In this issue:
Withdrawal Symptoms: The Status of Section 2
The handling of cases under the rubrics â€œmonopolization,â€ â€œsingle-firm conduct,â€ or â€œabuse of dominanceâ€ continues to be debated by the competition policy community.
Despite the current rapprochement between the FTC and Antitrust Division, the skirmishing over the report left a sour taste in many mouths and may have been detrimental to the collective influence of the antitrust agencies
It is also an effort to reverse or set aside the adopted lessons of the error cost approach.
The widespread use of the rule of reason can be problematic, however, because of the inability of antitrust agencies and courts to reliably differentiate between pro- and anticompetitive conduct.
The Section 2 Report envisions predictable, principled, and coherent enforcement. Thatâ€™s a noble, if tough to achieve vision, but it is one that has little chance of materializing if antitrust embraces a whole set of conflicting concerns.
Identifying and Remedying Exclusionary Conduct: Microsoft, the DOJ Section 2 Report, and the New Administration
I will comment on two subsidiary but nonetheless critical subjects that the DOJ addressed in the Report: general (as opposed to practice-specific) standards of exclusion and affirmative-obligation (as opposed to prohibitory) remedies.
Given the embarrassing outcome of the Federal Trade Commission/Department of Justice (â€œFTC/DOJâ€) single-firm conduct hearings, it is worth revisiting why the agencies held the hearings and what they were trying to accomplish.
While it was clear that the Administration would not let the Report stand, what remains unclear is what exactly is the single-firm conduct policy of the United States and with respect to that policy what it will advocate internationally.
A sensible consensus view emerged that a necessary condition for anticompetitive harm in an exclusive dealing or de facto exclusive contract is that the contract deprives rivals of the opportunity to compete.