Antitrust Monopolization Regulation World

The Impractical Consumer Welfare Standard

As I mentioned in an earlier post, the CPI/CCIA conference at Harvard Law School last month brought together establishment scholars from the left and right to consider the calls for radical antitrust reform emanating from the Open Markets Institute (OMI), calls that have captured the imagination of some sections of the press and the political classes over the past few years. Former US and EU antitrust enforcers spoke at the last panel of the day, including Bill Baer, who headed the Antitrust Division of the Department of Justice for part of the Obama Administration.

Baer kicked off his remarks by stating that antitrust’s consumer welfare standard — a target of OMI, and much discussed on panels earlier that day in Cambridge — should stay, because it’s the only administrable standard available to antitrust.

But is it?

Antitrust’s consumer welfare standard holds that enforcers should challenge only anticompetitive conduct that threatens to harm consumers. The standard is the product of brutal intellectual clashes in the 1960s and 1970s between antitrust’s old establishment, which favored condemnation of all antitcompetitive conduct, regardless of effects on consumers, and a group of law professors and economists associated with the University of Chicago. These Chicago Schoolers succeeded at convincing courts and enforcers in the 1970s and 1980s that all anticompetitive conduct should be subject to a test for harm to consumer welfare, and condemned only if there is in fact harm to consumers.

OMI has tended to condemn the consumer welfare standard because the standard privileges the interests of consumers over the interests of other groups that may be harmed by anticompetitive conduct, notably workers, who suffer when employment alternatives disappear. But the immediate difficulty created by the consumer welfare standard has been more mundane: consumer welfare is hard to measure. Which makes it strange that Baer should think the standard administrable.

To see why the consumer welfare standard is hard to apply, consider the merger of AT&T and TimeWarner. Let us suppose that the merger would lead to reduced costs (because of the elimination of what economists call double marginalization), some improvements in program quality, because, for example, the combined firm can use viewing data to tailor content, and some increased market power, because TimeWarner can now raise prices to other content distributors safe in the knowledge that if negotiations fail and a blackout ensues, TimeWarner will still be able to continue to supply content to AT&T viewers.

The increase in market power suggests that consumers would be harmed by the deal, but whether that actually happens depends on whether either of two escape valves opens.  First, cost reductions associated with the merger could make consumers better off, even after market power effects are taken into account, if some portion of those cost reductions are passed on to consumers in the form of lower, though still monopoly-power-inflated, prices. Second, even if any cost reductions are not passed on to consumers, the improvement in programming quality might itself ultimately make consumers better off, if the improvement is sufficiently large to offset any increase in prices. Given the existence of these two escape valves, determining whether consumers are harmed by the merger requires enforcers to predict the price effects of the merger, along with the dollar value of the improvements in programming quality brought about by the merger, and to compare the difference between the two, known as “consumer surplus”, with the original pre-merger difference between price and programming value to consumers.

That’s hard, because quantifying the value of programming to consumers requires enforcers to deduce the maximum prices that consumers would be willing to pay for the programming, rather than the real prices that consumers actually are paying.

Indeed, measuring consumer welfare is so hard that in practice enforcers don’t even try to measure it, the law be damned. Instead, they just test to see whether the merger will raise prices, pretending that price increases are a good proxy for consumer harm, which of course they are not. If the value of the product to consumers rises by more than prices, for example, then consumers benefit from the merger. By the same token, a merger could drive down quality — perhaps the union of AT&T and TimeWarner would unleash targeted advertising that actually reduces program quality, for example — to such an extent that consumers would end up worse off from the merger even if the merging firms were to share some of their cost savings with consumers by lowering prices.

Enforcers don’t try to measure consumer welfare because they can’t.  And that tells us something important about whether the consumer welfare standard is as administrable as Baer says that it is: namely, that it isn’t administrable at all. Precisely because it is not clear in any case whether consumers are harmed, antitrust enforcers look to see whether prices would rise instead, since prices, thank goodness, are actually observable. Ostriches can relate.

