Antitrust Law and Economics: Volume 21

As readers have noticed, the last several volumes of Research in Law and Economics have consisted of special issue volumes. This will continue. This volume is one of the best. Jack Kirkwood put this volume together with modest assistance from me. I believe this is an outstanding volume and expect to meet the high standard set here in future volumes.

This is the first paper in a volume devoted exclusively to antitrust law and economics. It summarizes the other papers and addresses two issues. First, after showing that the federal courts generally view consumer welfare as the ultimate goal of antitrust law, it asks what they mean by that term. It concludes that recent decisions appear more likely to equate consumer welfare with the well-being of consumers in the relevant market than with economic efficiency. Second, it asks whether a buyer must possess monopsony power to induce a price discrimination that is not cost justified. It concludes that a buyer can often obtain an unjustified concession simply by wielding bargaining power, but the resulting concession may frequently – though not always – improve consumer welfare.

Contrary to conventional thinking about the purposes and effects of antitrust law enforcement, the personal fortune of John D. Rockefeller, Sr., tripled in the wake of the Supreme Court’s May 1911 order dissolving the Standard Oil trust. This paper summarizes alternative explanations for that unexpected outcome, tests them empirically and finds them deficient. Coupled with new evidence confirming that major events related to Rockefeller’s antitrust encounter did not produce statistically significant abnormal returns for the company’s stockholders, we conclude that the market failed to react to news of the trust’s dismantling because investors expected the government’s remedy to prove ineffective.

This paper presents evidence to suggest that despite obstacles that made predatory pricing essentially impossible, the National Cash Register Co. (N.C.R.) managed successfully to deploy an arsenal of non-price predatory strategies that permitted it to consolidate and maintain a nearly complete monopoly of the cash-register trade. N.C.R. took actions to raise the costs and reduce the revenues of its rivals, actions that made sense only to the extent that N.C.R. could recoup their costs through the maintenance of monopoly rents. Our analysis suggests that antitrust prosecution was a significant threat to N.C.R., and ultimately forced the company to agree to abandon its most objectionable practices.

A study of the price discounts granted by Morton Salt Company and other producers of table salt in the U.S. on their sales of table salt to grocery wholesalers and retailers. The discounts were found to be illegal under the Robinson-Patman Act by the Federal Trade Commission and the Supreme Court. The Commission and the Court believed that the discounts were unjustified price concessions granted to “large” buyers, consistent with the concerns of the Robinson-Patman Act. However, the evidence indicates that the most common discount – the “carload discount” – was received by virtually all buyers, regardless of the buyer’s size; the other discounts – “annual volume” discounts – though received primarily by “large” buyers, were likely cost based. The history of the discounts and likely reasons why they were granted are explored in detail.

While the popular image of the Sherman Act is that of a “trust-busting” statute, conduct remedies have been more common than structural relief. This paper evaluates the effect on economic welfare of conduct remedies that have resulted from ten prominent Sherman Act monopolization cases. In general, we find that in some cases the behavioral relief has had no consequence other than the cost of litigation and cost of compliance; in other cases, the remedies probably reduced consumer welfare. Cases studied are United Shoe Machinery, AT&T, Std. Oil of California, IBM, United Fruit, Kodak, Safeway, GM, Jerrold, and Blue Chip Stamp.

In United States v. United Shoe Machinery Corp., United Shoe Machinery (USM) was found guilty of illegal monopolization due to its leasing practices. Existing scholarship on this case largely focuses on the issue of leasing versus selling. In this article, we provide a more comprehensive analysis of this important decision. In addition, we examine USM’s antitrust experience before and after the famous 1953 case. We find that USM’s business practices were largely procompetitive and, therefore, did not warrant condemnation.

Merger review policy among countries varies according to the weight given to consumers relative to producers. When both receive their full welfare weight it is said that the efficiencies defense is fully realized. No well-developed economic rationale has been given for giving more weight to consumers. Such a rationale is given here by considering equity and efficiency both as goods for which there is a willingness to pay. The willingness to pay approach not only provides a rationale for giving consumers greater weight as with, e.g. a price standard, but also shows how in principle the weight is to be derived. The merger of Superior Propane and ICG Propane in Canada raises issues of the tradeoff of equity and efficiency. The willingness to pay approach is applied to this merger as an illustration.

In recent years, antitrust officials have recognized that vertical arrangements can cause competitive harm through two routes: first, they can facilitate collusion among rivals, and second, they can raise rivals’ costs and thereby create barriers to entry or expansion. In this paper, we identify a third and separate pathway: vertical integration allows upstream monopolists to exploit more fully the market power that has already been attained. We explore the implications of this third pathway for antitrust policy.

We propose a method for analyzing mergers that uses product characteristics to identify products that compete with each other. Products that compete with one another are termed competitive-neighbors. This method does not require aggregation or complicated econometric modeling and is based on sound economic theory. The treatment emphasizes the difference between characteristics that are differentiated by their level of quality (vertical differentiation) and characteristics for which tastes differ across consumers (horizontal differentiation).

Under the patent system created by Congress a patent enjoys only a rebuttable presumption of validity. The resulting probability of invalidity has an economic value. The incentive for a challenger to capture that value creates consumer benefit. In contrast, a payment by the patent holder to the challenger to recognize validity changes the congressionally mandated rebuttable presumption into a conclusive presumption. When a patent holder enlarges the reward granted to him by Congress, by paying a potential rival to confess validity, he reduces efficiency and consumer welfare and, therefore, commits a per se violation of the antitrust laws.