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The field of antitrust and labor has gone through a profound change in orientation. For the great bulk of its history, labor was viewed by antitrust enforcers as a competitive threat. The debate over antitrust and labor was framed around whether there should be a labor \"immunity\" from the antitrust laws. In just the last decade, however, the orientation has flipped. Most new writing views labor as a target of anticompetitive restraints imposed by employers. Antitrust is increasingly concerned with protecting labor rather than challenging its conduct. Antitrust interest in labor markets is properly focused on two things. The smaller concern is the impact of anticompetitive restraints in the labor market, such as anti-poaching agreements and noncompete covenants. While antitrust enforcement in this area is critically important, these restraints cover only a portion of the employment market. The bigger labor interest is in output-reducing restraints in product markets, and here antitrust policy has unfortunately had little to contribute. The demand for labor is derivative of product-market demand. If firms do not produce goods, workers do not work. Because most labor is a variable cost, the demand for employment varies with product output. As a result, when antitrust pursues a goal of higher output in product markets, it benefits labor and consumers alike. Both antitrust's neoliberal Right and its progressive Left have advocated policies that are harmful to labor. The Right did so by developing a cynical vision of \"consumer welfare\" that incorporated producer profits into the definition and advocated for lower output in product markets. The Left has done the same thing with its hostility to large firms, even when firm size is dictated by scale economies or network effects, and its protection of small business.

The antitrust enforcement Agencies’ 2020 Vertical Merger Guidelines (VMGs) introduce a nontechnical application of bargaining theory into the competitive assessment of vertical acquisitions. This bargaining theory has much in common with the theory of unilateral effects that is applied to horizontal mergers. The VMGs focus on post-merger price increases requires consideration of a vertical merger’s role in eliminating double marginalization (EDM). The problem occurs when two bargaining firms both have market power but are unable to coordinate their output. Assessing EDM bundles two themes that Ronald Coase developed in his two most well-known articles: “The Nature of the Firm” and “The Problem of Social Cost”. The first argued that the boundaries of a firm are determined by the firm’s continuous search to minimize costs. The second argued that two traders in a well-functioning market will achieve the joint-maximizing solution. Anti-interventionists rely heavily on Coasean arguments that unless high transaction costs get in the way firms will bargain to joint maximizing results. If that is true, then double marginalization will rarely provide a defense to a vertical merger. The law of vertical mergers deals largely with firms that transact with one another routinely, in legally enforceable buy-sell relationships. In a well-functioning vertical market durable double marginalization should be rare.

In 'Apple Inc. v. Pepper', the Supreme Court held that consumers who allegedly paid too much for apps sold on Apple's App Store because of an antitrust violation could sue Apple for damages because they were \"direct purchasers.\" The decision sidesteps most of the bizarre complexities that have resulted from the Supreme Court's 1977 decision in 'Illinois Brick Co. v. Illinois', which held that indirect purchasers could not sue for passed-on overcharge injuries under federal antitrust laws.

Contrary to common belief, large digital platforms that deal directly with consumers, such as Amazon, Apple, Facebook, and Google, are not \"winner-take-all\" firms. They must compete on the merits or otherwise rely on exclusionary practices to attain or maintain dominance, and this gives antitrust policy a role. While regulation may be appropriate in a few areas such as for consumer privacy, antitrust's firm-specific approach is more adept at addressing most threats to platform competition. When platforms exert their market power over other firms, liability may be apt, but remedies present another puzzle. For the several pending antitrust complaints against Google and Facebook, for instance, what should be the remedy if there is a violation? Breaking up large firms that benefit from extensive economies of scale and scope will injure consumers and most input suppliers, including the employees who supply labor. In many situations, a better approach would be to restructure management rather than assets, which would leave the platform intact as a production entity but make decisionmaking more competitive. A second option to breaking up firms would be to require interoperability—and in the information context, mandate the pooling of valuable information. These measures could promote competition and simultaneously increase the value of positive network effects. Finally, this Article examines another aspect of platforms — their acquisitions. For the most salient category of platform acquisitions of nascent firms, the greatest threat to competition comes from platforms' acquisitions of complements or differentiated technologies. Current merger-enforcement tools are ill suited to analyze this new variation on competitive harm. New approaches are required.

Since the Supreme Court's landmark 1963 decision in United States v. Philadelphia National Bank, antitrust challengers have mounted prima facie cases against horizontal mergers that rest on the level and increase in market concentration caused by the merger. Proponents of the merger are then permitted to rebut by providing evidence that the merger will not have the feared anticompetitive effects. Although the means of measuring that concentration as well as the triggering levels have changed over the last half century, this basic approach has remained intact. This longstanding structural presumption has been critical to effective merger enforcement. In this Feature, we argue that the structural presumption is strongly supported by economic theory and evidence and suggest some ways to further strengthen it. We also respond to those who would weaken or eliminate it. Our analysis applies to the modern legal landscape, where the promotion of competition and the protection of consumer welfare are considered the purpose of merger enforcement. We also consider a promising recent legislative proposal that aims to strengthen and expand the structural presumption. In particular, we suggest that the proposal can be improved so as to strengthen merger enforcement, primarily by facilitating the government's establishment of its prima facie case, while staying true to the fundamental goal of antitrust to promote competition.

