Economics and the Interpretation and Application of U.S. and E.U. Antitrust Law

Abstract

Part 1 (1) articulates and explains (A) the specific-anticompetitive-intent test of illegality that the study claims is promulgated by the Sherman Act, the object-branch of the test of illegality promulgated by Article 101(1) of the Treaty of Lisbon, and the exclusionary-abuse branch of the test of illegality promulgated by Article 102 of the Treaty of Lisbon; and (B) the lessening-competition test of illegality that the study claims is promulgated by the Clayton Act, the effect-branch of the test of illegality promulgated by Article 101(1) of the Treaty of Lisbon, and the European Merger Control Regulation; and (2) attempts to justify the study’s claims that its operationalizations of those tests of illegality are correct as a matter of law. Part 2 (1) articulates the study’s definition of the concept of “the impact of a choice on economic efficiency,” (2) defines three categories of organizational allocative (economic) efficiencies the study distinguishes and explains why the fact that conduct generates any of these categories of organizational economic efficiency favors its legality under U.S. or E.U. antitrust law, and (3) defines the other categories of economic inefficiency the study identifies and explains why the impact of business conduct on the magnitudes of these categories of economic inefficiency in the society in question is irrelevant to its legality under U.S. or E.U. antitrust law. Part 3 then (1) summarizes the study’s argument for its conclusion that definitions of both classical economic markets and antitrust markets are inevitably arbitrary not just at their periphery but at their core, (2) summarizes the study’s discussion of the concept of a firm’s dominance or economic (market) power and its explanation of why a firm’s economic power could not be inferred from its market share even if markets could be defined nonarbitrarily, (3) outlines the conceptual systems the study develops and uses to analyze the competitiveness of prices and the impact of conduct on the intensity of price competition respectively in individualized-pricing and across-the-board-pricing contexts, and (4) articulates the study’s definitions of (A) the concept of quality-or-variety-increasing-investment competition and (B) the concepts it uses to analyze the impact of conduct on such competition. Part 4 outlines the most salient points the study makes about (1) coordinated conduct and oligopolistic pricing, (2) predatory pricing and predatory investments, (3) horizontal mergers and acquisitions, (4) conglomerate mergers, and (5) various pricing-techniques, contract-clause and sales-policy surrogates for vertical integration, and vertical mergers and acquisitions. The Conclusion describes an important part of the policy-sequel to this antitrust-law study that I have contracted to publish. In particular, the Conclusion outlines the protocol that that sequel will use to analyze the economic efficiency of any exemplar of any category of antitrust-law-covered conduct or of any policy-responses to such conduct.