> It is not if you cannot prove that the price that the customer pays is now higher.
That's according to a peculiar interpretation of anti-trust law.
“Due to a change in legal thinking and practice in the 1970s and 1980s, antitrust law now assesses competition largely with an eye to the short-term interests of consumers, not producers or the health of the market as a whole; antitrust doctrine views low consumer prices, alone, to be evidence of sound competition.”
It’s strange to call the most prominent view (and the one applied by courts currently) a “peculiar” interpretation. Lina Khan is the one with the “peculiar” view right now. The consumer interest test is preferred because, among other reasons, it is quantitative. Quantitative tests are seen as less able to be abused because some judge has a particular view/vibe. Additionally, the consumer harm test focuses on the consumer which is the ultimate class of people antitrust laws seek to protect. Antitrust laws don’t exist to protect markets, they exist to protect citizens.
I'm using peculiar in the sense of “Particular; individual; special; appropriate.” Distinctive. This may be somewhat archaic. Not in the sense of odd or curious.
Isn't the issue here short term vs long term consumer interest? It's all fine and dandy for consumers to pay lower prices because company A is eating losses to drive company B out of business but what happens after that.
How do you quantify long term consumer interest? We are talking about drastic actions when we are talking antitrust including the complete dismantling of companies in the extreme from the government perspective and a tripling of damages from a private enforcement perspective. How do you justify such drastic measures with a “what if they’re dumping?” approach rather than a rigorous quantitative assessment of impacts on the consumer.
If dumping actually occurs then the government or competitors can sue and win under the current antitrust laws by showing that consumers are now paying more due to the dumping scheme. Lina Khan’s view militates for prospective suits - suits where no consumer harm has yet occurred.
It is peculiar because it was legislated from the bench. Congress made it very clear at the time the legislation was drafted, multiple times, that they considered concentrated markets to be, in effect, a parallel state. Every captain of industry today would become a tyrant tomorrow, if given the power. Textualists and originalists should have smacked down consumer welfare the moment it was proposed.
> Additionally, the consumer harm test focuses on the consumer which is the ultimate class of people antitrust laws seek to protect. Antitrust laws don’t exist to protect markets, they exist to protect citizens.
Citizens stop being consumers when they exit the store. Then they go to work or run their business, whereupon Amazon harms them to the tune of thousands of dollars - all so they can save a penny when they put that "consumer" hat back on. This is ludicrous and self-defeating.
> Quantitative tests are seen as less able to be abused because some judge has a particular view/vibe
Of course, the choice of which quantitative test to use is totally objective too, right? /s
Apple for example copies apps and makes them available as default in iOS. Companies go bankrupt because of it, but it is not monopolistic.
Of course all these are because of the strict legal definitions we have. In spirit I agree with you.