-hsr-reported-acquisitions-select-technology-platforms-2010-2019-ftc-study/p201201technologyplatformstudy2021.pdf).
[22] Ginger Zhe Jin, Mario Leccese & Liad Wagman, How Do Top Acquirers Compare in Technology Mergers? New Evidence from an S&P Taxonomy, 89 Int’l J. Indus. Org. 102973 (2023), https://www.sciencedirect.com/science/article/abs/pii/S0167718722000662.
[23] ICLE 2023 HSR Comments, supra note 2, at 7, 11 (“Some have even suggested this may be the purpose of the changes: ‘killing deals softly’ by making mergers more costly to deter at least some transactions, including some that agencies and courts ultimately would clear.”) (citing David C. Kully, Beth Evans Vessel & John R. Dierking, Killing Deals Softly: FTC Proposes 107-Hour Increase in Hart-Scott-Rodino Burden, Holland & Knight: Insights (June 28, 2023), https://www.hklaw.com/en/insights/publications/2023/06/killing-deals-softly-ftc-proposes-107-hour-increase).
[24] Francine Lafontaine & Margaret Slade, Vertical Integration and Firm Boundaries: The Evidence, 45 J. Econ. Literature 629, 677 (2007); see also James C. Cooper et al., Vertical Antitrust Policy as a Problem of Inference, 23 Int’l J. Indus. Org. 639 (2005).
[25] U.S. Dep’t of Just. & Fed. Trade Comm’n, Horizontal Merger Guidelines § 5.3, at 19 (Aug. 19, 2010), https://www.justice.gov/atr/file/810276/dl?inline (describing markets with an HHI below 1,500 as “unconcentrated”).
[26] Statement of the Federal Trade Commission, In the Matter of Dollar Tree, Inc. and Family Dollar Stores, Inc., FTC File No. 141-0207 (July 13, 2015), https://www.ftc.gov/system/files/documents/public_statements/681901/150714dollarstoresstatement.pdf.
[27] Thomas A. Lambert, Leave a Little GUPPI Alone: Why Commissioner Wright Is Right to Call for a Low-GUPPI Safe Harbor, Truth on the Mkt. (July 14, 2015), https://laweconcenter.org/resources/leave-a-little-guppi-alone-why-commissioner-wright-is-right-to-call-for-a-low-guppi-safe-harbor.
[28] Texas v. BlackRock, Inc., No. 6:24-cv-437, 2025 WL 2201071 (E.D. Tex. Aug. 1, 2025).
[29] José Azar, Martin C. Schmalz & Isabel Tecu, Anticompetitive Effects of Common Ownership, 73 J. Fin. 1513 (2018).
[30] See Kristopher Gerardi, Michelle Lowry & Carola Schenone, A Critical Review of the Common Ownership Literature, 16 Ann. Rev. Fin. Econ. 89 (2024).
[31] Thomas A. Lambert & Michael E. Sykuta, The Case for Doing Nothing about Institutional Investors’ Common Ownership of Small Stakes in Competing Firms, 13 Va. L. & Bus. Rev. 213 (2019).
[32] Letter from Elizabeth Warren & Richard Blumenthal, U.S. Senators, to Jensen Huang, President & Chief Exec. Officer, NVIDIA Corp. (Mar. 19, 2026), https://www.warren.senate.gov/imo/media/doc/letter_from_senators_warren_blumenthal_to_nvidia_on_groq_deal.pdf.
[33] Herbert Smith Freehills Kramer, When Is a Transaction That Avoids HSR a Transaction for Avoidance? (May 2026), https://www.hsfkramer.com/en_US/insights/2026-05/when-is-a-transaction-that-avoids-hsr-a-transaction-for-avoidance.
[34] Onyeka Aralu & Dirk Auer, Acquihires and Antitrust: When Buying the Team Isn’t Buying the Company, Truth on the Mkt. (Apr. 9, 2026), https://truthonthemarket.com/2026/04/09/acquihires-and-antitrust-when-buying-the-team-isnt-buying-the-company.
[35] Id.
[36] See, e.g., Brian C. Albrecht, Merger Divestitures: A Valuable Remedy for Competition Concerns, Int’l Ctr. for L. & Econ. (Oct. 2023), https://laweconcenter.org/wp-content/uploads/2023/10/tldr-Divestitures.pdf.
[37] See Eric Fruits & Kristian Stout, AI, Productivity, and Labor Markets: A Review of the Empirical Evidence, Int’l Ctr. for L. & Econ. (2026), https://laweconcenter.org/wp-content/uploads/2026/02/AI-Productivity-and-Labor.pdf.
TOTM California has seen the future of work, and Sacramento’s first instinct is to convene 14 task forces about it. Gov. Gavin Newsom signed Executive Order N-6-26 today, . . .
California has seen the future of work, and Sacramento’s first instinct is to convene 14 task forces about it.
Gov. Gavin Newsom signed Executive Order N-6-26 today, setting California’s workforce agencies in motion on directives involving research reviews, revisions to the state’s Worker Adjustment and Retraining Notification (WARN) Act, studies of new safety-net programs, a review of collective bargaining frameworks, an employment dashboard, and—near the end—a study of programs that would redirect artificial intelligence (AI) company revenues toward state-selected applications.
The animating concern is AI-driven labor disruption. Newsom’s order treats that disruption as sufficiently imminent to justify building new regulatory infrastructure across California’s workforce apparatus.
The empirical literature suggests that concern is running well ahead of the evidence. That includes a literature review published by the International Center for Law & Economics (ICLE) that I co-authored with Kristian Stout.
TL;DR TL;DR Background: Lawmakers have responded to widespread concerns about AI-related job displacement with various pieces of proposed legislation. Sens. Mark Warner and Josh Hawley’s AI-Related . . .
Background: Lawmakers have responded to widespread concerns about AI-related job displacement with various pieces of proposed legislation. Sens. Mark Warner and Josh Hawley’s AI-Related Job Impacts Clarity Act would require major companies to report AI-related layoffs to the U.S. Labor Department. New York State enacted rules barring state agencies from using AI in ways that would affect existing collective-bargaining agreements or displace workers. Most recently, California Gov. Gavin Newsom signed an executive order aimed at AI-driven job displacement.
But… The evidence so far does not support claims that AI will have dramatic employment effects. Studies find workers using AI tools complete tasks faster and produce better work. At the same time, there’s no evidence of widespread job losses, although younger workers entering some professions do face genuine pressures. Policymakers who treat AI as either a guaranteed growth engine or an imminent jobs catastrophe are relying on assumptions the evidence does not yet support.
Moreover… No one can say with confidence how large AI’s eventual economic effects will be. Economists’ estimates range from modest to enormous. That gap reflects genuine uncertainty, which is why locking in sweeping new regulations before the technology and its effects have stabilized carries serious risks of its own.
The clearest evidence comes from randomized studies in which researchers gave some workers access to AI tools and others none, then compared the results.
Massachusetts Institute of Technology economists found that professionals using ChatGPT to help with writing tasks finished 40% faster and produced work that independent reviewers rated 18% higher in quality. A separate study of a large company’s customer-service team found that workers with AI assistance resolved 15% more customer issues per hour, with the largest gains among the least-experienced workers. Software developers using GitHub’s AI coding assistant completed programming tasks 55.8% faster than those working without it. Professional translators saw their earnings per minute rise 16% when using more advanced AI models.
A clear pattern is that AI tends to help less-experienced workers the most. Economists call this “skill compression,” The gap between a beginner and a veteran narrows when both have access to the same AI tools. That finding cuts against the popular narrative that AI mainly benefits people who are already highly skilled or highly paid.
AI-related job losses don’t show up in employment records. Researchers at the Budget Lab at Yale examined industry-level data through August 2025 and found no meaningful relationship between a sector’s AI exposure and its layoffs. A rigorous study using Danish government employment records found essentially no effect on wages or hours worked across 11 occupations heavily exposed to AI tools like ChatGPT, even as adoption in those fields became widespread. A large survey from January 2026, covering nearly 36% of the U.S. workforce, found slightly higher wages in occupations exposed to generative AI and no detectable drop in job openings.
There are reports of task reallocation, as workers use AI to handle parts of their jobs so they can spend more time on other tasks. This may point to a need to help workers adapt and retrain, rather than restricting AI adoption to prevent job losses.
The aggregate numbers hide a more complicated story at the bottom of the career ladder. Stanford economist Erik Brynjolfsson and co-authors, analyzing payroll data from millions of workers, found that employees ages 22 to 25 in highly AI-exposed fields experienced roughly a 16% employment decline relative to trend after ChatGPT’s release. Workers in their 30s, 40s, and beyond were unaffected. A UK study found similar patterns: Companies using AI hired fewer junior staff, reduced entry-level pay, and shed lower-paid early-career positions, even as average compensation at those firms rose.
The reason is intuitive. AI is good at the structured, rule-based tasks traditionally assigned to entry-level workers: sorting and summarizing information, drafting initial versions of documents, and writing routine code. If AI can do those tasks, companies need fewer people to do them.
What remains uncertain is whether this is a lasting structural shift or a temporary disruption as the labor market adjusts. Prior waves of workplace technology eventually produced new types of entry-level work, even as they eliminated older ones. Whether that pattern will repeat—and how quickly—remains unresolved. Designing policy around permanent damage would be premature.
Predictions about AI’s effect on the overall economy vary widely. MIT economist Daron Acemoglu (2025) estimates that AI will raise overall economic productivity by less than 1% over the next decade. Goldman Sachs economists Joseph Briggs and Devesh Kodnani (2023) estimate a 7% increase in annual global output—roughly $7 trillion—over the same period. The Penn Wharton Budget Model lands between those poles.
These estimates are not sloppy. They differ because they rest on different assumptions about how many jobs AI can actually do, how quickly companies will reorganize around it, and how long it will take for productivity gains to show up in economic statistics.
Economic history offers a useful caution. Earlier productivity-enhancing technologies like electrification and computing often failed to register in aggregate data for years, or even decades, after adoption began. Companies had to restructure workflows, train workers, and redesign processes before the gains appeared in measurable output. The same delay is plausible here. That makes short-run economic data a poor basis for confident policy conclusions in either direction.
A recurring concern in the policy debate is that a handful of large technology companies control the AI systems everyone relies on—and that this concentration will squeeze out competition across the economy. That concern deserves scrutiny, but the evidence so far points in a more complicated direction.
A 2025 study of new-business formation found that ChatGPT’s arrival increased the rate at which first-time and low-resource entrepreneurs started companies, and that these new businesses operated with smaller founding teams than before. AI can substitute for some managerial and technical functions that once required hiring additional workers, lowering the cost of getting a business off the ground. The OECD similarly found that AI lowers the minimum size a business needs to compete in markets that previously required large, specialized teams.
The idea that incumbents can permanently lock out rivals by hoarding proprietary data, a so-called “data moat,” is weaker than it appears. The performance advantages large data sets provide tend to plateau. Once they do, competition shifts to algorithmic improvement and product quality—areas where smaller entrants can and do compete.
Policymakers should instead take a “strategic forbearance” approach: enforce existing law, modernize legacy rules written before AI existed, and resist layering prescriptive new mandates on top of a technology that is still changing rapidly.
For further analysis, see ICLE’s issue brief “AI, Productivity, and Labor Markets: A Review of the Empirical Evidence.”
TOTM The Federal Trade Commission’s (FTC) rulemaking machinery is humming again. Is it being tuned for optimal performance—or revved for another trip into the ditch? Most . . .
The Federal Trade Commission’s (FTC) rulemaking machinery is humming again. Is it being tuned for optimal performance—or revved for another trip into the ditch?
Most of the current action has to do with consumer protection. That’s par for the course, really. Apart from issuing the ill-fated noncompete rule, since vacated—comments here if anyone wants a recap—FTC rulemaking has been almost wholly on the consumer-protection side for as long as there’s been FTC rulemaking and a consumer-protection side to the agency. “Unfair or deceptive acts and practices,” or the FTC’s UDAP authority, were added to Section 5 in 1938 via the Wheeler-Lea Amendments, so it’s been a while.
For one thing, there’s no controversy over whether Congress has granted the commission substantive rulemaking authority over consumer-protection matters. It has—both a general authority under Section 18 of the FTC Act to prescribe rules against specific acts or practices that violate Section 5’s UDAP prong, and authority under various statutes that charge the FTC with adopting and enforcing particular restrictions addressing specific issues or practices. These include, among others, the Fairness to Contact Lens Consumers Act, the Children’s Online Privacy Protection Act, and the Fair Credit Reporting Act, later amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act, under which most—but not all—regulatory authority shifted to the Consumer Financial Protection Bureau.
But some competition-adjacent rulemaking remains under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act).
Rulemaking under the HSR Act is not exactly competition rulemaking. It doesn’t directly regulate which mergers are lawful and which are not. Still, it regulates the process by which mergers are screened and imposes affirmative obligations on firms contemplating mergers and acquisitions—at least for transactions above the filing threshold. Hence, these are competition-adjacent rules, and HSR rulemaking is competition-ish.
Regulatory Comments I. Introduction and Overview The International Center for Law & Economics (ICLE) submits these comments in response to the Federal Communications Commission’s (FCC) Public Notice seeking comment on the state...
The International Center for Law & Economics (ICLE) submits these comments in response to the Federal Communications Commission’s (FCC) Public Notice seeking comment on the state of competition in the communications marketplace.[1] ICLE is a nonprofit, nonpartisan research center that applies law & economics methodologies to public policy. Its work promotes sound economic analysis and consumer welfare, particularly in dynamic, technology-driven markets such as telecommunications.
Competition in communications markets has never been more dynamic. The traditional service categories reflected in the Communications Act no longer map neatly onto distinct technologies or consumer use cases. As the boundaries among fixed broadband, mobile broadband, satellite, and video services continue to erode, consumers have more options than ever. A household dissatisfied with cable broadband may switch to fiber, fixed wireless, mobile service, or Low Earth orbit (LEO) satellite.[2] That substitutability constrains firms’ ability to raise prices, reduce quality, or otherwise exercise market power without competitive consequences.[3]
But convergence does not eliminate the basic economics of broadband deployment. Broadband networks require substantial upfront investments, much of which are sunk once infrastructure is deployed.[4] Providers must therefore capture enough revenue over time to justify network expansion and upgrades.[5] Competition policy that focuses only on maximizing the number of firms in a market risks undermining the investment needed to support next-generation applications such as artificial intelligence (AI), augmented reality (AR), and virtual reality (VR). The FCC should instead promote sustainable competition by lowering deployment costs, streamlining permitting, and applying merger policy that weighs investment benefits alongside potential competitive harms, while avoiding conditions unrelated to genuine transaction-specific concerns.
The FCC should bring the same holistic approach to video markets.[6] Technological change has disrupted the assumptions underlying broadcast ownership rules, retransmission consent, content regulation, and sports-distribution policy.[7] Traditional broadcasters increasingly compete with streaming platforms, social media companies, and digital-video providers that face different and often lighter regulatory burdens. ICLE has long supported reforms to media-ownership and broadcast-content rules,[8] but those reforms should not proceed in isolation.[9] Legacy retransmission-consent rules can distort bargaining, raise costs for multichannel video programming distributors (MVPDs), and amplify broadcaster leverage in ways that may not benefit consumers. At the same time, the FCC should recognize the limits of its authority over non-broadcast streaming platforms and private sports-distribution agreements.[10]
As traditionally distinct services converge into a broader communications marketplace, the FCC should avoid regulatory frameworks that treat functionally competing technologies differently. The agency’s guiding principle should be to reduce regulatory distortions, preserve investment incentives, and allow competition—not legacy silos—to discipline communications markets.