\"Horizontal shareholding\" occurs when one or more equity funds own shares of competitors operating in a concentrated product market. For example, the four largest mutual fund companies might be large shareholders of all the major United States air carriers. A growing body of empirical literature concludes that under these conditions market prices are higher than they would otherwise be. We consider how the antitrust laws might be applied to this practice, identifying a theory of harm and how it matches the law, examining the issues that courts are likely to encounter, and attempting to anticipate litigation problems. While the current literature on horizontal shareholding does not offer a single robust explanation of how the price increase mechanism works, we show that the \"effects\" test expressed in the Clayton Act does not require proof of the precise mechanism. Further, Section 7's \"solely for investment\" exception typically will not apply. We also briefly discuss special problems of private plaintiff challenges. Finally, we elaborate the two ways that efficiencies are relevant to analysis of such mergers.

The final version of the 2023 Merger Guidelines, which were issued in December 2023, is a vast improvement over an earlier draft—which indicates that the Agencies took the many comments that they received on a draft very seriously. These Guidelines break some new ground that older Guidelines did not address, and make many positive contributions, which this paper spells out. They are also excessively nostalgic for a past era, however, and this may explain their propen sity to treat empirical questions as issues of law: This is one way to insulate these Guidelines from further revision. The excessive reliance on one decision, Brown Shoe, is unfortunate—particularly since that decision has been so often repudiated, even by the Supreme Court itself. This paper pays particular attention to: the Guidelines’ treatment of structural triggers and direct measures of competitive effects; their aggressive position on potential competition mergers; their willingness to weigh a “trend” toward concentration as a factor; and their treatment of serial acquisitions. The Guidelines include a welcome new section on mergers involving multi-sided networks, although their view of networks is too one-sided; and the Guidelines also contain an expanded section on mergers with harmful effects on suppliers—including labor. The Guidelines’ treatment of market definition is likely to lead to underenforcement because they define markets too broadly. Finally, the Guidelines could have made better use of recent retrospective studies—many of which would have provided further support for the substantive positions that the Guidelines take.

Compelled interoperability can be a useful judicial or statutory remedy for dominant firms, including digital platforms with significant market power in a product or service. They can address competition concerns without interfering unnecessarily with the structures that make digital platforms attractive and that have contributed so much to economic growth. Given the wide variety of structures and business models for big tech, “interoperability” must be defined flexibly. Approaches to interoperability begin with the premise that anything that can be organized within a firm can also be organized in a market, and vice versa. The key to a good interoperability solution is to permit individual assets to function competitively where that is preferable but collaboratively when collaboration produces better results. Interoperability can include everything from “dynamic” interoperability, which requires real-time sharing of data and operations, to “static” interoperability which requires portability but not necessarily real-time interactions. Interoperability is not the best remedy in all situations, nor even for all of those that involve digital platforms. For example, it is rarely the best remedy for nondominant assets, even those that are sold on two-sided digital markets. Tested by these criteria, the proposed American Innovation and Choice Online Act falls short. Without assessing a market power requirement, it would compel interoperability of ordinary competitive products, and in ways that are likely to produce significant private and enforcement costs and to encourage substantial free riding without offering any competitive benefit.

As in so many areas of law and politics in the United States, antitrust's center is at bay. On the right, it is besieged by those who would further limit its reach. On the left, it faces revisionists who propose significantly greater enforcement. One thing the two extremes share, however, is the denigration of the role of economics in antitrust analysis. Two of the Supreme Court's recent antitrust decisions at this writing reveal that economic analysis from the right no longer occupies the central role that it once had. On the left, some proposals display indifference to their economic impact on important participants in the economy. The antitrust laws speak of the conduct they prohibit in economic terms, such as \"restraint of trade,\" \"monopoly,\" and lessening of \"competition.\" They do not embrace any particular economic ideology, such as the Chicago school or institutionalism. Nor do they require the use of any particular economic model, such as perfect competition or oligopoly. This openness gives policy makers a great deal of room, but it is not an invitation to economic nonsense. Further, economics should not be a tool for picking a winning interest group and then manipulating the doctrine to get that result. The Supreme Court's 2019 Apple decision slighted the economics of passed-on consumer harm, a central component in analyzing private damages actions for more than forty years, and one that is critical to measuring competitive injury. In AmEx, the Court neglected the kind of transactional analysis that would have uncovered the true injuries in that case, defined the \"relevant market\" in such a way as to make that term economically incoherent, rejected a superior methodology for assessing power in favor of an inferior one, misunderstood completely the meaning and appropriate scope of free riding, and lost sight of the fact that marginal rather than total effects are central. Although the progressive wing of antitrust does a better job of identifying the problems that the competitive economy faces, some of its proposed solutions are calculated to make them worse. The pursuit of business concentration or bigness for its own sake will injure both consumers and labor far more than it benefits small business, who appear to be the intended beneficiaries. A proposal to forbid large platforms from selling their own products in competition with the products of others will harm both consumers and most small businesses, although it will benefit some large firms. When used correctly and without excessive ideology, economics is a powerful, neutral tool for helping people identify injuries to competition and appropriate fixes. Indeed, that is the first and best use of antitrust economics. Both extremes in this debate have ignored the first rule of rational antitrust policy: figure out who is getting hurt, and how.

Contrary to common belief, large digital platforms that deal directly with consumers, such as Amazon, Apple, Facebook, and Google, are not \"winner-take-all\" firms. They must compete on the merits or otherwise rely on exclusionary practices to attain or maintain dominance, and this gives antitrust policy a role. While regulation may be appropriate in a few areas such as for consumer privacy, antitrust's firm-specific approach is more adept at addressing most threats to platform competition.