from Part II - The Case for Change
Published online by Cambridge University Press: 18 August 2021
In one respect, neo-Brandeisians are outspoken. They have much to say in diagnosing contemporary antitrust. On their account, the pivot from structuralism to effects has introduced the unwelcome art of prediction into competition law – an inquiry that neither courts nor agencies can reliably make. Creating the illusion of precision, they argue, this approach ensures that some anticompetitive transactions pass muster. Meanwhile, an obsession with price in administering the “consumer welfare” standard leads enforcers to overlook digital platforms that use free or low-cost offerings to achieve frightening rates of growth. Dominant control over infrastructure that is systemically important to the economy results. Presumed efficiencies in vertical integration provide carte blanche for further consolidation. For all of these reasons, reformists insist, we face a concentration crisis today. That is their critique, and – in that respect at least – they are clear.
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