At the outset, the FCC should evaluate competition in a holistic manner. The Public Notice seeks comment on competition across a variety of communications markets, but framing those markets as distinct silos—such as fixed, mobile, and satellite broadband—fails to account for the increasingly dynamic and converged nature of communications technologies.[11] As substitutability across technologies grows, traditional market boundaries become less economically meaningful.
The FCC should instead focus on the capabilities consumers seek and the range of technologies capable of providing them. That approach would better capture the competitive constraints firms actually face, allow the agency to assess market power more accurately, and improve its evaluation of how competition affects consumers, pricing, innovation, and network investment.
Communications technologies are increasingly substitutable, and that substitutability defines the markets in which firms actually compete.[12] Products are substitutes when consumers can switch between them in response to changes in price or quality. The easier that switch becomes, the greater the competitive pressure firms exert on one another.[13] Near-perfect substitutes create intense price competition because consumers will quickly defect if one provider raises prices or degrades service. Weaker substitutes impose less competitive discipline.
Substitutability is therefore central to market definition and the assessment of market power.[14] Regulators commonly use tools such as the SSNIP (small but significant non-transitory increase in price) test to determine whether enough consumers would switch to alternatives to render a price increase unprofitable.[15] Where consumers lack meaningful substitutes, a firm may be able to raise prices or reduce quality without losing substantial market share.
Substitutability analysis also helps identify the most likely sources of competitive disruption.[16] Incumbent firms are often displaced not by traditional rivals within the same market, but by substitute products emerging from adjacent technologies or industries.[17]
The Communications Act treats communications technologies as distinct silos, each with its own infrastructure, customer base, and competitive logic.[18] That framework made sense when technologies such as cable broadband, mobile service, home telephony, and dial-up internet served clearly differentiated functions. In 2005, for example, consumers did not meaningfully view a cellular data plan as a substitute for a home coaxial broadband connection. The products differed substantially in price, performance, and use case, and households often purchased them for entirely separate purposes.
Technological convergence has eroded those distinctions. As network capabilities increasingly overlap, consumers can now substitute among communications technologies in ways that were previously impractical. Consumers increasingly expect ubiquitous, high-quality connectivity, regardless of the underlying technology. As a result, the traditional boundaries between fixed and mobile broadband—and among fixed broadband technologies themselves—are breaking down and reshaping competition across communications markets.[19]
The most significant example is the collapse of the traditional distinction between fixed and mobile broadband. For years, mobile service complemented fixed home broadband by providing connectivity outside the home, while consumers relied on home Wi-Fi for bandwidth-intensive applications.[20] That relationship reflected the technical limitations of earlier mobile networks, including higher latency, data caps, and lower throughput, which made them poor substitutes for cable or fiber connections.
That is no longer true. Fifth-generation (5G) wireless networks increasingly provide functionally comparable services both inside and outside the home.[21] Fixed wireless access (FWA) delivers home broadband using cellular spectrum rather than a traditional last-mile wireline connection, and its performance increasingly competes directly with cable and fiber offerings. At the same time, wireline broadband providers have entered mobile markets through mobile virtual network operator (MVNO) agreements and direct wireless investment, allowing cable companies and other fixed providers to compete for customers who historically purchased mobile service only from traditional wireless carriers.[22] The once-clear fixed/mobile distinction now resembles a continuum rather than a binary divide.
Convergence is also reshaping competition within fixed broadband markets themselves. Cable operators historically operated in geographically franchised territories with limited overlap and relatively little competition from alternative technologies.[23] Fiber providers increasingly compete directly within those territories by deploying networks into areas previously served by cable monopolies or duopolies.[24] Low Earth orbit (LEO) satellite broadband has likewise emerged as a credible high-speed option in many rural and remote areas that previously lacked meaningful alternatives. Together, these developments have weakened traditional geography- and technology-based market boundaries.[25]
Market evidence reflects these changes. T-Mobile’s Home Internet service, launched at scale around 2021, now serves approximately 8.5 million fixed wireless customers.[26] Investor reports indicate that many of those customers view FWA as a direct replacement for traditional coaxial broadband service.[27] Cable providers correspondingly began reporting elevated subscriber churn as FWA adoption accelerated.[28] In response, cable operators expanded into wireless markets through MVNO offerings. Collectively, cable providers now account for roughly 45% of industry postpaid-phone net additions, while Charter and Comcast alone serve well more than 20 million mobile lines.[29] By bundling broadband and wireless service at aggressive prices, cable providers increasingly compete for revenue streams that historically belonged to wireless carriers.
These developments make silo-based market definitions increasingly difficult to sustain.[30] If a cable customer facing a price increase can credibly switch to FWA, fiber, or LEO satellite broadband, those technologies all belong within the same competitive framework. Increasing substitutability across communications technologies constrains providers’ pricing power more than traditional market definitions often recognize. As convergence accelerates, firms increasingly compete through integrated, multi-product offerings that combine broadband, wireless, and related services to retain customers and preserve margins in a more competitive environment.
The FCC’s competition framework seeks to “foster innovation and offer consumers reliable, meaningful selections in affordable services” by removing regulatory, economic, and operational barriers to entry and deployment.[31] In the past, however, the FCC has sometimes relied on flawed competitive analysis to justify broad regulatory interventions ostensibly designed to promote competition, most notably network-neutrality regulations.[32]
The traditional concern underlying those interventions is familiar: consumers in many broadband markets historically faced limited provider choice, allowing incumbents to extract monopoly or near-monopoly rents.[33] That concern retains some force in the most concentrated markets, particularly in certain rural and tribal areas. But the competitive dynamics discussed above increasingly constrain even dominant local providers. When cable operators know consumers can credibly switch to FWA, fiber, or other alternatives, their ability to raise prices or degrade quality without consequence narrows considerably.
Importantly, this competitive discipline operates through the threat of switching as much as through actual switching.[34] A cable provider need not lose millions of subscribers before adjusting its behavior. The credible possibility of subscriber loss can itself constrain pricing and service-quality decisions.[35] Even a relatively small group of price-sensitive consumers can discipline firm behavior across the broader customer base because providers generally cannot distinguish perfectly between consumers who would switch and those who would not.[36]
These competitive pressures increasingly shape market outcomes. Broadband providers operating in markets with meaningful cross-technology competition tend to raise prices more slowly, offer more aggressive promotional discounts, and invest more heavily in network quality than providers facing weaker competitive constraints.[37] Cable operators, for example, have moderated broadband price increases and accelerated network upgrades in response to growing competition from FWA and fiber providers.[38] Potential LEO satellite competition in rural markets has similarly pressured incumbent providers to improve service quality and pricing in areas where they previously faced limited competitive discipline.[39]
The rapid pace of broadband-network improvement reflects these competitive realities. Cable providers have accelerated Data Over Cable Service Interface Specification (DOCSIS) upgrades, fiber deployment has expanded beyond the most densely populated markets, and FWA performance has improved dramatically in speed and capacity. These developments are at least partly attributable to the growing availability of credible substitutes across technologies. Providers increasingly cannot afford to allow their networks to stagnate.[40] As a result, inflation-adjusted broadband prices have declined over time even as service quality and network performance have improved.[41]
The FCC should avoid policies aimed primarily at maximizing the number of firms in broadband markets. Competition is critical to improving service quality, expanding consumer choice, and constraining prices. But broadband markets are shaped by high fixed and sunk deployment costs, substantial economies of scale, and strong investment incentives that may support only a limited number of sustainable competitors.
These structural realities persist even as technological convergence expands consumer choice and intensifies competition among cable, fiber, fixed wireless, and satellite providers. The FCC should therefore focus less on firm counts and more on policies that promote sustainable competition, encourage long-term investment, reduce deployment costs, and support widespread, high-quality broadband deployment.
Broadband deployment requires extraordinarily high fixed and sunk costs[42] Building the physical infrastructure needed to deliver high-speed internet demands substantial upfront investment in trenching, conduit, equipment, and rights-of-way—all before a provider connects a single subscriber or earns any revenue. Most of these costs are sunk: once infrastructure is deployed, providers generally cannot recover those investments by redeploying assets elsewhere.[43] Industries with high sunk costs therefore tend toward greater concentration, because the scale of investment required for entry limits the number of firms that can profitably operate in a market.[44] Broadband infrastructure fits squarely within this framework. Estimates of per-home fiber-deployment costs range from roughly $700 to $2,700, depending on population density and geography.[45]
These cost structures also generate substantial economies of scale. Because fixed costs do not vary with the number of subscribers served, a provider’s average cost declines sharply as it adds customers. Where scale economies are significant, social welfare is often maximized by a finite—and sometimes small—number of firms. Entry beyond that level may not merely prove unprofitable; it can reduce welfare by duplicating infrastructure and dissipating the revenues needed to sustain efficient networks.[46] In industries with declining average costs, market equilibrium may therefore produce either too few or too many entrants relative to the socially optimal number, depending on the balance between productive efficiencies and the “business-stealing” effect.[47]
Providers must also price broadband services to recover these substantial upfront investments over time. That cost recovery is essential to continued investment, maintenance, and network upgrades. Decisions about additional entry and service quality similarly depend on whether providers can earn sufficient returns across census blocks to justify deployment costs. As a result, the profitability of incremental deployment is highly sensitive to local demand density and competitive conditions. Where revenues are divided among multiple providers, the return on infrastructure investment may fall below the threshold necessary to justify deployment at all. These economic realities historically left many parts of the country—particularly lower-density areas—with only one or two wireline broadband providers, because the available subscriber base could not support cost recovery for additional networks.[48]
Technological convergence can expand consumer choice by allowing consumers to substitute among previously distinct products and services. But convergence does not eliminate the underlying economic constraints that shape broadband markets. Providers that invested on the assumption of a particular market share may suddenly find that new forms of competition undermine the returns needed to justify those investments. Counterintuitively, this temporary increase in competitive pressure does not necessarily increase the number of firms that can sustainably operate in the market.
The reason is straightforward: the cost structure of broadband deployment remains largely unchanged. The high fixed and sunk costs associated with building and maintaining networks do not disappear when new technologies emerge. In many cases, those costs reappear in each successive generation of infrastructure. As a result, the concentration floor imposed by sunk costs tends to persist even as technologies evolve. Convergence therefore reshuffles which firms compete more often than it changes how many firms can compete sustainably.[49]
Empirical evidence supports this conclusion. Studies of broadband entry find that the incremental competitive benefit of a fourth provider is modest at best, suggesting that broadband markets often reach competitive equilibrium well before they resemble atomistic competition.[50] Too little competition can weaken incentives to improve service and invest in network upgrades, although dominant firms may sometimes invest above competitive levels.[51] At the same time, too much fragmentation can reduce per-firm revenues below the level necessary to sustain the substantial capital expenditures required to maintain and upgrade broadband infrastructure.
These dynamics are especially important for next-generation deployment. A provider considering investment in fiber-to-the-home (FTTH), 6G wireless infrastructure, or other advanced technologies must weigh the expected return against the substantial upfront cost. In markets with intense competition and thin margins, the expected return may not justify deployment, particularly in lower-density or uncertain markets. The profitability of incremental broadband deployment is therefore highly sensitive to competitive conditions. In industries with declining average costs, unrestricted entry can deter socially valuable investment because no individual firm can capture enough of the resulting gains to justify undertaking the investment in the first place.[52]
The FCC’s objective should not be to maximize the number of competitors in broadband markets. Rather, it should pursue policies that ensure competition disciplines providers, while preserving the returns necessary to sustain long-term investment in broadband infrastructure.
Broadband connectivity creates enormous social value that extends far beyond what providers recover through monthly subscription fees.[53] High-speed internet access enables remote work, telemedicine, online education, civic participation, and e-commerce.[54] These services generate substantial spillover benefits for employers, healthcare systems, schools, local economies, and consumers that broadband providers cannot fully monetize. As a result, the social value of broadband deployment systematically exceeds the private return available to network operators.[55]
That gap between social value and private return becomes even more important as technological convergence intensifies competition. Cable, fiber, fixed wireless, and satellite providers increasingly offer functionally comparable services, placing greater pressure on providers’ margins and reducing the per-subscriber revenues that ultimately fund network investment. In moderately concentrated markets, new entry can spur firms to invest and improve service quality. At some point, however, additional fragmentation can undermine investment incentives by reducing expected returns below sustainable levels. In markets where consumers can choose among multiple broadband technologies, each additional provider faces a smaller and less predictable share of the available revenue pool.
One way to mitigate this problem is to reduce deployment costs.[56] Lower costs reduce the subscriber base necessary to earn an adequate return, allowing more firms to compete sustainably. Permitting reform offers one of the clearest avenues for doing so.[57] Broadband deployment requires providers to navigate a fragmented and often unpredictable web of federal, state, and local approvals. Rights-of-way negotiations, pole-attachment disputes, zoning approvals, environmental review, and historic-preservation requirements can each add substantial delays and costs to deployment projects.[58] These delays compound the burden of sunk-cost investment by extending the period between capital outlay and revenue generation, effectively increasing deployment risk. In lower-density or economically marginal areas, those added costs can determine whether deployment proceeds at all. Streamlining approval processes would not eliminate the underlying economics of broadband deployment, but it would lower the threshold necessary to justify investment.
The FCC has already adopted reforms intended to streamline deployment. Most notably, the agency limited local governments’ ability to impose excessive rights-of-way fees and accelerated review timelines for small-cell deployment under Section 332 of the Communications Act.[59] More remains to be done, particularly through congressional action, to ensure that permitting and zoning requirements do not impose costs that lack offsetting public benefits.[60] If the FCC seeks to encourage additional broadband competition while preserving the relatively low prices consumers currently enjoy, it should continue pursuing policies that make deployment faster, less costly, and more predictable.
The FCC should likewise account for deployment incentives in merger policy. Regulators understandably focus on potential harms when broadband or wireless providers propose to merge, including the risks of higher prices, reduced output, or diminished competitive pressure. Those concerns are legitimate and warrant careful scrutiny. But merger review in communications markets should also account for the substantial procompetitive benefits that consolidation can generate in capital-intensive network industries.
Mergers can improve investment incentives by increasing scale, stabilizing revenues, and strengthening firms’ financial capacity.[61] Greater scale can reduce per-unit costs by eliminating duplicative infrastructure, administrative overhead, and network operations.[62] In industries where high fixed costs and uncertain revenues constrain deployment, these efficiencies can materially improve firms’ willingness and ability to invest in network expansion and upgrades.[63] Improved networks, in turn, place competitive pressure on rivals to invest as well, or risk losing subscribers and revenue.
Those investment effects can extend beyond broadband markets themselves. More ubiquitous high-speed connectivity supports downstream innovation by enabling new applications, services, and business models that depend on robust broadband infrastructure. Improved deployment and network quality therefore generate dynamic competitive benefits that static market-concentration metrics often fail to capture.
