Rewriting antitrust law for the 21st century
- Dan Primack, author of Axios Pro Rata
Illustration: Aïda Amer/Axios
A bipartisan consensus has emerged that antitrust law is antiquated, written for an analog world of railroad and tobacco giants. The market no longer knows best, but there is not yet consensus on what should come next.
The big picture: Today's antitrust law focuses almost exclusively on the short-term welfare of consumers, in terms of price and product competition. In other words, a merger is problematic — in the broadest terms — if it leads to higher prices or otherwise hurts consumers by severely limiting their choices.
What they're saying:
- President Trump, despite his fondness for all things big, seems averse to large mergers. Just this morning, he voiced concerns over United Technologies buying Raytheon.
- Democrats two years ago introduced a vague framework for 21st Century trust-busting, and "break up big tech" has become a campaign rallying cry in Iowa and New Hampshire.
- Congressional Republicans have begun to get on board, at least with the tech portion, with Sen. Josh Hawley (R-MO) going so far as to wonder: "Should these platforms exist at all?"
The state of play: Legislators must first decide if they only want to revise antitrust law as it applies to Big Tech platforms, or if they also want to address consolidation in areas like health care, agriculture, etc.
Many argue that key for either approach would be to redefine market power.
- First, by recognizing that some competition (i.e., Google and Facebook fighting for ad dollars) doesn't always suffice. Two or three companies engaging in predatory pricing, for example, shouldn't be elevated above one company doing it.
- Second, by looking at both sides of the pricing equation. Not just what consumers are charged, but also what suppliers are paid and the results of cross-sector integration. The idea here is to be more holistic, as consumers can be hurt at places beyond the register (e.g., lost wages, jobs, etc.).
- Third, by trying to divine how markets will look in the future. This is a bit squishy, but goes beyond pricing guarantees. For example, what if regulators in 2012 had tried to understand what Facebook/Instagram would look like a decade out, rather than contemporaneously?
In terms of tech specifically, there could be moves to reclassify certain platforms and infrastructure as utilities. Not public ones, but rather a new category for the digital age.
- Part of this also could supplement "price" with "data," when determining consumer welfare.
- Plus explicit realization that the current focus on short-term price only serves to perpetuate big tech dominance, as consumers don't pay direct dollars for services like Google, while Amazon's size helps it lower prices (at least in the short-term).
The bottom line: We're not yet near new antitrust rules, which is why the immediate noise will be about stepped-up enforcement. But that's not a status quo that's likely to keep.