Brother, May I?: The Challenge of Competitor Control Over Market Entry

Journal of Antitrust Enforcement (2015)

23 Pages Posted: 8 Oct 2015

Date Written: 2015

Abstract

Those concerned with restrictions on innovative technologies and business models often decry the stultifying effects of a ‘Mother, May I?’ approach, whereby the innovator needs government permission to enter a market. These are worthy concerns that regulators ought to take seriously. This article focuses on a related issue, which the authors call the ‘Brother, May I?’ problem or the challenge of competitor control over market entry. This problem arises when would-be entrants are effectively required to obtain permission from incumbent competitors to enter or expand within a particular market. Whether it is due to a law or regulation, the decision of a financially-interested state board, or conduct by a monopolist looking to maintain its market power, new entrants to a market generally should not have to get their competitors’ permission to compete. That such permission is effectively required in an increasing number of situations is inconsistent with the free-market principles that ought to guide our economic policies. Three recent appellate victories by the Federal Trade Commission — in North Carolina Dental, Phoebe Putney, and McWane — all in some way involved the need to seek the permission of competitors to enter a market, and this article addresses each case in turn.

Suggested Citation

Ohlhausen, Maureen K. and Luib, Greg, Brother, May I?: The Challenge of Competitor Control Over Market Entry (2015). Journal of Antitrust Enforcement (2015), Available at SSRN: https://ssrn.com/abstract=2670697

Maureen K. Ohlhausen (Contact Author)

Federal Trade Commission ( email )

600 Pennsylvania Avenue, NW
Washington, DC 20580
United States

Greg Luib

Dechert LLP ( email )

1900 K Street, NW
Washington, DC 20006
United States

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