These realities should shape how the FCC and the Department of Justice (DOJ) evaluate mergers in broadband and wireless markets. Merger review should account not only for potential anticompetitive harms, but also for how transactions affect investment incentives within the economic structure of communications markets. Conditions imposed on transactions should remain narrowly tailored to address demonstrated, transaction-specific harms, rather than serving as vehicles for unrelated policy objectives.[64] Overbroad conditions impose real costs on merged firms, dilute the efficiencies that motivate consolidation, and may deter transactions that would otherwise generate substantial consumer benefits and expand high-quality broadband deployment.
Technological change is transforming not only broadband markets, but video markets as well. Broadcasters, cable providers, streaming platforms, social media companies, and other digital distributors increasingly compete for the same audiences, advertising revenues, and programming rights. Yet many legacy regulations continue to impose asymmetric burdens on certain technologies while leaving newer competitors largely unregulated.
As the FCC considers reforms to broadcast ownership rules, retransmission consent, content regulation, and sports-distribution policy, it should focus on reducing regulatory distortions that prevent firms from competing on equal terms. The FCC should seek to modernize outdated rules, narrow unnecessary content-based regulation, and avoid expanding agency authority into markets where Congress has not clearly authorized federal oversight.
The video marketplace that broadcast-ownership rules were designed to govern no longer exists. Local television stations, once presumed dominant within geographically defined markets, now compete against streaming platforms, social media companies, and digital news outlets that face no comparable restrictions on scale or reach.[65] The FCC’s national ownership cap rests on assumptions about spectrum scarcity and broadcaster market power that technological change has largely overtaken.[66]
Streaming platforms can effectively reach the entire national market, while broadcast ownership rules still limit a parent company’s reach to 39% of U.S. households. Yet broadcasters increasingly compete with those national platforms for the same audiences and advertising revenues. Modern broadcasters therefore face competitors whose scale far exceeds anything broadcasters may legally achieve under existing ownership restrictions. In many markets, broadcasters no longer possess the degree of market power the rules originally assumed.
These competitive pressures are reshaping the economics of local broadcasting in ways that undermine the traditional rationale for ownership restrictions. The decline of syndicated daytime programming has eroded the cross-subsidies that historically funded local-news operations, forcing stations into divergent strategies for survival.[67] Larger or better-capitalized stations increasingly emphasize local content as a competitive differentiator. Smaller or financially weaker stations, by contrast, often reduce or eliminate local production entirely, replacing locally produced programming with lower-cost centralized content.[68]
Under these conditions, the greatest threat to localism is not consolidation itself, but the financial deterioration of stations constrained by outdated ownership rules. Consolidation may instead preserve local journalism by generating economies of scale that make local-news production financially sustainable through shared investigative teams, weather infrastructure, production facilities, and administrative operations.
At the same time, any ownership reform must account for the retransmission-consent framework established by the Cable Television Consumer Protection and Competition Act of 1992.[69] Under that regime, broadcasters choose every three years between must-carry status and retransmission consent, which requires MVPDs to negotiate carriage rights—typically in exchange for substantial fees.[70] Retransmission revenues now approach the scale of advertising revenues and play a central role in funding broadcast operations and local news production.
But retransmission consent was designed to address a cable-distribution bottleneck that has weakened substantially in an era where broadcasters can distribute programming directly through websites, applications, and streaming platforms.[71] The result is a regulatory asymmetry: broadcasters retain regulatory negotiating advantages unavailable to most other content creators. Consolidation can magnify that leverage, potentially increasing carriage fees and encouraging distributors to drop smaller independent networks to control programming costs.[72]
This interaction between ownership restrictions and retransmission consent makes piecemeal reform problematic. Relaxing ownership caps without reforming retransmission consent could strengthen broadcasters’ bargaining leverage over MVPDs without necessarily producing offsetting consumer benefits such as lower prices, improved programming, or more reliable service. Reforming ownership rules alone would therefore risk amplifying distortions already embedded in the retransmission framework while leaving broadcasters’ regulatory advantages over streaming competitors largely intact.
The FCC should instead pursue comprehensive reform that addresses ownership restrictions and retransmission consent together.[73] The most coherent long-term solution would phase out retransmission consent entirely and treat broadcasters like other content creators, relying on copyright law and voluntary commercial agreements to govern distribution relationships.[74] Doing so would reduce the regulatory asymmetries that currently advantage broadcasters relative to streaming competitors and independent networks.
If full repeal proves politically infeasible, the FCC should at minimum pair ownership deregulation with meaningful retransmission reform. Potential reforms could include stronger good-faith bargaining requirements, limits on automatic fee-escalation clauses tied to acquisitions, and arbitration mechanisms designed to reduce consumer harm during blackout disputes involving high-value programming.[75] The FCC should seek reforms that reduce multiple distortions simultaneously, rather than replacing one set of market imbalances with another.
The FCC occupies a uniquely powerful position in the media landscape because its authority over broadcast licensees extends well beyond technical and engineering matters into the content broadcasters air. Unlike regulators overseeing cable networks, streaming platforms, newspapers, or social media companies, the FCC may fine broadcasters, condition license renewals, or revoke licenses under the Communications Act’s broad “public interest, convenience, and necessity” standard.[76] That authority gives the FCC leverage over broadcasters that has few parallels elsewhere in media regulation.[77]
As a result, even informal regulatory pressure can significantly influence broadcasters’ editorial decisions. When FCC officials publicly suggest that particular programming choices may create regulatory risk, broadcasters face strong incentives to alter their conduct regardless of whether any formal enforcement action is ever initiated—or would survive judicial review.[78] This practice, commonly known as jawboning, allows government officials to shape private editorial decisions through implicit or explicit threats, while avoiding the procedural and constitutional scrutiny associated with formal enforcement or rulemaking.
The constitutional justification for this content-based regulatory authority rests largely on the Supreme Court’s decisions in Red Lion Broadcasting Co. v. FCC and FCC v. Pacifica Foundation, which relied heavily on the theory of spectrum scarcity.[79] But technological developments have substantially undermined the factual assumptions underlying those decisions.[80] Broadcasters now compete in an intensely crowded media environment alongside cable networks, streaming platforms, podcasts, social media companies, and countless online-content providers. Yet broadcasters alone remain uniquely vulnerable to government pressure over lawful programming decisions because they transmit content over spectrum licensed by the FCC.
That asymmetry carries significant competitive consequences. Broadcast stations and affiliate groups must weigh editorial decisions not only against audience preferences, advertiser relationships, and market competition, but also against the potential reaction of an agency empowered to deny license renewals or initiate costly proceedings.[81] This additional layer of regulatory risk distorts editorial incentives in ways unrelated to consumer demand or effective competition in modern media markets. So long as the FCC retains broad discretionary authority over broadcast licensees under the public-interest standard, officials in any administration may face incentives to reward favored speech or pressure disfavored viewpoints.
The FCC cannot eliminate its statutory obligation to regulate broadcasters in the public interest, and its authority will likely persist so long as Red Lion and Pacifica remain binding precedent.[82] But the agency can narrow the scope of its content-based authority by repealing unnecessary speech-related regulations and constraining the use of those that Congress expressly requires. Policies such as the FCC’s news-distortion doctrine risk extending agency authority into areas involving lawful editorial judgment and protected speech. Future administrations could use such policies more aggressively or selectively.
The FCC should therefore reduce or eliminate content-based broadcast regulations wherever possible. Doing so would better align broadcast regulation with modern constitutional and technological realities while allowing broadcasters to compete more effectively on the merits against streaming, cable, and other digital-video platforms.
Recently, consumers and advocates have raised concerns that an increasing number of live sporting events are moving behind paywalls.[83] Much of the legal debate centers on the National Football League’s (NFL) antitrust exemption under the Sports Broadcasting Act of 1961, which allows the league to negotiate national broadcast agreements collectively.[84] Because the exemption applies only to broadcast television rights, some have questioned whether league-wide streaming agreements fall outside its protection. But the core policy concern is not fundamentally about antitrust law. Rather, it is whether consumers are losing reasonable access to live sports as distribution shifts toward subscription-based platforms. As Chairman Brendan Carr observed, “there is a point at which you sort of tip the scale, and they’ve put too many games behind aa paywall, and then that whole exemption collapses.”[85]
The marketplace underlying this debate has changed dramatically since the relevant legal frameworks were enacted. Consumers once depended on a relatively small number of local broadcast stations to access entertainment and live sports programming. Technological innovation has since transformed the distribution landscape. Cable, satellite, fiber, and streaming platforms now provide leagues and content producers with numerous pathways to reach viewers, while consumers increasingly prefer on-demand, device-agnostic viewing experiences.
Live sports remain uniquely valuable because audiences strongly prefer real-time viewing and the shared experience surrounding live events.[86] Even there, however, the distribution ecosystem has diversified substantially. Streaming platforms now compete directly with broadcasters and cable networks for sports rights in order to attract and retain subscribers.[87] Netflix and Amazon have carried NFL games on Christmas Day, Amazon holds exclusive rights to Thursday Night Football, NBCUniversal streams Premier League matches on Peacock, and Apple TV distributes Major League Soccer.[88] The market for sports distribution has therefore expanded rather than contracted.
That competition has generated substantial consumer benefits. Many consumers actively prefer streaming services because they offer greater flexibility, portability, and device compatibility.[89] Consumers can watch games from virtually any location without relying on a traditional television set or cable subscription. Streaming services also often provide lower-cost or more targeted viewing options. Consumers interested primarily in one league or sport may purchase a single subscription rather than a large cable bundle containing unwanted channels.
At the same time, MVPDs have adapted to this competitive pressure by integrating streaming services such as Disney+, Peacock, and ESPN into broader distribution packages. Those bundles often provide lower-latency video quality and simpler access than standalone streaming subscriptions.[90] Competition from streaming services has therefore forced traditional distributors to innovate, improve pricing, and enhance service quality, benefiting consumers regardless of which platform they ultimately choose.
Critics nevertheless argue that consumers are losing access to games they previously watched for free.[91] That concern is often overstated. Much of the content now distributed through streaming platforms was never previously available through free over-the-air television. The NFL’s expansion into Thursday-night games, Christmas Day programming, and international broadcasts created new inventory that historically would not have aired on local broadcast television at all.[92] Before streaming platforms acquired rights to those games, most consumers simply could not watch them.
Other leagues have followed similar models. The National Basketball Association’s (NBA) League Pass service, for example, gives fans access to out-of-market games that were historically unavailable outside a team’s local market.[93] Many streaming agreements also preserve local broadcast access for in-market consumers. The NFL, for example, continues to air 100% of games on broadcast television within participating teams’ local markets.[94] In practice, many streaming arrangements expand consumer access by making additional games available that otherwise would not have been distributed broadly.
Whatever the merits of broader policy concerns surrounding sports-fragmentation and paywalls, the FCC’s legal authority to regulate these arrangements is extremely limited.[95] The Communications Act grants the FCC authority over broadcast licensees operating under the public-interest standard, but that authority does not extend generally to streaming platforms, which operate outside the FCC’s licensing framework. Efforts to use the public-interest standard to dictate how leagues or networks allocate content between broadcast and streaming platforms would represent a substantial expansion of agency authority and would likely trigger major-questions concerns.[96]
The FCC might alternatively attempt to rely on ancillary jurisdiction under Title I of the Communications Act.[97] Courts have previously allowed the FCC to regulate certain communications technologies where doing so was ancillary to specifically delegated statutory authority.[98] In United States v. Southwestern Cable Co., for example, the Supreme Court upheld FCC regulation of cable systems because those systems directly retransmitted broadcast television signals already subject to FCC oversight.[99]
But ancillary authority remains limited and closely tied to express statutory powers.[100] In Comcast Corp. v. FCC, the D.C. Circuit rejected the FCC’s attempt to regulate broadband-network-management practices through broad assertions of ancillary jurisdiction.[101] The court emphasized that ancillary authority must remain tethered to specifically delegated statutory responsibilities and that general policy statements alone cannot create regulatory authority.[102] Without such limits, the court warned, the FCC’s jurisdiction could become effectively unbounded.[103]
That reasoning strongly constrains any effort to regulate streaming platforms’ sports-distribution agreements. Streaming services are not broadcast licensees, nor are they merely retransmitting local broadcast signals in the manner contemplated in Southwestern Cable.[104] Instead, they distribute programming through private contractual arrangements that the Communications Act nowhere authorizes the FCC to supervise, condition, or override.
Recent Supreme Court decisions further narrow the FCC’s ability to rely on expansive ancillary-authority theories. In Loper Bright Enterprises v. Raimondo,[105] the Court overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc.,[106] ending the longstanding practice of deferring to agencies’ reasonable interpretations of ambiguous statutes. Courts will now independently evaluate whether the Communications Act actually authorizes the FCC’s asserted authority.
Similarly, West Virginia v. EPA reinforced the major questions doctrine, which requires clear congressional authorization before agencies may regulate issues of major economic or political significance.[107] Nothing in the Communications Act clearly authorizes the FCC to regulate how streaming platforms, sports leagues, or other non-broadcast entities structure programming or distribution agreements.
Taken together, Loper Bright and West Virginia v. EPA make any attempt to regulate sports-streaming arrangements through ancillary jurisdiction highly vulnerable to judicial challenge. Courts are unlikely to permit the FCC to infer sweeping authority over streaming platforms and private-content agreements from broad statutory language enacted long before modern digital-video markets existed.
As the FCC evaluates the state of communications markets, it should ground any regulatory intervention in today’s economic and technological realities, not in frameworks inherited from an earlier era. Communications markets are increasingly dynamic, competitive across technological boundaries, and capable of generating substantial consumer benefits through market forces. Fixed and mobile broadband services are increasingly substitutable. Satellite, fiber, fixed wireless, and cable providers increasingly compete for the same subscribers. Streaming and broadcast video compete for the same audiences, advertising dollars, and programming rights.
These developments make outdated analytical frameworks increasingly unreliable. Market definitions built around discrete service silos, assumptions of persistent incumbent dominance, and static measures of competition often fail to capture the constraints firms actually face. Regulatory interventions based on those assumptions risk distorting markets that are already delivering lower prices, improved quality, expanded access, and greater consumer choice.
For broadband, the FCC should account for how market structure affects investment. Policies that seek to maximize the number of competitors without considering deployment economics may sacrifice the long-run network quality and coverage consumers need in pursuit of a static competition metric. The FCC’s goal should be to encourage market conditions that promote private investment while narrowing the gap between what firms can profitably deploy and what society values. That means reducing deployment costs through permitting reform, weighing investment benefits in merger review, and avoiding mandates or conditions that compress the margins needed to justify next-generation network investment.
The FCC should bring the same discipline to video markets. Broadcast ownership rules designed for an earlier media environment, retransmission-consent rules that create regulatory bargaining advantages, and broadcast-content regulations with no analog in cable, streaming, or digital media impose real costs on competition and investment. Reform should be comprehensive and evidence-based, reducing regulatory distortions across the system rather than fixing one problem while preserving adjacent distortions. Where the FCC lacks legal authority—particularly over non-broadcast streaming platforms and private content-distribution agreements—it should say so clearly and leave those policy choices to Congress, rather than stretching the Communications Act beyond what the major questions doctrine and Loper Bright permit.
Ultimately, the FCC’s most important contribution to consumer welfare is not any single intervention, but the quality and consistency of the analytical framework it applies across proceedings. Communications markets work best when policy is predictable, rewards investment, applies equivalent rules to equivalent competitors regardless of technology, and resists using regulatory leverage as a substitute for competitive discipline. ICLE urges the FCC to keep that framework at the center of its work in this proceeding.
