Roughly a year into control of the federal antitrust agencies, President Biden’s antitrust team is turning its attention to policies and enforcement practices. They seem poised to start, as antitrust so often does, with market definition. This is an appropriate target for review but also perilous territory for the administration. Even slight missteps in market definition could spell disaster for broader enforcement objectives. To help policy work start from a solid foundation, this essay identifies seven common myths of market definition and explains how to avoid them.

By Sean P. Sullivan[1]

 

Roughly a year into control of the federal antitrust agencies, President Biden’s antitrust team is turning from lofty goals and aspirations to the honest work of converting those objectives into practicable policies and enforcement practices. They seem poised to start, as antitrust so often does, with market definition.

The DOJ’s and FTC’s recent Request for Information on Merger Enforcement asks sixteen questions about whether and how the Agencies should revise market definition.[2] It implies interest in revising market definition under other headings as well.[3] Individual remarks by Assistant Attorney General Kanter highlight market definition as a special target of reform efforts.[4] And market definition and market structure analysis are among the subjects addressed in a recent wave of proposed antitrust legislation in Congress.[5]

Market definition is an app

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