The consumer welfare standard is damaged goods. Its days are numbered. My choice for a replacement is the “Reasonable Competitive Conduct” (“RCC”) standard. The RCC is a hybrid standard that shares some concerns and features of these other standards, including a concern about dominating...

Based on economic analysis that indicates the moderate worker bargaining power when negotiating with employers leads to increases in downstream output and lower prices as well as increases in wages and employment, we propose legislation that establishes an antitrust exemption to permit the...

The burden of proof to determine the “reasonable probability” that a merger violates Section 7 is not clear. Using the insightful puzzlement expressed by the court in the recent Bertelsmann merger case as a starting point, this pedagogical article explains the confusion arising from the fact...

There is currently great intellectual ferment over the proper antitrust liability standard governing allegedly exclusionary conduct under Section 2. This article (which is forthcoming in the Antitrust Law Journal) focuses on the two main competing liability standards: the profit-sacrifice...

There is ongoing controversy over the proper antitrust decision process that regulatory commissions and the courts should use to evaluate various restraints. This controversy entails the question of whether to analyze conduct under a per se rule, the classical rule of reason, the quick look, the...

This paper examines a number of issues in the economics and law of leverage and monopolization through the lens of the Microsoft case. The paper explains how Microsoft's practices can be divided into two categories -- exclusivity and incompatibility. This exclusionary conduct has the effect of...

The DOJ/ FTC Vertical Merger Guidelines (VMGs) were adopted by the FTC in June 2020 by a party-line 3-2 party line over the dissent of the Acting Chair. One might expect that the VMGs will be withdrawn and/or revised, now that there is a Democratic majority. Revision is appropriate because the...

This short note prepared for an OECD meeting in June 2021 examines several antitrust issues involving analysis of potential competition. While the analysis is not new, it is still useful to collect them together in a unified fashion to show how they are related. In this regard, all the analysis...

This article analyzes the effect of credible capacity limitation on the interaction between an incumbent and an entrant. The prospect of price competition deters entry by a less efficient firm with unlimited capacity. If, however, the entrant practices "judo economics" and limits its capacity...