[1] The State of Competition in the Communications Marketplace, GN Docket No. 26-78, Public Notice, DA 26-333 (Apr. 6, 2026), https://docs.fcc.gov/public/attachments/DA-26-333A1.pdf [hereinafter Public Notice].
[2] See generally Geoffrey A. Manne, Kristian Stout & Ben Sperry, A Dynamic Analysis of Broadband Competition: What Concentration Numbers Fail to Capture, Int’l Ctr. for L. & Econ. (June 2021), https://laweconcenter.org/wp-content/uploads/2021/06/A-Dynamic-Analysis-of-Broadband-Competition.pdf; Eric Fruits, Geoffrey A. Manne, Ben Sperry & Kristian Stout, Dynamic Competition in Broadband Markets: A 2024 Update, Int’l Ctr. for L. & Econ. (June 4, 2024), https://laweconcenter.org/wp-content/uploads/2024/06/Broadband-Competition-2024-Update.pdf.
[3] See Comments of the International Center for Law & Economics, Safeguarding and Securing the Open Internet, WC Docket No. 23-320, at 19 (Dec. 14, 2023), https://laweconcenter.org/resources/icle-comments-to-fcc-on-title-ii-nprm [hereinafter ICLE Title II Comments].
[4] Eric Fruits, Kristian Stout & Geoffrey A. Manne, The Economics of Broadband Data Caps and Usage-Based Pricing, Int’l Ctr. for L. & Econ. (Oct. 23, 2024), https://laweconcenter.org/resources/the-economics-of-broadband-data-caps-and-usage-based-pricing (“Indeed, these practices may help internet service providers (ISPs) to better manage network congestion, ensure fair allocation of network resources, and provide a means for ISPs to recover the large, fixed costs associated with building, maintaining, and upgrading broadband infrastructure—in part, to enable deployment of more capacity for increased data usage”).
[5] See Manne et al., supra note 2; Fruits et al., supra note 2.
[6] Eric Fruits, Geoffrey A. Manne & Kristian Stout, Broadcast Ownership, Retransmission, and the Case for Comprehensive Reform, Int’l Ctr. for L. & Econ. (Nov. 18, 2025), https://laweconcenter.org/resources/broadcast-ownership-retransmission-and-the-case-for-comprehensive-reform.
[7] Comments of the International Center for Law & Economics, 2022 Quadrennial Regulatory Review—Review of the FCC’s Broadcast Ownership Rules, MB Docket No. 22-459 (Dec. 17, 2025), https://laweconcenter.org/wp-content/uploads/2025/12/FCC-Broadcast-Ownership-NPRM-2025.pdf [hereinafter ICLE Broadcast Ownership Comments].
[8] Id.
[9] Fruits et al., supra note 6.
[10] Comments of the International Center for Law & Economics, Sports Broadcasting Practices and Marketplace Developments, MB Docket No. 26-45 (Mar. 27, 2026), https://laweconcenter.org/resources/icle-comments-to-the-fcc-on-sports-broadcasting-practices-and-marketplace-developments [hereinafter ICLE Sports Broadcasting Comments].
[11] Public Notice, supra note 1.
[12] United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 393 (1956) (“[W]here there are market alternatives that buyers may readily use for their purposes, illegal monopoly does not exist merely because the product said to be monopolized differs from others.”); Herbert Hovenkamp, Antitrust Market Definition: The Hypothetical Monopolist and Brown Shoe, U. Pa. Inst. L. & Econ. Rsch. Paper No. 24-13 (2024), https://ssrn.com/abstract=4746039.
[13] See Gregory J. Werden, Demand Elasticities in Antitrust Analysis, 66 Antitrust L.J. 363 (1998), https://gai.gmu.edu/wp-content/uploads/sites/27/2021/05/Session-5_Werden-Demand-Elasticities.pdf.
[14] Hovenkamp, supra note 12.
[15] U.S. Dep’t of Justice & Fed. Trade Comm’n, Merger Guidelines (Dec. 18, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/2023_merger_guidelines_final_12.18.2023.pdf.
[16] J. Gregory Sidak & David J. Teece, Dynamic Competition in Antitrust Law, 5 J. Competition L. & Econ. 581, 614 (2009), https://academic.oup.com/jcle/article/5/4/581/755200 (“In dynamic contexts, potential competitors can have much greater importance. What today appears merely to be a potential competitor can obliterate incumbents tomorrow in acts of Schumpeterian creative destruction. To exclude such a competitor from the boundaries of the market would clearly be a mistake”).
[17] Clayton M. Christensen, The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail (Harvard Bus. Sch. Press 1997).
[18] Communications Act of 1934, Pub. L. No. 73-416, 48 Stat. 1064 (codified as amended at 47 U.S.C. §§ 151–621); see also Comments of the International Center for Law & Economics & TechFreedom, Communications Act for the 21st Century, at 2-3 (June 2014), https://laweconcenter.org/images/articles/icletfcommsactcomments.pdf.
[19] Fruits et al., supra note 2.
[20] ICLE Title II Comments, supra note 3.
[21] Fruits et al., supra note 2.
[22] See Eric Fruits, Ben Sperry & Kristian Stout, The Competitive Effects of the Proposed Charter/Cox Transaction, Int’l Ctr. for L. & Econ. (Sept. 17, 2025), https://www.laweconcenter.org/resources/the-competitive-effects-of-the-proposed-charter-cox-transaction.
[23] Eric Fruits & Gus Hurwitz, Title II: The Model T of Broadband Regulation, Int’l Ctr. for L. & Econ. (June 2024), https://laweconcenter.org/resources/title-ii-the-model-t-of-broadband-regulation.
[24] See Fruits et al., supra note 22.
[25] See Fruits et al., supra note 2.
[26] Michelle Donegan, T-Mobile Says FWA Is Here to Stay and Eyes More Fiber M&A, Light Reading (Feb. 11, 2026), https://www.lightreading.com/5g/t-mobile-says-fwa-is-here-to-stay-and-eyes-more-fiber-m-a.
[27] Mike Dano, Here’s What’s Next for T-Mobile’s FWA Business, Light Reading (Sept. 22, 2022), https://www.lightreading.com/fixed-wireless-access/here-s-what-s-next-for-t-mobile-s-fwa.
[28] Jeff Heynen, 5G Fixed Wireless and the Threat to Cable’s US Dominance, Dell’Oro Grp. (July 31, 2023), https://www.delloro.com/5g-fixed-wireless-and-the-threat-to-cables-us-dominance.
[29] XJ Wang, The Great Convergence: The State of U.S. Wireless Competition, Light Reading (Feb. 6, 2026), https://www.lightreading.com/wireless/the-great-convergence-the-state-of-u-s-wireless-competition.
[30] See Manne et al., supra note 2.
[31] Competition, Fed. Commc’ns Comm’n, https://www.fcc.gov/general/competition (last visited May 18, 2026).
[32] See, e.g., Comments of the International Center for Law & Economics, Restoring Internet Freedom, WC Docket No. 17-108 (July 17, 2017), https://laweconcenter.org/wp-content/uploads/2017/09/icle-comments_policy_rif_nprm-final.pdf.
[33] See generally Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, 2024 Section 706 Report, GN Docket No. 22-270, 39 FCC Rcd. 3247 (2024) [hereinafter 2024 Section 706 Report].
[34] Manne et al., supra note 2, at 9.
[35] Id. at 11.
[36] Steven Salop & Joseph E. Stiglitz, Bargains and Ripoffs: A Model of Monopolistically Competitive Price Dispersion, 44 Rev. Econ. Stud. 493, 494 (1977) (“Those agents who become informed give an external economy to the uninformed; the weight of their search keeps prices lower. In fact, if there are enough informed agents, the market price will settle down to the perfectly competitive price”).
[37] See Yongmin Chen & Scott J. Savage, The Effects of Competition on the Price for Cable Modem Internet Access, 93 Rev. Econ. & Stat. 201 (2011) (finding that, in markets with low preference diversity, competition reduces prices).
[38] Sean Buckley, Comcast Maintains Focus on DOCSIS 4.0, Wireless Amidst Q4 Broadband Subscriber Loss, Lightwave Online (Jan. 30, 2024), https://www.lightwaveonline.com/home/article/55026285/comcast-maintains-focus-on-docsis-40-wireless-amidst-q4-broadband-subscriber-loss (quoting Comcast Cable CEO David Watson: “We are focused on what we can control…. That means segmenting our customer base by offering our customers the right price, including value options at different speed tiers and driving ARPU ahead in an environment where broadband subscriber growth remains challenged. And we’re doing this in the context of aggressive network upgrades and expansion”).
[39] See generally Ellis Scherer & Joe Kane, Broadband Convergence Is Creating More Competition, Info. Tech. & Innovation Found. (July 7, 2025), https://itif.org/publications/2025/07/07/broadband-convergence-is-creating-more-competition; see also LEO Policy Working Group, Low Earth Orbit Satellites: Policies to Promote Spectrum Sharing, Foster Competition, and Close Digital Divides (Oct. 2025), https://laweconcenter.org/wp-content/uploads/2025/10/Low_Earth_Orbit_Satellites_FINAL.pdf.
[40] See Fruits et al., supra note 2.
[41] Id. at 11.
[42] See Fruits et al., supra note 2; Int’l Ctr. for L. & Econ., Guiding Principles & Legislative Checklist for Broadband Subsidies (2022), https://laweconcenter.org/wp-content/uploads/2022/06/ICLE-BEAD-Checklist.pdf.
[43] Jerry A. Hausman, The Effect of Sunk Costs in Telecommunications Regulation, in Economic Policy in the Information Economy 2 (2002) (“the essence of most [telecommunications] investments is an extremely high proportion of sunk costs”); see also Eric Fruits & Geoffrey A. Manne, Quack Attack: De Facto Rate Regulation in Telecommunications, Int’l Ctr. for L. & Econ. (Mar. 30, 2023), https://laweconcenter.org/wp-content/uploads/2023/03/De-Facto-Rate-Reg-Final-1.pdf.
[44] Daniel R. Shiman, The Intuition Behind Sutton’s Theory of Endogenous Sunk Costs (Jan. 15, 2008), https://ssrn.com/abstract=1018804; John Sutton, Sunk Costs and Market Structure: Price Competition, Advertising, and the Evolution of Concentration (MIT Press 1991).
[45] Fiber Broadband Ass’n & Cartesian, Fiber Deployment Annual Report 2023 13 (Jan. 2024), https://fiberbroadband.org/wp-content/uploads/2024/01/Fiber-Deployment-Annual-Report-2023_FBA-and-Cartesian.pdf.
[46] Rabah Amir, Market Structure, Scale Economies and Industry Performance, CORE Discussion Paper No. 2003/65, at 4 (2003), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=995721 (“More precisely, we argue that the slightest amount of scale economies leads to welfare being decreasing at sufficiently high numbers of firms”).
[47] N. Gregory Mankiw & Michael D. Whinston, Free Entry and Social Inefficiency, 17 RAND J. Econ. 48 (1986).
[48] Scott Wallsten & Colleen Mallahan, Residential Broadband Competition in the United States (2013), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1684236; see also Int’l Ctr. for L. & Econ., supra note 42; Fruits et al., supra note 2.
[49] Shiman, supra note 44.
[50] Comments of the International Center for Law and Economics in Opposition to Petitions to Deny, Applications of T-Mobile US, Inc. and Sprint Corporation for Consent to Transfer Control of Licenses and Authorizations, WT Docket No. 18-197 (Sept. 17, 2018), https://laweconcenter.org/wp-content/uploads/2018/09/ICLE-Comments-TMobile-Sprint-Merger.pdf; see also Mo Xiao & Peter F. Orazem, Does the Fourth Entrant Make Any Difference?: Entry and Competition in the Early U.S. Broadband Market, 29 Int’l J. Indus. Org. 547 (2011), https://www.sciencedirect.com/science/article/abs/pii/S0167718710001384.
[51] Andrew Kearns, Does Competition from Cable Providers Spur the Deployment of Fiber? (July 27, 2023) (working paper), https://ssrn.com/abstract=4523529 (finding that “competition reduces providers’ incentive to deploy high-speed service. Specifically, I find that as a monopolist CenturyLink would deploy slightly more fiber (in place of DSL), increasing available broadband quality for approximately 12,000 households, as compared to its deployment under competition”).
[52] Mankiw & Whinston, supra note 47.
[53] Id.
[54] See generally Section 706 Report, supra note 33.
[55] Chad Syverson, Challenges to Mismeasurement Explanations for the U.S. Productivity Slowdown, 31 J. Econ. Persp. 165, 174–75 (2017).
[56] Fruits et al., supra note 2.
[57] Reply Comments of the International Center for Law & Economics, Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, WC Docket No. 17-84 (Nov. 2022), https://laweconcenter.org/resources/icle-reply-comments-on-wireline-broadband-deployment; see also Reply Comments of the International Center for Law & Economics, Build America: Eliminating Barriers to Wireless Deployments, WT Docket No. 25-276 (Jan. 12, 2026), https://laweconcenter.org/wp-content/uploads/2026/01/Build-America-Wireless-infrastructure-Comments.pdf.
[58] See, e.g., Ben Sperry & Kristian Stout, Issue Brief: Pole Attachments and Broadband Build-out, Int’l Ctr. for L. & Econ. (July 2021), https://laweconcenter.org/wp-content/uploads/2021/07/Pole-Attachment-Issue-Brief.pdf.
[59] See, e.g., Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment et al., Declaratory Ruling and Third Report and Order, WT Docket No. 17-79 et al., 33 FCC Rcd. 9088 (2018).
[60] Sperry & Stout, supra note 58 (“arguing that permitting and zoning barriers remain among the most significant and addressable impediments to broadband deployment, and that congressional action to extend FCC oversight to municipally- and co-op-owned poles would materially reduce deployment costs without offsetting public benefits”); see also Ben Sperry, Geoffrey A. Manne & Kristian Stout, The Role of Antitrust and Pole-Attachment Oversight in TVA Broadband Deployment, 29 J. Tech. L. & Pol’y 73 (2025) (documenting how the Tennessee Valley Authority allows local power companies to abuse the pole-attachment process).
[61] Fruits et al., supra note 22.
[62] See ICLE Comments to CPUC on Charter/Cox Merger, Int’l Ctr. for L. & Econ. (Feb. 24, 2026), https://laweconcenter.org/resources/icle-comments-to-cpuc-on-charter-cox-merger.
[63] Fruits et al., supra note 2, at 18 (“Because of these dynamics, mergers and increased concentration can sometimes be associated with increased investment, in that they may allow firms to achieve greater economies of scale and scope”).
[64] Comments of the International Center for Law & Economics, Delete, Delete, Delete, GN Docket No. 25-133, at 12 (Apr. 11, 2025), https://laweconcenter.org/resources/icle-comments-to-fcc-re-delete-delete-delete (“(1) directly related to mitigating specific, transaction-specific harms; (2) narrowly tailored to address those harms; and (3) limited in duration, with specific sunset provisions”).
[65] Id. at 5-6.
[66] Fruits, Manne & Stout, supra note 6, at 2-3.
[67] Id.
[68] Id. at 3-4.
[69] Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, § 6, 106 Stat. 1460, 1469–71 (1992).
