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Peter C. Carstensen

This chapter addresses merger policy where the merger will enhance buyer power. By forbidding such mergers, it is possible to limit the emergence of buyer power. The chapter shows, first, that such mergers create competitive risks analogous to those created by mergers that increase seller power, but it also focuses on the ways in which buyer side effects are distinct because of potential harms from even modest increases in buyer concentration, the greater durability of buyer power (compared to seller power), and the potential that the effects of such mergers will primarily impact upstream markets rather than the one most directly changed by the merger. This analysis leads to a discussion of buyer side merger analysis including market definition, the market share triggers for concern and the defenses that might be considered. The chapter ends with a review of actual enforcement of merger law with respect to buyer issues in the United States, the EU, and elsewhere in the world. The basic conclusion from that review is that buyer side concerns are significantly under-emphasized in contemporary merger enforcement.

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Peter C. Carstensen

This chapter addresses the choice of goals for competition law and policy. It describes goals based on economic theory (maximizing consumer welfare, aggregate welfare or producer welfare), fairness in the competition and promoting and protecting the competitive process itself. The chapter argues that the last of these options is the best basic goal because neither economic theory nor fairness provide a coherent basis for policy over time given the dynamics of markets and the ambiguity of both economic theory and fairness. But even the goal of promoting and protecting the competitive process is not self-defining because determining the appropriate degree of legal intervention is dependent on the assessment of the risks to the competitive process if there were no intervention. Given the many examples of market failure, the chapter concludes that the legal system must provide significant oversight of the competitive process in order to ensure the long-term viability of the competitive process.

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Peter C. Carstensen

This chapter identifies, describes and evaluates alternative ways to limit or regulate the abuse of unilateral buyer power. The first category is that of more general regulation of conduct which can specifically address strategic conduct by dominant buyers, provide overall regulation of market participants regardless of power, set floors or other constraints on transactions, or provide sponsorship for alternative outlets for producers. The second category involves creating off-setting power in producers either by authorizing producer cartels or permitting integration, vertical or horizontal, by producers. Finally, public authorities can create alternative markets for producers. Each of these strategies has some capacity to limit abusive buyer conduct, but each is also fraught with difficulties both in defining standards and in achieving the goal of constraining buyer abuses. The implication, consistent with Chapter 5, is that remedying buyer power problems once the power exists is likely to have only limited effectiveness.

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Peter C. Carstensen

This chapter describes the harms to competition that can result from the abuse of buyer power. It starts with an analysis of harms resulting from exploitation that include depressed prices, discrimination among producers, uncompensated shifting of risks and costs to producers and the potential that the harms will flow upstream to suppliers of the supplier. It then describes the exclusionary harms that buyer power can cause to competitors of the buyer both as buyers and in any downstream markets where they compete. These practices include exclusive contracts, inducing refusals to deal by producers, most favored nation type clauses in buying contracts and predatory buying practices that increase the cost of inputs to competitors of the buyer. The final part of the chapter argues that abuse of buyer power generally and monopsony in particular is more harmful to the competitive process than is abuse of monopoly.

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Doctrinal foundations of competition law

Assessing the Goals of Antitrust through the Lens of Legal Philosophy

Oles Andriychuk

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The evolution of the economic concept of competition

Assessing the Goals of Antitrust through the Lens of Legal Philosophy

Oles Andriychuk

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The legal theoretical aspects of competition

Assessing the Goals of Antitrust through the Lens of Legal Philosophy

Oles Andriychuk

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The mechanics of balancing

Assessing the Goals of Antitrust through the Lens of Legal Philosophy

Oles Andriychuk

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The normative value of competition

Assessing the Goals of Antitrust through the Lens of Legal Philosophy

Oles Andriychuk

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Practical conclusions

Assessing the Goals of Antitrust through the Lens of Legal Philosophy

Oles Andriychuk