Published on March 30, 2020
At the invitation of the House Subcommittee on Antitrust, Econ One’s managing director Hal Singer submitted answers to questions about the scope of antitrust in policing anticompetitive conduct in the digital marketplace. In particular, the Subcommittee asked Dr. Singer three questions: (1) Whether existing antitrust laws are adequate to address any potentially anticompetitive conduct; (2) Whether existing laws are sufficient to address potentially anticompetitive vertical and conglomerate mergers, serial acquisitions data acquisitions, or acquisitions of potential competitors; and (3) Whether the institutional structure of antitrust enforcement is adequate to promote the robust enforcement of antitrust laws. Dr. Singer explained that antitrust is not a perfect solution for addressing certain categories of potentially anticompetitive conduct, particularly the problem of self-preferencing by the dominant tech platforms. He also described why existing antitrust laws are inadequate at assessing and anticipating the cumulative harm of a series of seemingly inconsequential mergers. With regard to remedies, he advocated for the Federal Trade Commission or some new digital agency to be authorized to enforce a new nondiscrimination standard, and for merger statutes to be refined to make vertical acquisitions under certain fact patters (such as by dominant platforms) to be presumptively illegal, thereby shifting the burden of proof onto the merger proponents.