[70] Fruits, Manne & Stout, supra note 6.
[71] Id. at 4-5.
[72] Id.
[73] Id. at 5-6.
[74] Id. at 6-8.
[75] Id.
[76] Nat’l Broad. Co. v. United States, 319 U.S. 190, 215-16 (1943) (holding that the FCC’s powers are “not limited to the engineering and technical aspects of regulation of radio communication” and that the Act “puts upon the Commission the burden of determining the composition of that traffic”).
[77] The Supreme Court has extended limited content authority over broadcasting under theories of ancillary jurisdiction, but that authority remains narrower than the broad public-interest standard applicable to broadcast regulation. United States v. Midwest Video Corp., 406 U.S. 649 (1972) (extending ancillary jurisdiction to cable-access requirements); FCC v. Midwest Video Corp., 440 U.S. 689 (1979) (limiting ancillary jurisdiction where cable regulation conflicted with the Communications Act’s treatment of cable as a non-common carrier).
[78] Ben Sperry, Censorship-by-Proxy: Jawboning in the Marketplace of Ideas, Int’l Ctr. for L. & Econ. (May 8, 2026), https://laweconcenter.org/wp-content/uploads/2026/05/The-New-Jawboning-The-Continued-Threat-to-Free-Speech-from-Government-Coercion-Under-the-Trump-FTC-and-FCC.pdf.
[79] Ben Sperry, First Amendment Jurisprudence Should Reflect Economic Reality: Why Red Lion and Pacifica Must Fall, Truth on the Mkt. (Oct. 14, 2025), https://truthonthemarket.com/2025/10/14/first-amendment-jurisprudence-should-reflect-economic-reality-why-red-lion-and-pacifica-must-fall.
[80] Id.
[81] Sperry, supra note 79, at 27-28.
[82] Id. (noting that courts or Congress would likely need to curb jawboning by agencies such as the FCC).
[83] Sports Broadcasting Practices and Marketplace Developments, Public Notice, MB Docket No. 26-45 (Feb. 2026) [hereinafter Sports Broadcasting Notice].
[84] Sports Broadcasting Act of 1961, Pub. L. No. 87-331, 75 Stat. 732 (1961) (codified at 15 U.S.C. §§ 1291–1295).
[85] Chantz Martin, FCC Chairman Questions NFL’s Antitrust Protection as League Shifts to Streaming Services, Fox News (Mar. 27, 2026), https://www.foxnews.com/sports/fcc-chairman-questions-nfls-antitrust-protection-league-shifts-streaming-services.
[86] ICLE Sports Broadcasting Comments, supra note 10.
[87] Id. at 5.
[88] Id.
[89] Id. at 4.
[90] Id. at 6-7.
[91] Sports Broadcasting Notice, supra note 84.
[92] ICLE Sports Broadcasting Comments, supra note 10, at 5-6.
[93] Id.
[94] Alaina Getzenberg & Kevin Seifert, Sources: DOJ Opens Antitrust Investigation of NFL over TV Deals, ESPN (Apr. 9, 2026), https://www.espn.com/nfl/story/_/id/48440303/sources-doj-opens-antitrust-investigation-nfl-tv-deals (quoting the NFL: “With over 87% of our games on free, broadcast television, including 100% of games in the markets of the competing teams, the NFL has for decades put our fans front and center in how we distribute our content. The 2025 season was our most viewed since 1989 and reflects the strength of the NFL distribution model and its wide availability to all fans.”).
[95] ICLE Sports Broadcasting Comments, supra note 10, at 9-14.
[96] The FCC would be asserting sweeping new regulatory authority under a long-extant statute, relying on a broadly worded ancillary provision, even though Congress has repeatedly declined to address the issue legislatively. Id. at 11.
[97] 47 U.S.C. § 151 (2018).
[98] Christopher J. Wright, The Scope of the FCC’s Ancillary Jurisdiction After the D.C. Circuit’s Net Neutrality Decisions, 67 Fed. Commc’ns L.J. 19 (2015).
[99] United States v. Southwestern Cable Co., 392 U.S. 157 (1968).
[100] Midwest Video, 440 U.S. 689.
[101] Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010).
[102] Id. at 653.
[103] Id. at 655.
[104] Southwestern Cable, 392 U.S. at 175-77.
[105] Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).
[106] Id.
[107] West Virginia v. EPA, 597 U.S. 697 (2022).
TOTM Regulators keep warning that AI markets are about to be captured by Big Tech. The awkward fact is that AI markets keep refusing to cooperate. . . .
Regulators keep warning that AI markets are about to be captured by Big Tech. The awkward fact is that AI markets keep refusing to cooperate. Several years into the generative-AI boom, the sector still looks less like a coronation than a street fight: OpenAI, Google, Meta, Amazon, Anthropic, Perplexity, Mistral, xAI, and others are battling across models, applications, distribution, infrastructure, and enterprise services.
As I argued recently, “durable market power and demonstrable competitive harm remain elusive.” The market has not simply “tipped” toward Google, Meta, Amazon, Apple, or Microsoft. If anything, the most visible consumer-AI leader is OpenAI, which is reportedly preparing for an initial public offering.
Anthropic appears to have an edge in enterprise AI services, while Google and Microsoft benefit from distribution and infrastructure tied to their legacy businesses. Those advantages make them serious contenders, but hardly inevitable winners. On closer inspection, the AI ecosystem looks less like a market already captured by “Big Tech” than one defined by entry, rivalry, experimentation, and rapid technological change.
Despite those developments, a more pessimistic narrative continues to push for aggressive antitrust enforcement—and even direct state intervention—to “shape” AI markets. Advocates warn that AI could otherwise “supercharge ‘digital feudalism.’” That framing now runs through much of contemporary AI policy. The goal is no longer merely to police markets after anticompetitive conduct occurs, but to intervene ex ante—before the fact—to prevent a feared future of “private control” and “rent extraction.”
In his 2024 paper “The Case Against Preemptive Antitrust in the Generative Artificial Intelligence Ecosystem,” Jonathan Barnett argues that this turn toward enforcement in AI markets reflects a broader “preemptive approach” to antitrust. Under that approach, regulators presume certain practices by large technology firms are anticompetitive and place the burden on those firms to prove otherwise. Barnett’s warning is straightforward: in emerging markets, premature intervention risks suppressing “innocuous or efficient business practices” before regulators have enough evidence to assess their competitive effects.
That concern is especially acute in early-stage markets, where uncertainty is high and business practices that initially appear exclusionary may turn out to be competitively neutral—or affirmatively procompetitive. In AI markets, that includes product integration, minority investments, partnerships, licensing arrangements, and cloud-computing agreements that help firms assemble the complementary assets needed to compete.
Together with Dirk Auer, I have similarly warned that:
… overenforcement in the field of generative AI could engender the very harms that policymakers currently seek to avert. Indeed, preventing so-called “big tech” firms from competing in these markets (for example, by threatening competition intervention as soon as they build strategic relationships with AI startups) may thwart an important source of competition needed to keep today’s leading generative-AI firms in check.
This post examines three recent examples—from the European Union, Italy, and Brazil—that illustrate the common logic of this preemptive approach and suggest the warning is becoming increasingly urgent.
TOTM The local news business has spent the past two decades being “saved” by people who mostly seem to want it embalmed. Every new shift in . . .
The local news business has spent the past two decades being “saved” by people who mostly seem to want it embalmed. Every new shift in how Americans consume information—websites, social feeds, newsletters, podcasts, short-form video, artificial-intelligence summaries—gets treated less like evidence of adaptation than proof that civilization will soon forget how school-board meetings work.
That anxiety is understandable. But preserving the old delivery system is not the same thing as preserving journalism.
Regulatory Comments I. Introduction The International Center for Law & Economics (ICLE) submits these comments in response to the U.S. Department of Justice Antitrust Division (DOJ) and . . .
The International Center for Law & Economics (ICLE) submits these comments in response to the U.S. Department of Justice Antitrust Division (DOJ) and Federal Trade Commission (FTC) Joint Public Inquiry for Consideration of Guidance on Collaborations Among Competitors (Docket No. ATR-2026-0001).[1] Both agencies have acknowledged that new guidelines are needed. These comments therefore focus on what those guidelines should contain.
ICLE recommends that the agencies: (1) restore the general 20% combined-market-share safe harbor from the 2000 Antitrust Guidelines for Collaborations Among Competitors; (2) establish a 25% safe harbor for research-and-development (R&D) collaborations, along with a two-year grace period modeled on the European Union (EU) framework; (3) clarify that algorithmic-pricing liability requires evidence of coordination, not merely parallel use of software tools or platform policies; (4) establish safe harbors for procompetitive data-sharing arrangements, including artificial-intelligence (AI) training-data collaborations and cybersecurity-threat-intelligence sharing; and (5) confirm favorable rule-of-reason treatment for workforce credentialing, safety-standardization, and training collaborations that remain open and nondiscriminatory.
For 24 years, the 2000 Guidelines gave businesses a practical framework for evaluating competitor collaborations.[2] When the agencies withdrew those Guidelines in December 2024, they offered no replacement, transition period, or interim framework.[3] FTC Commissioner Melissa Holyoak warned in dissent that businesses would be left “grasping in the dark.”[4] Then-Commissioner Andrew Ferguson similarly argued that agency guidance must “properly inform[] the public of the Commission’s enforcement position” so businesses can plan with reasonable predictability.[5]
The resulting harm is not most visible in completed collaborations later challenged by enforcers. It appears in collaborations that never occur because firms narrow, delay, or abandon proposed arrangements in response to legal uncertainty. That effect is especially significant in research-intensive and globally competitive industries such as AI, semiconductors, and pharmaceuticals.
Recent developments in AI illustrate the problem. A March 2026 Lawfare analysis argued that antitrust uncertainty may discourage frontier AI firms from pursuing deeper joint safety initiatives, including collaborative model evaluations.[6] The article discussed a 2025 joint safety evaluation by OpenAI and Anthropic that was limited to publicly released models and suggested that collaboration involving unreleased systems may be constrained by antitrust concerns.[7] Anthropic has likewise stated that greater clarity on the antitrust treatment of AI-safety collaborations “would help determine whether and how AI labs can collaborate on safety standards.”[8]
Similarly, Bloomberg reported in April 2026 that OpenAI, Anthropic, and Google had begun sharing information through the Frontier Model Forum—the nonprofit they formed with Microsoft in 2023—to detect “adversarial distillation,” a technique used to replicate outputs from advanced AI systems.[9] According to the report, the companies remained uncertain about what information they could lawfully share under existing antitrust guidance and indicated that greater regulatory clarity would facilitate additional cooperation. The pattern is the same in both examples: firms seek to collaborate on objectives policymakers support, but legal uncertainty narrows the scope of permissible cooperation.
The agencies have themselves recognized the importance of clear guidance. Acting Assistant Attorney General Omeed Assefi stated in February 2026 that “vigorous and effective enforcement can only exist when the rules of the road are clearly outlined.”[10] Chairman Ferguson similarly observed that “businesses need transparency and predictability from enforcers more than ever.”[11] The case for new guidelines follows directly from those principles.
Section 4.1 of the 2000 Guidelines explained the rationale for safe harbors directly, identifying “situations in which anticompetitive effects are so unlikely that the Agencies presume the arrangements to be lawful without inquiring into particular circumstances.” In 2024, by contrast, the FTC and DOJ argued that the 2000 Guidelines “risk creating safe harbors that have no basis in federal antitrust statutes.” That criticism misconstrued the nature of the safe harbors described in the Guidelines.
The 2000 Guidelines did not confer antitrust immunity or alter the substantive reach of the antitrust laws or Section 5 of the FTC Act. They recognized a basic economic reality: competitor collaborations are often procompetitive,[12] particularly when they involve firms with limited market power or facilitate productive joint activity such as R&D. The Guidelines identified categories of arrangements unlikely to harm competition and explained that the agencies were correspondingly unlikely to challenge them.[13] In doing so, they gave useful guidance to businesses seeking to comply with the law and to agency staff allocating limited enforcement resources.
Eliminating safe harbors does not improve enforcement precision. It risks directing agency resources toward collaborations unlikely to harm competition or consumers, while subjecting agreements among small competitors to the same uncertainty and scrutiny as arrangements involving firms with substantial market power. That approach can discourage efficient collaborations, particularly in research-intensive and globally competitive industries.
The agencies should therefore restore and expand clear safe-harbor guidance. As discussed below, that effort should include reinstating the 20% general safe harbor from the 2000 Guidelines, adopting a higher threshold for R&D collaborations that generate substantial knowledge spillovers, and creating a grace period for collaborations whose market shares later exceed the applicable threshold because the venture succeeded.
Section 4.2 of the 2000 Guidelines created a general safe harbor for collaborations in which the participants and the collaboration together accounted for no more than 20% of each relevant market in which competition could be affected. Even then, the agencies specified that the safe harbor did “not apply to agreements that are per se illegal, or that would be challenged without a detailed market analysis, or to competitor collaborations to which a merger analysis is applied.”[14]
The economic logic is straightforward. Firms with small combined market shares generally lack the market power needed to raise prices, restrict output, or exclude rivals in a durable way. A firm with a small market share that raises prices will typically lose sales to competitors rather than induce a market-wide price increase. For similar reasons, collaborations among firms with small aggregate market shares are unlikely to facilitate anticompetitive coordination or exclusion.
The Supreme Court’s decision in NCAA v. Alston reinforces the value of such safe harbors.[15] The Court confirmed that most agreements among competitors—including most joint-venture restrictions—are evaluated under the rule of reason, which requires a fact-intensive assessment of market conditions, competitive effects, and business justifications. Rule-of-reason analysis is expensive, time-consuming, and often unpredictable, even for arrangements unlikely to harm competition. Safe harbors reduce those costs by signaling that collaborations below a specified market-share threshold are unlikely to warrant enforcement scrutiny. In that sense, Alston makes safe harbors more valuable, not less.
The Biden administration justified the 2024 withdrawal of the Guidelines on the ground that the safety zones “have no basis in federal antitrust law.”[16] That rationale misunderstands the function of safe harbors. Safe harbors are enforcement-policy statements, not binding legal rules. The antitrust laws neither require nor prohibit them. The relevant policy question is whether the FTC and DOJ should devote enforcement resources to investigating collaborations among firms with low combined market shares. The answer is generally no. A 20% combined-share threshold remains a reasonable proxy for the point below which the structural conditions necessary for consumer harm are unlikely to exist.
ICLE therefore recommends restoring the general 20% safe harbor from Section 4.2 of the 2000 Guidelines. The same carveouts from the 2000 framework should also remain in place. The safe harbor should not apply to: (1) agreements that are per se illegal; (2) agreements the agencies would challenge without detailed market analysis; or (3) collaborations that function as mergers.
R&D collaborations warrant a higher safe-harbor threshold than ordinary competitor collaborations because they generate substantial knowledge spillovers. When one company invests in research, competitors and consumers often benefit indirectly through published findings, reverse engineering, employee mobility, or follow-on innovation. The investing firm therefore cannot capture the full social value of its research. As a result, private firms tend to invest less in R&D than would maximize overall welfare. Joint ventures can help correct that problem by allowing firms to share the costs, risks, and benefits of research projects that neither could efficiently undertake alone.
