Just a reminder that actually by definition consumer harm is the bedrock standard for antitrust litigation in the US. Scale and market power may be components of an argument for consumer harm, but they are not sufficient in and of themselves.
That is mostly correct. Though I would argue that anti trust law is not primarily concerned with protecting consumer interest (for this purpose serves unfair competition law), but with protecting competition as an institution. Consumer interest is but one measure amongst many to assess the existence of a functioning competition in a certain market.
Yeah, and I think this is fundamentally what's wrong with our anti-trust law. Trying to decide what harms the consumer is far too narrow in scope, and instead we should have some broader goals related to the promotion of markets and competition, rather than just focusing on consumers. e.g.
- competition is good in and of itself, so new entrants should not be harmed and competition should be promoted and monopoly restricted purely on the basis of promoting competition as a policy goal.
- creation of new markets should be viewed as a policy goal in and of itself. Thus if a firm impedes a burgeoning secondary market or new derived market, that impediment should be viewed as a violation of anti-trust law.
- consumer harm is also a factor, but only one of three factors.
IMO, our maniacal focus on consumption while abandoning promotion of production and healthy market competition is behind many of our economic policy blunders.
Antitrust law absolutely does not require consumer harm. Consumer harm came about after Robert Bork wrote his book and convinced SCOTUS that his interpretation of antitrust was correct. In fact, before Robert Bork, Courts tended to view competition as more important consumer harm.
Lack of consumer harm requirement is starting a comeback because it's during monopolization effort, consumers actually benefit from low prices. Once monopoly cements itself, prices tend to skyrocket and quality go down because factors make it very difficult for competitors to emerge.
US anti trust enforcement often looks at consumer harm (which seems to focus on immediate obvious harm, or lack thereof). So adjusting the law such that the anti trust rules are stricter.
The massive consolidation in soo many US industries I think has done a large disservice to the country and long term prospects for the economy by massively reduced competition
Modern US antitrust law is based solely on benefit to the consumer [1]. If the entire population doesn't care about something (by which I assume you mean they are not harmed by it or even benefit from it), then it's not prohibited.
Anti-trust law has gone through a variety of interpretations over the long history of its existence, and I think your characterization of it is incorrect, even under today's recent interpretations.
This suit seems to follow the interpretation of: "it is bad if consumers are being harmed in some way". Having a monopoly position via market share is not a necessary condition for that to happen.
The consumer harm rule of antitrust isn't actually part of the law just how it's been interpreted for a while, but I do agree that's how a conservative court will likely rule.
It's always worth remembering that the European and American legal philosophy on anticompetitive markets are different, and lead to different conclusions.
European law tends to favor maximizing competitors. American law tends to favor maximizing consumer value. At first glance, these can be considered equivalent, but they differ at the margins (which is why, for example, Amazon keeps getting hit with antitrust in France but not in the US).
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