Some Thoughts on Monopoly, Markets, and Mergers

Abstract

In assessing the current state of our jurisprudence under section 2 of the Sherman Act' and section 7 of the Clayton Act,2 the problem we confront today is one that has troubled courts, commentators, and counselors from antitrust's very beginning: How to fashion doctrines that not only make economic sense and provide businesses with sufficient flexibility to compete in the real world of the marketplace, but also are administrable as rules of law. Although we have made great strides over the past few decades in fine-tuning doctrine to take account of economic insights and to avoid much of the unduly restrictive rigor of past decisions,3 we have yet to translate these theoretical doctrines into workable rules that lawyers and judges can consistently apply. To deal first with the monopolization offense of section 2 of the Sherman Act, Professor Areeda correctly notes that it is the most elusive of all antitrust offenses, as well as the most dangerous, since it does not require concerted action.4 While the elements of the offense are now well settled-possession of monopoly power and either willful acquisition or willful maintenance of that power5-this formulation is hardly a useful tool either for judicial decisionmaking or business counseling. Just what does it mean to willfully acquire or maintain monopoly