The economic literature supports this view. Morton Kamien, Eitan Muller, and Israel Zang show that R&D cooperation can increase total welfare relative to independent investment.[17] Empirical studies of European manufacturing firms likewise find that cooperation with other companies is associated with higher R&D spending.[18] In biopharmaceutical development, firms increasingly rely on alliances and joint ventures to share risk and combine complementary scientific and commercial capabilities, particularly when the average cost of bringing a new drug to market exceeds $1.3 billion per approved product.[19]
The EU recognized these dynamics in its revised R&D Block Exemption Regulation, which took effect July 1, 2023.[20] The regulation establishes a 25% combined-market-share safe harbor for joint R&D agreements among competitors. The European Commission explained that, below this threshold, the technical and economic benefits generated by R&D cooperation—including new products, improved technologies, and lower prices—will generally outweigh potential anticompetitive effects.[21] ICLE recommends that the FTC and DOJ adopt a comparable 25% threshold for R&D-specific safe harbors.
The international competitiveness implications are significant. American firms currently operate without a general safe-harbor regime, while EU firms benefit from clear thresholds under the 2023 Horizontal Block Exemption Regulations, including a 25% threshold for R&D agreements and a 20% threshold for specialization agreements.[22] A joint research venture between firms with a combined 22% market share may be lawful in both jurisdictions, but EU firms can confirm that quickly and predictably. American firms, by contrast, must either incur substantial legal-review costs or abandon the collaboration.
That disparity matters most in globally competitive industries such as AI, semiconductors, and pharmaceuticals, where firms make investment and collaboration decisions across jurisdictions. Regulatory clarity can influence where firms invest, conduct research, and form partnerships.
ICLE also recommends adopting a two-year grace period, consistent with the EU framework,[23] for collaborations whose participants exceed the applicable combined-market-share threshold after forming the arrangement.
Such a rule would prevent the safe harbor from creating perverse incentives against successful collaborations. Without a grace period, firms could face immediate legal uncertainty or enforcement risk simply because a productive collaboration succeeded in expanding output, improving products, or increasing market share. A grace period would instead allow firms time to adjust their arrangements or seek legal guidance while preserving the benefits of efficient cooperation.
The agencies’ request for comment specifically asks whether joint licensing arrangements would benefit from additional guidance.[24] They would. Joint licensing among competitors—including patent pools, standard-essential-patent (SEP) platforms, and cross-licensing arrangements—is a paradigmatic example of a procompetitive horizontal collaboration of the type the 2000 Guidelines were designed to protect.
Properly structured joint-licensing arrangements can reduce transaction costs, mitigate royalty stacking, and accelerate the dissemination of standardized technologies, particularly in industries built around complex technical standards. The agencies should therefore reaffirm that patent pools limited to complementary patents and licensed on fair, reasonable, and nondiscriminatory (FRAND) terms generally warrant rule-of-reason treatment.
At the same time, the agencies should distinguish those arrangements from collective-bargaining groups among implementers. Existing antitrust doctrine already provides the tools necessary to distinguish procompetitive joint licensing from buyers’ cartels without categorical prohibitions or overbroad safe harbors.
Properly structured patent pools and licensing platforms can reduce transaction costs, mitigate royalty stacking, and accelerate the diffusion of standardized technologies.[25] Standard-setting organizations often develop technical standards that incorporate hundreds—or even thousands—of complementary patented technologies. Licensing those patents individually can require extensive negotiations, evaluation of large global patent portfolios, and specialized technical and legal counsel. Patent pools and licensing platforms offer a more efficient “one-stop-shop” alternative. Empirical research estimates that patent pools can save hundreds of millions of dollars in transaction costs relative to purely bilateral licensing.[26]
Competitive market forces constrain pool royalty rates when bilateral licensing remains available. In most patent pools, members retain the right to license their SEPs independently. An SEP is a patent that must be used to comply with a technical standard, such as a wireless-communications protocol. Because pool licenses and bilateral licenses operate as functional substitutes,[27] a pool operator cannot sustainably charge royalties above the value of available bilateral alternatives, adjusted for the efficiencies the pool creates. If a pool attempts to charge supra-competitive rates, rational licensees can negotiate directly with SEP holders, who remain bound by their FRAND licensing commitments.
The DOJ recognized these dynamics in its July 2020 Business Review Letter regarding the Avanci 5G Platform. DOJ concluded that the platform was “unlikely to harm competition”[28] and identified the preservation of independent bilateral licensing as a key safeguard against anticompetitive effects.[29] In a November 2022 letter signed by 25 legal academics, economists, former federal judges, and other antitrust and intellectual-property experts, ICLE and others urged the agencies to preserve that approach.[30]
New guidelines should confirm that properly structured patent pools are presumptively procompetitive and should be analyzed under the rule of reason. That treatment should apply to pools limited to essential and complementary patents, licensed on FRAND terms, and structured to preserve participants’ ability to license bilaterally outside the pool.
A separate question is whether collective bargaining by implementers—sometimes called licensing-negotiation groups (LNGs)—should receive safe-harbor treatment analogous to patent pools. The European Commission initially proposed such a safe harbor in its draft revised Technology Transfer Guidelines before ultimately retreating from that approach[31] The FTC and DOJ should likewise decline to adopt one.
Proponents of LNG safe harbors often argue that LNGs are simply the mirror image of patent pools. That analogy is flawed. Patent pools involve the collective licensing of complementary patents—separately owned technologies that must be combined to implement a standard. By aggregating those rights, pools can reduce transaction costs and mitigate royalty stacking,[32] which occurs when multiple overlapping royalty demands increase the total cost of implementing a technology standard.
LNGs operate differently. Rather than coordinating the sale of complementary technologies, they coordinate the purchase of licenses among implementers that would otherwise negotiate independently. In practice, LNGs involve buyers collectively setting the price they are willing to pay for technology licenses.[33] That structure more closely resembles a buyers’ cartel than a patent pool. Treating LNGs as equivalent to patent pools collapses the important distinction between coordinating complements and coordinating substitutes, and improperly extends the efficiency rationale for pools to fundamentally different conduct.
Buyers’ cartels can be as harmful as sellers’ cartels. Just as a sellers’ cartel can inflate prices above competitive levels, a buyers’ cartel can suppress prices below competitive levels. In the context of intellectual property, suppressed royalties can reduce returns to innovation and weaken incentives to invest in future technologies.[34] U.S. antitrust authorities have long recognized this principle. In the music-licensing context, for example, the DOJ filed a statement of interest explaining that collective rate-negotiation strategies could constitute per se unlawful buyers’ cartels.[35] More recently, a senior DOJ official criticized the European Commission’s support for an automotive LNG as “unfortunate” and difficult to reconcile with sound competition-law principles, warning that similar arrangements would likely be treated as per se unlawful buyers’ cartels under U.S. law.[36]
ICLE therefore recommends that any revised guidelines make three points clear. First, properly structured patent pools and SEP platforms—including those limited to essential and complementary patents, licensed on FRAND terms, and preserving participants’ rights to license bilaterally—are presumptively procompetitive and should be analyzed under the rule of reason, consistent with the 2020 Avanci Business Review Letter. Second, the agencies should not extend safe-harbor treatment to implementer collective-bargaining arrangements that lack the structural characteristics that make patent pools procompetitive. Third, existing antitrust principles, applied case by case, are sufficient to address potential harms from joint licensing without categorical prohibitions or overbroad safe harbors.
The agencies’ request for comment specifically asks whether new technologies and business models—including algorithmic pricing and data sharing—would benefit from additional guidance[37] They would. Clearer guidelines are needed to distinguish lawful parallel conduct from unlawful coordination.
The key question should be whether competitors share nonpublic, competitively sensitive information or otherwise coordinate their conduct. Liability should not turn merely on the use of algorithms, common software tools, or uniform platform policies. Algorithms often automate lawful conduct, such as responding to publicly available prices and changing market conditions, and can generate substantial consumer benefits.
New guidelines should therefore focus on identifying concrete mechanisms of coordination, distinguishing public from nonpublic information, and preserving the distinction between vertical platform policies and horizontal agreements among competitors.
Algorithmic pricing can arise in at least three distinct situations that require different antitrust treatment. First, competitors may agree to use a shared pricing algorithm to coordinate prices. In that scenario, the algorithm itself is legally irrelevant; the unlawful agreement is the antitrust violation, and existing law already addresses it.
Second, competing firms may each share competitively sensitive information with a common third-party platform that generates pricing recommendations for all participants. In that circumstance, the platform can function as a coordinating mechanism because each participant receives recommendations informed by rivals’ nonpublic data, even absent direct communication among competitors.
Third, independent algorithms may arrive at similar pricing outcomes simply because they respond to the same market conditions and economic signals. That form of conscious parallelism is not unlawful under U.S. antitrust law absent an agreement among competitors.
The proposed consent decree in the DOJ’s RealPage case offers a useful framework for distinguishing lawful from unlawful conduct.[38] The decree targets the use of competitors’ nonpublic, competitively sensitive information in generating pricing recommendations, while preserving firms’ ability to rely on their own internal data and publicly available market information. As the Competitive Impact Statement explains, the decree permits pricing recommendations “solely based on a property owner’s own nonpublic data or data available to the general public,” reflecting “the principle that firms should not make pricing decisions using insight drawn from their competitors’ nonpublic, competitively sensitive data.”[39]
New guidelines should adopt that distinction as their organizing principle.
An algorithm that monitors publicly posted competitor prices and adjusts accordingly merely automates conduct that human pricing analysts have long performed lawfully. As former FTC Acting Chairman Maureen Ohlhausen observed, automated business practices should generally be evaluated by asking whether the same conduct would be lawful if performed manually—her “guy named Bob” test.[40] The antitrust concern arises when competitors share nonpublic, competitively sensitive information through a common platform. New guidelines should make that distinction explicit.
Precision matters. In the RealPage litigation, the problematic information was not publicly visible asking rents posted on apartment-listing websites. It instead involved nonpublic transactional data, including executed lease prices, concessions and discounts, renewal terms, and forward-looking occupancy projections.[41] The distinction between public pricing information and confidential transactional data is critical. Not all commercially relevant information is sufficiently sensitive to create antitrust concerns.
The hotel-pricing software at issue in Gibson v. Cendyn illustrates the other side of the line.[42] There, each hotel’s pricing recommendations were generated using the hotel’s own internal data combined with publicly available competitor rates collected from travel websites. The software did not pool or share one hotel’s proprietary data with competing hotels. The 9th U.S. Circuit Court of Appeals therefore affirmed dismissal of the antitrust claims, holding that independent use of the same pricing algorithm does not itself constitute a restraint of trade, even when competitors know they are using the same tool.
That outcome follows naturally from the distinction between public and nonpublic information. When a pricing system excludes competitors’ confidential data, the factual predicate for hub-and-spoke liability is absent.
As former Deputy Assistant Attorney General Roger Alford explained, “in the absence of evidence of concerted action, we cannot presume the simple use of pricing algorithms is an antitrust violation.”[43] That principle remains correct. The use of common software tools, standing alone, does not establish unlawful coordination.
The Gibson v. Cendyn litigation illustrates the point. As discussed above, the software architecture in that case excluded competitors’ confidential data.[44] Each hotel’s pricing recommendations were generated from its own internal information and publicly available market data, rather than from competitors’ nonpublic information. When a platform operates this way, the factual predicate for hub-and-spoke liability is absent because the platform is not functioning as a conduit for sharing competitively sensitive information among rivals.
New guidelines should identify the plus factors necessary to transform parallel adoption of a common pricing tool into a hub-and-spoke conspiracy.[45] Relevant evidence could include: (1) coordinated adoption decisions among competitors; (2) agreements not to deviate from algorithmic recommendations; (3) exchange of competitors’ nonpublic information through the platform to generate pricing recommendations; and (4) software features specifically designed to align prices or penalize deviation from recommended pricing.
The agencies should not challenge algorithmic-pricing conduct without first identifying a concrete mechanism of coordination among competitors.
Another area requiring clearer guidance is the treatment of platform pricing policies, including most-favored-nation (MFN) clauses, price-parity provisions, and “fair pricing” policies. Recent litigation increasingly characterizes these arrangements as hub-and-spoke conspiracies facilitating horizontal coordination among sellers.[46] That framing risks collapsing ordinary vertical contracting into per se unlawful horizontal price-fixing.
A platform that adopts uniform pricing terms across its seller agreements engages in a common form of vertical contracting. Sellers subject to these policies do not gain access to competitors’ costs, pricing strategies, or proprietary information. Nor does widespread use of a common contractual term transform a series of bilateral vertical agreements into a horizontal conspiracy. A franchise system’s uniform quality standards, for example, do not create a conspiracy among franchisees simply because all franchisees operate under similar contractual obligations.
MFN provisions are longstanding commercial tools with recognized procompetitive justifications.[47] Judge Richard Posner described MFNs as “standard devices by which buyers try to bargain for lower prices” and “the sort of conduct that the antitrust laws seek to encourage.”[48] The economic literature likewise finds ambiguous competitive effects. The strongest empirical studies report either no statistically significant medium-run price effects from eliminating MFNs or effects that are small and temporary.[49]
United States v. Apple illustrates the substantial evidentiary showing required to establish hub-and-spoke liability.[50] The case involved extensive evidence of horizontal coordination among publishers, direct communications regarding collective strategy, and active orchestration by Apple itself. More broadly, Apple demonstrates that hub-and-spoke liability requires proof of a horizontal agreement among the competing “spokes”—the “rim” of the wheel.[51] If liability was difficult to establish even where a platform actively coordinated supplier conduct, it should not arise absent evidence of horizontal agreement among a platform’s participants.[52] Uniform contractual terms alone—even when imposed by a dominant platform—cannot supply the missing rim.
New guidelines should therefore reaffirm three principles. First, hub-and-spoke liability requires proof of a horizontal agreement connecting competing firms.[53] Second, conscious parallelism, even when facilitated by common tools or market conditions, is not itself a conspiracy.[54] Third, vertical contract terms between a platform and its participants are analytically distinct from horizontal agreements among those participants.
Guidelines that treat common algorithmic tools or platform pricing policies as presumptive hub-and-spoke coordination would jeopardize substantial consumer benefits. Dynamic pricing can improve allocative efficiency by matching supply more closely to demand. Empirical research finds that dynamic airline pricing increases output and overall welfare, while rideshare surge pricing increases rider surplus and disproportionately benefits lower-income riders.[55] Third-party pricing tools can also reduce barriers to entry by giving smaller firms access to sophisticated pricing capabilities previously available only to larger competitors. The Organisation for Economic Co-operation and Development (OECD) has recognized that pricing algorithms can help smaller firms gain market insights and compete more effectively.[56]
The Mercatus Center’s 2025 review likewise identified several consumer benefits from algorithmic pricing, including reduced shortages, improved product availability for higher-valuation consumers, and greater responsiveness to changing market conditions.[57] The review concluded that overbroad restrictions on algorithmic pricing would eliminate those benefits without addressing the narrower coordination risks the evidence supports.
Platform pricing policies can likewise serve legitimate procompetitive purposes. The Supreme Court has long recognized that vertical restraints may prevent free riding and protect investment in valuable services and infrastructure.[58] Online platforms often invest heavily in search functionality, product reviews, fraud prevention, payment processing, and logistics. When platforms cannot prevent sellers from using those services while undercutting prices elsewhere, they may shift toward less transparent alternatives such as algorithmic steering, advertising-based rankings, or delisting practices that may prove more harmful to consumers and more difficult to administer.
