ICLE Comments, The current landscape of competition and consumer protection law and policy
These comments were submitted to the FTC as part of its hearings on “Competition and Consumer Protection in the 21st Century.” As part of our comments, we note the timeliness of the hearings, given that, despite the vast social benefits generated by companies operating in the digital economy, the ongoing economic transformation has stoked fears amongst members of the general public, the press, and policymakers. This transformation has led to calls for interventionist policies such as heightened antitrust enforcement, sector-specific regulation, and direct intervention against industry concentration.
We further note that there is insufficient evidence and, at best, ambivalent theory to support any of these proposed policies—and in the absence of a strong basis for adopting them, the proposed policies would do more harm than good. Among other things, economies of scale, economies of scope, net- work effects, and the like may bring about larger firms and more concentrated markets along with considerable consumer benefits. And new markets necessarily imply the consolidation of some firms and the exit of others, as competitors vie to come up with the winning paradigm. Against the backdrop of this evolutionary process, it is critical that authorities avoid knee-jerk reactions that may impair the long-term welfare of consumers and firms alike.
Our comment reviews some of the important findings which law and economics scholarship can bring to bear on competition and consumer protection enforcement in this space.