Regulatory Leveraging: Problem or Solution?

Abstract

Worldwide, there are approximately 130 jurisdictions with competition laws. The governmental entities charged with enforcing these laws are typically called “competition agencies,” but many of these entities do things other than competition law. Of the 36 agencies listed in the Global Competition Review’s 2015 annual review, half have responsibilities beyond their competition portfolio. Assume a competition agency that has significant regulatory power, such as the right to review certain mergers before they are consummated. Pursuant to this authority, the agency determines how quickly mergers are cleared, or whether they can proceed at all. This regulatory power is the functional equivalent of the market power that some private firms enjoy. Further assume that the agency has responsibilities beyond its competition portfolio — say, with regard to privacy and data security. A firm seeks the approval of the agency to merge with another company. What should we think if the agency uses its regulatory power in policy domain A (i.e., merger approval) to extract concessions with respect to policy domain B (i.e., privacy and data security)? Is that a good idea or a bad idea? Does your response differ if the agency is using its regulatory authority in policy domain A to obtain concessions that it could not obtain, or could realize only with great difficulty, if it focused solely on the behavior of the firm in policy domain B? What if the agency is using its regulatory authority in policy domain A to obtain concessions in policy domain B that would be unconstitutional if it sought to impose them directly? Does it make a difference if the agency has no regulatory authority over policy domain B? Stated bluntly, is regulatory leveraging a troublesome problem — or a useful solution? We describe leveraging in the private and public sectors; analyze four case studies of public sector leveraging; consider the costs and benefits of regulatory leveraging; and offer several suggestions for increasing the likelihood that leveraging is used for pro-social ends. We also briefly describe the leveraging of regulators.