The empirical literature further underscores the need for case-specific analysis. The competitive effects of algorithmic pricing vary across markets and business models. The same technology that may soften competition in some settings can intensify it in others, as the German gasoline-market study by Stephanie Assad and coauthors demonstrates.[59] New guidelines should therefore focus on concrete evidence of coordination rather than broadly condemning algorithmic pricing technologies or platform pricing policies.
Data sharing presents some of the most consequential unresolved questions in modern antitrust law. The agencies’ request for comment specifically identifies AI training data, cybersecurity-threat intelligence, and benchmarking arrangements as priority areas. Each raises distinct competitive considerations and requires a different analytical framework.
The key distinction is not whether firms share data, but what kind of data they share and whether the arrangement facilitates coordination among competitors. Existing antitrust doctrine already distinguishes between exchanges of current competitively sensitive information, which may facilitate collusion, and exchanges of aggregated, historical, anonymized, or technical information, which often generate substantial procompetitive benefits.
New guidelines should build on those distinctions by adopting targeted safe harbors and clear governance safeguards to distinguish legitimate information sharing from unlawful coordination.
Building competitive AI systems requires large amounts of training data. Research suggests that AI development is often hindered by fragmented or siloed datasets, which increase the time and labor needed to clean, label, and organize training inputs. Standardized or pooled data architectures, by contrast, can improve data availability, governance, and model-development efficiency.[60] A 2025 Mercatus Center working paper likewise found that open-source AI models and commercial data-licensing markets provide smaller firms meaningful access routes to training data, reducing the likelihood that data pooling itself will foreclose competition.[61]
These findings support a data-sharing safe harbor focused on governance safeguards rather than categorical restrictions on pooling. The European Commission’s 2023 Horizontal Guidelines adopt a similar distinction. They treat exchanges of current competitively sensitive information as presumptively problematic because they can facilitate coordination of future conduct, while treating historical or aggregated data managed by an independent intermediary as generally less concerning.[62]
The relevant competition concern is not that firms gain access to larger training datasets. Competition in AI markets generally centers on model architectures, computing resources, training methods, and post-training capabilities—not merely on access to raw inputs. The concern instead is that firms could use a purported “training-data pool” to exchange current pricing, output, capacity, or forward-looking business information that would otherwise be unlawful to share directly. Likewise, a jointly trained and jointly deployed model could become a coordination mechanism during real-world use.
Broad restrictions on data pooling would likely do more harm than good. Effective AI training often requires extremely large datasets, and startups may need collaborative arrangements to achieve the scale necessary to compete with incumbents.
The agencies should therefore adopt a safe harbor for data-sharing arrangements that satisfy four conditions: (1) an independent third party administers the arrangement; (2) shared data is aggregated or anonymized; (3) current pricing, output, or forward-looking business-planning information is excluded; and (4) access is available to market participants on nondiscriminatory terms.
In April 2014, the FTC and DOJ issued a joint policy statement explaining that cybersecurity information—such as technical data about hacking methods, attack signatures, and defensive countermeasures—is fundamentally different from competitively sensitive commercial information and therefore “is not likely to raise antitrust concerns.”[63] Congress later reinforced that principle through the Cybersecurity Information Sharing Act of 2015, which established a statutory antitrust exemption for private entities sharing cyber-threat indicators or providing cybersecurity assistance under the act.[64]
The core distinction recognized in the 2014 policy statement remains sound and should be reaffirmed in new guidelines. Technical threat intelligence is categorically different from pricing, output, or other commercial data that could facilitate coordination among competitors. A firm that learns about a new malware signature or network vulnerability through an industry-sharing group gains information relevant to cybersecurity defense, not information that would help coordinate prices or allocate markets.
New guidelines should therefore confirm that cybersecurity-threat-intelligence sharing—limited to technical indicators and expressly excluding current commercial information—does not raise antitrust concerns, regardless of participants’ market shares.
The governance safeguards proposed above for AI training data and cybersecurity intelligence are not novel. They build on information-sharing frameworks the agencies have previously endorsed. Before withdrawing the health-care antitrust policy statements in 2023, the FTC and DOJ recognized a safe harbor for certain health-care benchmarking and information-sharing arrangements. To qualify, the data had to be collected by an independent third party, be more than three months old, include at least five contributors, ensure that no participant supplied more than 25% of the inputs, and be reported only in aggregated form.[65]
Those conditions reflected a broader antitrust principle: aggregated and historical data exchanges are generally less likely to facilitate coordination than direct exchanges of current competitively sensitive information. New guidelines should codify those principles as the baseline framework for lawful information sharing, with the AI and cybersecurity safe harbors discussed above serving as targeted applications.
For industry benchmarking more broadly, the EU framework for standardization agreements provides a useful model.[66] The key safeguards are transparency, open participation on equal terms, voluntary participation, limits on the exchange of competitively sensitive information, and broad access to the resulting benchmarks. These conditions help ensure that benchmarking arrangements serve legitimate informational purposes rather than becoming vehicles for coordination among competitors.
The agencies’ January 2025 Antitrust Guidelines for Business Activities Affecting Workers correctly recognize that collaborations involving professional credentials, safety certifications, and workforce-training standards are generally procompetitive.[67] New guidelines should reaffirm and extend that principle beyond the specific arrangements addressed in the worker guidelines.
The economic rationale is straightforward. Professional credentialing and standardized training reduce information asymmetries between workers and employers by providing independent, verifiable signals of competence. That, in turn, can improve matching efficiency and increase labor mobility by making credentials portable across employers and regions.
Courts have likewise recognized that workforce-related restraints embedded in broader collaborations may warrant rule-of-reason treatment. In Aya Healthcare Services, Inc. v. AMN Healthcare, Inc., for example, the 9th U.S. Circuit Court of Appeals analyzed a non-solicitation provision as an ancillary restraint reasonably related to a broader procompetitive staffing arrangement, rather than as a naked restraint on competition.[68]
The limiting principle is clear. Collaborative standard-setting and credentialing arrangements should be treated as presumptively procompetitive when they are reasonably related to legitimate quality or safety objectives, open to qualified participants on equal terms, and not used to fix wages, allocate employees, or exclude rivals through unjustified restrictions. New guidelines should confirm rule-of-reason treatment for arrangements that satisfy those conditions.
In NCAA v. Alston, the Supreme Court reaffirmed that most agreements among competitors—including most joint-venture restraints—are analyzed under the rule of reason, which requires a fact-specific assessment of market conditions, competitive effects, and asserted business justifications.[69] Rule-of-reason analysis is often expensive, time-consuming, and unpredictable, even for collaborations unlikely to harm competition. Safe harbors reduce those costs by signaling that low-share collaborations are unlikely to raise competitive concerns. As discussed above, Alston makes such guidance more valuable, not less.
The 1st U.S. Circuit Court of Appeals’ decision in United States v. American Airlines Group Inc. further illustrates the importance of focusing on actual competitive effects rather than labels.[70] The court upheld the government’s challenge to the Northeast Alliance joint venture between American Airlines and JetBlue after finding that the arrangement reduced competition on overlapping routes and decreased output in the form of fewer flights available to consumers. The airlines’ asserted efficiencies failed because they lacked reliable evidentiary support and could have been achieved through less restrictive means.
The key lesson for agency guidance is that calling an arrangement a “joint venture” does not entitle it to favorable treatment. The relevant inquiry is whether the collaboration harms competition in practice. Conversely, collaborations among firms with small combined market shares generally lack the ability to reduce output, raise prices, or exclude rivals in a durable way. Any procompetitive presumption for low-share collaborations should therefore rest on market structure and competitive realities, not formal labels.
The American Airlines litigation also highlighted continuing uncertainty surrounding evidentiary burdens in rule-of-reason cases. American Airlines petitioned the Supreme Court for review, arguing that the circuits apply inconsistent standards at the first step of rule-of-reason analysis.[71] Although the Court denied certiorari,[72] the case underscores the need for clearer agency guidance on what evidence of anticompetitive effects is necessary to satisfy the plaintiff’s initial burden in joint-venture cases.
American businesses evaluating competitor collaborations currently lack any general safe-harbor regime. By contrast, the European Union’s 2023 Horizontal Block Exemption Regulations provide market-share safe harbors for certain research-and-development (R&D) agreements (25% combined market share) and specialization agreements (20% combined market share).[73] The European Commission’s 2023 Horizontal Guidelines also establish a soft safe harbor for certain sustainability-standardization agreements that satisfy specified conditions.[74] In both the R&D and specialization contexts, the EU further provides a two-year grace period when market shares later exceed the applicable threshold.[75] The United States offers no comparable framework.
That disparity has direct competitive consequences. In industries where collaboration decisions are made globally—including artificial intelligence (AI), semiconductors, pharmaceuticals, and advanced manufacturing—the ex ante legal costs of evaluating a collaboration in the United States are now materially higher than in the EU. This difference does not reflect a substantive divergence in the legality of many arrangements. A joint R&D venture between firms with a combined 22% market share may be lawful in both jurisdictions. The difference is that EU firms can determine that more quickly and predictably, while American firms must either incur substantial legal-review costs or forgo the collaboration.
The EU framework therefore makes the costs of the current U.S. guidance gap concrete. American firms face systematically higher collaboration costs than their European counterparts in precisely the industries where international competition and innovation matter most.
ICLE recommends that the agencies incorporate the following principles into new guidelines.
General Safe Harbor. The agencies should not challenge a competitor collaboration when the collaboration and its participants collectively account for no more than 20% of any relevant affected market. The carveouts from the 2000 Guidelines should remain in place. The safe harbor should not apply to: (1) per se unlawful conduct; (2) agreements the agencies would challenge without detailed market analysis; or (3) collaborations that function as mergers.
R&D Safe Harbor. The agencies should not challenge an R&D collaboration when participants’ combined market share does not exceed 25% in any relevant affected market. This threshold reflects the distinctive efficiencies associated with R&D cooperation, including the pooling of complementary assets, expertise, and investment.
Grace Period. A collaboration that exceeds the applicable market-share threshold because participants’ shares increased after the arrangement was formed should retain safe-harbor protection for two calendar years after the threshold is exceeded.
Algorithmic Pricing. Algorithmic-pricing practices should be analyzed under the rule of reason. Independent adoption of pricing software, absent an agreement, shared platform, or exchange of current competitively sensitive information among competitors, does not constitute a Sherman Act violation. The agencies should not challenge algorithmic-pricing conduct without identifying a concrete mechanism of coordination.
Data-Sharing Safe Harbor. Data-sharing arrangements should be presumptively lawful regardless of market share when four conditions are satisfied: (1) an independent third party administers the arrangement; (2) only aggregated or anonymized data is shared; (3) current pricing, output, capacity, or business-planning information is excluded; and (4) access is available to market participants on nondiscriminatory terms.
Cybersecurity Threat Intelligence. Sharing technical cyber-threat indicators, attack signatures, and defensive countermeasures should not raise antitrust concerns, regardless of market share, provided the sharing excludes current commercial pricing, output, or other competitively sensitive business information.
Labor-Market Standard-Setting. Collaborative development of professional credentials, training standards, and workplace-safety standards should receive favorable rule-of-reason treatment when: (1) the standards are reasonably related to legitimate quality or safety objectives; (2) participation is open to qualified parties on nondiscriminatory terms; and (3) the arrangements do not fix wages, allocate employees, or restrict labor supply through exclusionary criteria.
[1] Fed. Trade Comm’n, Press Release, Federal Trade Commission and Department of Justice Seek Public Comment for Guidance on Business Collaborations (Feb. 23, 2026), https://www.ftc.gov/news-events/news/press-releases/2026/02/federal-trade-commission-department-justice-seek-public-comment-guidance-business-collaborations [hereinafter Request for Comment].
[2] U.S. Dep’t of Justice & Fed. Trade Comm’n, Antitrust Guidelines for Collaborations Among Competitors (2000), https://www.ftc.gov/sites/default/files/documents/public_events/joint-venture-hearings-antitrust-guidelines-collaboration-among-competitors/ftcdojguidelines-2.pdf [hereinafter 2000 Guidelines].
[3] U.S. Dep’t of Justice & Fed. Trade Comm’n, Announcement, Justice Department and Federal Trade Commission Withdraw Guidelines for Collaboration Among Competitors (Dec. 11, 2024), https://www.justice.gov/atr/media/1380001/dl?inline.
[4] Fed. Trade Comm’n, Statement of Comm’r Melissa Holyoak on the Withdrawal of the Antitrust Guidelines for Collaborations Among Competitors (Dec. 11, 2024), https://www.ftc.gov/system/files/ftc_gov/pdf/holyoak-collaboration-guidelines-withdrawal-statement.pdf.
[5] Fed. Trade Comm’n, Statement of Comm’r Andrew Ferguson on the Withdrawal of the Antitrust Guidelines for Collaborations Among Competitors (Dec. 11, 2024), https://www.ftc.gov/system/files/ftc_gov/pdf/collaborations-guidance-withdrawal-ferguson_-statement.pdf.
[6] Nicholas Felstead, How Antitrust Can Promote AI Safety Collaborations, Lawfare (Mar. 5, 2026), https://www.lawfaremedia.org/article/how-antitrust-can-promote-ai-safety-collaborations.
[7] OpenAI, Findings from a Pilot Anthropic-OpenAI Alignment Evaluation Exercise (Aug. 26, 2025), https://openai.com/index/openai-anthropic-safety-evaluation.
[8] Anthropic, Comment Letter on AI Accountability Policy (June 6, 2023), https://www-cdn.anthropic.com/257e6352c677beeffcbce24233211887173a41dc/2023.06.06-Anthropic_NTIA_Comment_v2.pdf.
[9] Shirin Ghaffary & Maggie Eastland, OpenAI, Anthropic, Google Unite to Combat Model Copying in China, Bloomberg (Apr. 6, 2026), https://www.bloomberg.com/news/articles/2026-04-06/openai-anthropic-google-unite-to-combat-model-copying-in-china (“The three companies are uncertain about the scope of information they can legally share under existing antitrust guidelines” and have “indicated they would benefit from greater regulatory clarity from the US government.”).
[10] Request for Comment, supra note 1.
[11] Id.
[12] 2000 Guidelines, supra note 2, at 25.
[13] In that regard, the 2000 Guidelines resembled other agency guidance documents, such as the 1997 Horizontal Merger Guidelines, cited in the 2000 Guidelines. Id. at 26 n.3. The 2010 Horizontal Merger Guidelines likewise identified two categories of mergers “unlikely to have adverse competitive effects and ordinarily require no further analysis,” even though they did not use the term “safety zone.” U.S. Dep’t of Justice & Fed. Trade Comm’n, Horizontal Merger Guidelines § 5.3 (2010), https://www.justice.gov/atr/file/810276/dl?inline.
[14] 2000 Guidelines, supra note 2, at 26–27 (internal citations omitted).
[15] NCAA v. Alston, 594 U.S. 69 (2021).
[16] Fed. Trade Comm’n, Statement of Comm’r Alvaro M. Bedoya Regarding the Withdrawal of the Antitrust Guidelines for Collaborations Among Competitors (Dec. 11, 2024), https://www.ftc.gov/system/files/ftc_gov/pdf/bedoya-statement-regarding-withdrawal-collaboration-guidelines.pdf.
