'Submission of Robert H. Lande to House Judiciary Antitrust Subcommittee Investigation of Digital Platforms.'

Abstract

The House Judiciary Antitrust Subcommittee asked me to submit suggestions concerning the adequacy of existing antitrust laws, enforcement policies, and enforcement levels insofar as they impact the state of competition in the digital marketplace. My submission recommends the following nine reforms: 1. A textualist analysis of the Sherman Act shows that Section 2 actually is a no-fault monopolization statute. At a minimum Congress should enact a strong presumption that every firm with a 67% market share has violated Section 2. This would move the Sherman Act an important step in the right direction, the direction Congress intended in 1890. My submission contains this textualist analysis, a summary of the economics involved, and an analysis of its implications. 2. Congress should enact Conglomerate merger legislation. The antimerger laws successfully blocked only 3 of the 78 largest finalized mergers (defined as cases where the smaller firm was valued at more than $10 billion) that occurred between 2015 and 2019. The antitrust laws would permit the first trillion-dollar corporation, Apple, to merge with the third largest, Exxon/Mobil. In fact, today every U.S. corporation could merge until just ten were left—so long as each owned no more than 10% of every relevant market. My submission proposes model conglomerate merger legislation that would prevent this. 3. Congress should legislatively resurrect the Supreme Court’s Philadelphia National Bank anti-merger presumption. 4. Congress should forbid common stock ownership of competing firms above specified de minimus limits. 5. Congress should should allow indirect purchaser consumers to sue for damages under the federal antitrust laws. 6. Congress should award automatic prejudgment interest to successful victims of antitrust violations. 7. The U.S. Sentencing Commission should double its presumption that cartels raise prices by 10%. 8. The Department of Justice, in its consent orders, should forbid convicted price fixers from returning to the same industry after prison. 9. Congress should enact antitrust whistleblower legislation.