Countervailing Power - Different Rules for Different Markets? Conduct and Context in Antitrust Law and Economics

Abstract

The focus of modern applications of economic reasoning to antitrust concerns has been on the more subtle efficiency or procompetitive dimensions of the scrutinized conduct. When any of these characteristics are discovered, the courts tend to find no antitrust violation.

Two major difficulties arise with this approach. First, efficiency or procompetitive aspects can almost always be uncovered in any corporate enterprise, creating the potential for legitimizing almost all business behavior. Second, the legal conclusions courts reach are typically couched in terms of the business practice itself; therefore, once upheld, that practice is implicitly validated for other unrelated marketplace scenarios. Indiscriminate validations of a wide variety of business practices coupled with an excessively broad range of contexts could prove to have serious anticompetitive ramifications when assessed by more refined economic standards. In this Article, I propose a new analytic framework, one that emphasizes context rather than conduct, thereby avoiding the danger of upholding business practices in dubious circumstances. I demonstrate the efficacy of this model through an antitrust theory of countervailing power, a theory that can be gleaned from five Supreme Court cases that span the history of antitrust law since the passage of the Sherman Act.

Countervailing power analysis focuses on an economic phenomenon in which parties combine in response to a legal concentration of market power that adversely affects them. The antitrust question raised is whether the countervailing combination should be considered an illegal restraint of trade.

The Court typically evaluates the restraint on its own terms, looking only to whether there are competitive dimensions to it, assessing it by the extent to which the defendant's conduct emulates the atomistic model. Regardless of its philosophical approach, the Court does not frame its ruling in terms of how the market interacts with the restraint and whether the legal concentration or other market forces can keep in check any anticompetitive dimensions held by the countervailing combination.

Countervailing power analysis offers one way to assess the restraint's interaction with the marketplace so as to determine whether there are dynamics that will keep the restraint competitive. If those dynamics are discovered, then countervailing power analysis suggests that the practice should be upheld, independent of whether the practice mirrors atomistic behavior. If those dynamics are not found, and the practice is sufficiently anticompetitive by traditional standards, then countervailing power analysis supports its condemnation.

Keywords: antitrust law, economics, Atomistic model, modern populist school, modern market school, Chicago school, countervailing power theory, corporate conduct, business behavior,

JEL Classification: K21, K29, K39, K49