[17] Morton I. Kamien, Eitan Muller & Israel Zang, Research Joint Ventures and R&D Cartels, 82 Am. Econ. Rev. 1293 (1992).
[18] Bojan Lalic, Tanja Todorovic, Nenad Medic, Branislav Bogojevic, Danijela Ciric & Ugljesa Marjanovic, The Impact of Inter-Organizational Cooperation on R&D Expenditure of Manufacturing Companies, 39 Procedia Manufacturing 1401 (2019).
[19] See, e.g., Neil Lesser & Matt Hefner, R&D Partnerships—Partnering for Progress: How Collaborations Are Fueling Biomedical Advances, Drug Dev. & Delivery (Nov.–Dec. 2017), https://drug-dev.com/rd-partnerships-partnering-for-progress-how-collaborations-are-fueling-biomedical-advances; see also Andrew Mulcahy, Stephanie Rennane, Daniel Schwam, Reid Dickerson, Lawrence Baker & Kanaka Shetty, Use of Clinical Trial Characteristics to Estimate Costs of New Drug Development, 8 JAMA Network Open e2453275 (Jan. 6, 2025), https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2828689 (reporting a mean drug-development cost of $1.3 billion and a median cost of $708 million).
[20] Commission Regulation (EU) 2023/1066 of 1 June 2023 on the Application of Article 101(3) of the Treaty on the Functioning of the European Union to Certain Categories of Research and Development Agreements, 2023 O.J. (L 143) 9.
[21] Id. rec. 5 (“Below a certain level of market power, it can in general be presumed, for the application of Article 101(3) of the Treaty, that the positive effects of research and development agreements will outweigh any negative effects on competition.”).
[22] Commission Regulation 2023/1066, supra note 20; Commission Regulation 2023/1067, 2023 O.J. (L 143) 20 (EU) (specialization agreements).
[23] Both the R&D and specialization block exemptions include two-year grace periods after market shares exceed the relevant threshold.
[24] Request for Comment, supra note 1. (“What topics would benefit from additional guidance—for example, joint licensing arrangements?”).
[25] Written Submissions of the International Center for Law & Economics as Intervener at ¶ 2.1.1, Tesla, Inc. v. InterDigital Patent Holdings, Inc. & Avanci, LLC, UKSC/2025/0058 (U.K. Sup. Ct. Mar. 16, 2026) [hereinafter ICLE Tesla v. Avanci Submissions].
[26] Robert P. Merges & Michael Mattioli, Measuring the Costs and Benefits of Patent Pools, 78 Ohio St. L.J. 281 (2017) (presenting the first empirically based estimate of patent-pool transaction-cost savings and finding that pools can save hundreds of millions of dollars relative to bilateral-licensing counterfactuals).
[27] ICLE Tesla v. Avanci Submissions, supra note 25, ¶ 6.3.
[28] U.S. Dep’t of Justice, Business Review Letter Re: Avanci 5G Platform 2–3 (July 28, 2020) [hereinafter DOJ Avanci Business Review Letter] (“After soliciting input from a range of stakeholders in the automotive and telecommunications industries, including potential licensors and licensees, conducting an independent review, and considering our prior guidance and reviews of other patent pools, we conclude that, on balance, Avanci’s proposed 5G Platform is unlikely to harm competition.”).
[29] Id. at 21 (“There is no single correct way to calculate a reasonable royalty in the FRAND context.”).
[30] Letter from Adam Mossoff, Geoffrey A. Manne, Gus Hurwitz et al. to Jonathan Kanter, Assistant Att’y Gen., Re: Support for the Avanci Business Review Letter 1 (Nov. 30, 2022) [hereinafter Mossoff/ICLE Kanter Letter]. The letter was signed by 25 experts, including former Federal Circuit Judges Paul R. Michel and Kathleen M. O’Malley and former D.C. Circuit Judge Douglas H. Ginsburg, and characterized the 2020 Avanci business review letter as “a legally sound and evidence-based approach in applying antitrust law to innovative commercial institutions like the Avanci patent pool that facilitate the efficient commercialization of new standardized technologies in the fast-growing mobile telecommunications sector to the benefit of innovators, implementers, and consumers alike.”
[31] Communication from the Commission—Approval of the Content of a Draft for a Commission Regulation on the Application of Article 101(3) of the Treaty on the Functioning of the European Union to Categories of Technology Transfer Agreements and a Draft for Commission Guidelines on the Application of Article 101 of the Treaty to Technology Transfer Agreements, 2025 O.J. (C/2025/5024), § 4.5 (Sept. 16, 2025); see also Comments of the International Center for Law & Economics on the Draft Revised Technology Transfer Block Exemption Regulation and Technology Transfer Guidelines 4–7 (Oct. 23, 2025) [hereinafter ICLE TTBER Comments].
[32] See Josh Lerner & Jean Tirole, Efficient Patent Pools, 94 Am. Econ. Rev. 691 (2004); Carl Shapiro, Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard Setting, 1 Innovation Pol’y & Econ. 119, 134 (2000) (“In many respects, a patent pool (much like a package license) is the purest solution to the complements problem described above and analyzed in the appendix.”).
[33] See, e.g., Igor Nikolic, Licensing Negotiation Groups for SEPs: Collusive Technology Buyers Arrangements? Their Pitfalls and Reasonable Alternatives, Les Nouvelles 226 (2021).
[34] Id.
[35] Statement of Interest of the United States, Global Music Rights, LLC v. Radio Music License Comm., Inc., No. 2:16-cv-09051-TJH-AS (C.D. Cal. Dec. 5, 2019), ECF No. 111.
[36] Khushita Vasant, EU Guidance on Carmakers’ SEP Licensing “Unfortunate,” US DOJ’s Kallay Says, MLex (Oct. 10, 2025), https://www.mlex.com/mlex/amp/articles/2398760.
[37] Request for Comment, supra note 1.
[38] U.S. Dep’t of Justice, Press Release, Justice Department Requires RealPage to End the Sharing of Competitively Sensitive Information and Alignment of Pricing Among Competitors (Nov. 24, 2025), https://www.justice.gov/opa/pr/justice-department-requires-realpage-end-sharing-competitively-sensitive-information-and.
[39] Competitive Impact Statement at 10–11, United States v. RealPage, Inc., No. 1:24-cv-00710 (M.D.N.C. Nov. 24, 2025), ECF No. 160, https://www.justice.gov/atr/media/1419471/dl.
[40] Maureen K. Ohlhausen, Acting Chairman, Fed. Trade Comm’n, Should We Fear the Things That Go Beep in the Night? Some Initial Thoughts on the Intersection of Antitrust Laws and Algorithmic Pricing 10 (May 23, 2017), https://www.ftc.gov/system/files/documents/public_statements/1220893/ohlhausen_-_concurrences_5-23-17.pdf (“Is it ok for a guy named Bob to collect confidential price strategy information from all the participants in a market, and then tell everybody how they should price? If it isn’t ok for a guy named Bob to do it, then it probably isn’t ok for an algorithm to do it either.”).
[41] Competitive Impact Statement, supra note 39, at 7–8 (identifying the problematic data as “rental applications, executed new leases, renewal offers and acceptances, and occupancy estimates and projections”).
[42] Brief of the International Center for Law & Economics as Amicus Curiae at 6, Gibson v. Cendyn Grp., LLC, No. 23-16463 (9th Cir. Dec. 26, 2024), https://laweconcenter.org/resources/icle-brief-to-the-9th-circuit-in-gibson-v-cendyn (“[T]here is no allegation here that Rainmaker’s pricing recommendations to one subscriber are based on the confidential information of another subscriber.”); see also Gibson v. Cendyn Grp., LLC, No. 23-16463 (9th Cir. 2025) (distinguishing software that shares confidential information among competitors from software that does not).
[43] Roger Alford, Deputy Assistant Att’y Gen., U.S. Dep’t of Justice, The Role of Antitrust in Promoting Innovation 8 (Feb. 23, 2018).
[44] Brief of the International Center for Law & Economics as Amicus Curiae, supra note 42, at 6.
[45] William E. Kovacic et al., Plus Factors and Agreement in Antitrust Law, 110 Mich. L. Rev. 393 (2011); 6 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application ¶ 1433 (5th ed. 2020).
[46] Recent litigation involving platform-pricing policies includes Gibson v. Cendyn Grp., LLC, No. 23-16463 (9th Cir. 2025); United States v. RealPage, Inc., No. 1:24-cv-00710 (M.D.N.C.); and FTC v. Amazon.com, Inc., No. 2:23-cv-01495 (W.D. Wash.).
[47] The economic literature identifies several concrete procompetitive mechanisms, including free-rider prevention and investment protection. See Benjamin Klein, Competitive Resale Price Maintenance in the Absence of Free Riding, 76 Antitrust L.J. 431 (2009); Chengsi Wang & Julian Wright, Search Platforms: Showrooming and Price Parity Clauses, 51 Rand J. Econ. 32 (2020). For the principal academic argument against MFNs, see Jonathan B. Baker & Fiona Scott Morton, Antitrust Enforcement Against Platform MFNs, 127 Yale L.J. 2176 (2018). The empirical literature, however, has not borne out the harms they predicted. See, e.g., infra note 49.
[48] Blue Cross & Blue Shield of Wis. v. Marshfield Clinic, 65 F.3d 1406, 1415 (7th Cir. 1995) (Posner, J.); see also Kartell v. Blue Shield of Mass., 749 F.2d 922 (1st Cir. 1984) (Breyer, J.).
[49] See, e.g., Andrea Mantovani, Claudio A. Piga & Carlo Reggiani, Online Platform Price Parity Clauses: Evidence from the EU Booking.com Case, 69 J. Indus. Econ. 422 (2021) (finding only an approximately 2.6% short-run price decrease from removing MFNs, with no statistically significant medium-run effects); Jack (Peiyao) Ma et al., The Price Effects of Prohibiting Price Parity Clauses: Evidence from Global Hotel Chains, Econ. J., (forthcoming) (finding no significant price effects on visible online channels after prohibiting all price-parity clauses, with consumer-welfare gains attributable primarily to channel shifting rather than competitive pricing effects).
[50] United States v. Apple, Inc., 791 F.3d 290 (2d Cir. 2015), cert. denied, 136 S. Ct. 1158 (2016).
[51] Id.
[52] Benjamin Klein, The Apple E-Books Case: When Is a Vertical Contract a Hub in a Hub-and-Spoke Conspiracy?, 13 J. Competition L. & Econ. 423 (2017).
[53] Howard Hess Dental Labs., Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 244 (3d Cir. 2010) (“The rim of the wheel is the connecting agreements among the horizontal competitors … that form the spokes.”).
[54] Bell Atl. Corp. v. Twombly, 550 U.S. 544, 553–54 (2007) (parallel conduct “just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market”).
[55] See Kevin R. Williams, The Welfare Effects of Dynamic Pricing: Evidence from Airline Markets, 90 Econometrica 831 (2022); Juan Camilo Castillo, Who Benefits from Surge Pricing?, 93 Econometrica 1811 (2025).
[56] Org. for Econ. Cooperation & Dev. (OECD), Algorithmic Competition 14 (2023), https://www.oecd.org/daf/competition/algorithmic-competition2023.pdf.
[57] Cody Taylor, The Case for Algorithmic Pricing: Consumer Welfare, Market Efficiency, and Policy Missteps, Mercatus Ctr. Pol’y Brief (May 14, 2025), https://www.mercatus.org/research/policy-briefs/case-algorithmic-pricing-consumer-welfare-market-efficiency-and-policy.
[58] See Cont’l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977); Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007); Lester G. Telser, Why Should Manufacturers Want Fair Trade?, 3 J.L. & Econ. 86 (1960).
[59] Stephanie Assad, Robert Clark, Daniel Ershov & Lei Xu, Algorithmic Pricing and Competition: Empirical Evidence from the German Retail Gasoline Market, CESifo Working Paper No. 8521 (2020).
[60] See, e.g., Husanjot Chahal, Helen Toner & Ilya Rahkovsky, Small Data’s Big AI Potential, Ctr. for Sec. & Emerging Tech. (2021), https://cset.georgetown.edu/wp-content/uploads/CSET-Small-Datas-Big-AI-Potential-1.pdf; Josh Howard & Amit Kara, Data Silos Explained: Problems They Cause and Solutions, Databricks (Nov. 11, 2024), https://www.databricks.com/blog/data-silos-explained-problems-they-cause-and-solutions.
[61] Alden Abbott & Satya Marar, Is Data Really a Barrier to Entry? Rethinking Competition Regulation in Generative AI, Mercatus Ctr. Working Paper (Mar. 31, 2025), https://www.mercatus.org/research/working-papers/data-really-barrier-entry-rethinking-competition-regulation-generative-ai.
[62] European Comm’n, Guidelines on the Applicability of Article 101 of the Treaty on the Functioning of the European Union to Horizontal Co-operation Agreements, 2023 O.J. (C 259) 1, ¶¶ 390–450 [hereinafter 2023 EU Horizontal Guidelines].
[63] U.S. Dep’t of Justice & Fed. Trade Comm’n, Antitrust Policy Statement on Sharing of Cybersecurity Information (2014), https://www.ftc.gov/system/files/documents/public_statements/297681/140410ftcdojcyberthreatstmt.pdf.
[64] Cybersecurity Information Sharing Act of 2015, Pub. L. No. 114-113, div. N, tit. I, 129 Stat. 2935, 2947–59 (2015).
[65] Fed. Trade Comm’n & U.S. Dep’t of Justice, Statements of Antitrust Enforcement Policy in Health Care (Aug. 1996), https://www.ftc.gov/system/files/attachments/competition-policy-guidance/statements_of_antitrust_enforcement_policy_in_health_care_august_1996.pdf; see also Fed. Trade Comm’n, Press Release, Federal Trade Commission Withdraws Health Care Enforcement Policy Statements (July 14, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/07/federal-trade-commission-withdraws-health-care-enforcement-policy-statements.
[66] 2023 EU Horizontal Guidelines, supra note 62, ¶¶ 552–584.
[67] U.S. Dep’t of Justice & Fed. Trade Comm’n, Antitrust Guidelines for Business Activities Affecting Workers (Jan. 2025), https://www.ftc.gov/system/files/ftc_gov/pdf/p251201antitrustguidelinesbusinessactivitiesaffectingworkers2025.pdf.
[68] Aya Healthcare Servs., Inc. v. AMN Healthcare, Inc., 9 F.4th 1102 (9th Cir. 2021).
[69] NCAA v. Alston, supra note 15.
[70] United States v. Am. Airlines Grp. Inc., 121 F.4th 209 (1st Cir. 2024).
[71] See Petition for Writ of Certiorari, Am. Airlines Grp. Inc. v. United States, No. 24-938 (U.S. Feb. 27, 2025), https://www.supremecourt.gov/DocketPDF/24/24-938/350862/20250227152404466_2027-02-27%20American%20Airlines%20Petition%20For%20Certiorari%20with%20Appendix.pdf.
[72] Am. Airlines Grp. Inc. v. United States, No. 24-938 (U.S. June 30, 2025) (mem.).
[73] Commission Regulation 2023/1066, supra note 20; Commission Regulation 2023/1067, supra note 22.
[74] 2023 EU Horizontal Guidelines, supra note 62.
[75] Id. at 18–19, 24–25 (discussing grace periods).