In fact, enforcers don’t even proxy consumer welfare effects by looking exclusively at prices. Instead, they try to distinguish price effects unrelated to anticompetitive conduct, such as price hikes driven by higher energy prices, or other “exogenous” factors, and price effects that are attributable to the vigor of competition in the market. As I indicated in my earlier post on the CPI/CCIA conference, such an inquiry into what might be called “abnormal price effects” is really an inquiry into profit margins — increases in prices that are not driven by increases in costs.

And here is where the irony, and not just the falsity, of the claim that the consumer welfare standard is the only administrable antitrust standard shines forth. For the rule that antitrust should condemn anticompetitive conduct that increases profit margins is actually the old standard that the consumer welfare standard was fashioned to replace, the very standard in comparison to which the consumer welfare standard is supposed to be an improvement in administrability, practicality, clarity. The covert inquiry into profit margins that enforcers understand when they are supposed to be testing for consumer harm is nothing but the standard of the mid-20th-century golden age of antitrust. That standard prohibited all anticompetitive conduct, regardless whether the conduct harmed consumers or not, so long as that conduct could be expected to lead to, or protect, market power, defined as the power to earn abnormally high profit margins. The supreme inadministrability of the consumer welfare standard is actually expressed in the fact that enforcers don’t even follow that standard as a technical matter, but still follow the old standard that it was supposed to replace.

But if antitrust is still doing what it has always done in testing for abnormal profits, what explains the remarkable declines in antitrust enforcement since the Chicago School shifted antitrust to the consumer welfare standard in the late 1970s? The answer is that Chicago did not just change the standard on paper from harm to competition to harm to consumers, but also changed the burden of proof required to meet any standard. Thus while enforcers have continued covertly to apply the old standard — which looks at profit margins, not consumer welfare — they have done so with a level of skepticism about their own ability to identify increases in margins that did not exist before the triumph of the Chicago School in the 1970s.

To the extent that this skepticism is warranted, the consumer welfare standard is perhaps no more administrable than the margins alternative. But to the extent that the skepticism is not warranted, the consumer welfare standard is less administrable than the margins alternative. The fact that enforcers have sought in the measurement of profit margins a refuge from the challenge of measuring consumer welfare certainly suggests that margins are easier to measure, and that the consumer welfare standard is the less administrable standard. Either way, the consumer welfare standard is not more administrable than the profit margins alternative that came before it.

Another way to see this is to consider the role of the consumer welfare standard in basic antitrust doctrine. Before 1975, antitrust had two kinds of legal tests. The first, called the per se rule, condemned certain kinds of anticompetitive conduct full stop. The second, called the rule of reason, prohibited anticompetitive conduct by firms possessing, or acquiring through anticompetitive conduct, market power, understood to mean the ability to earn abnormal profits. The focus of the rule of reason on actually proving margins did not imply the unimportance of margins to the per se rule, only the willingness of enforcers to invest more time in proving margins in some cases (rule of reason cases) than in others (per se cases), for which latter it was hoped that proof of anticompetitive conduct alone would be sufficient to signal the existence of abnormal profit margins, at least on average.

Comes now the consumer welfare standard in the 1970s, which appears in the doctrine as an additional element required to meet the rule of reason test. Under that new rule of reason, three things were now required: (1) anticompetitive conduct, (2) market power, and now (3) consumer harm. Thus the consumer welfare standard created a compound test, one that requires both proof of abnormal margins and proof of harm to consumers.

But doing two things is not easier than doing just one of those things. The consumer welfare standard does not make it easier to do antitrust, but harder.

I put this point to the panel in Cambridge, but received only affirmations of faith in reply from several panelists, including former FTC chairs Jon Leibovitz and Bill Kovacic. Why does the consumer welfare standard seem to so many — and not just Baer — to be a practical standard? Why, because it’s an empyrean, an ideal, a beautiful but unobtainable thing. And we mistake the clarity of the vision for clarity of practice.

At least for the moment.

(Don’t the consumer welfare and market power (profit margins) elements in the new rule of reason test collapse into the same thing? No, for the same reason that consumer welfare can’t be proxied by price effects. Suppose that market power does allow AT&T and TimeWarner to raise prices after the merger, but also increases the value of programming to consumers by a greater amount. Consumer welfare increases, but margins also rise. Under the old rule of reason, which only looked at market power (profit margins), there is antitrust liability, but not under the new rule of reason, with its requirement of harm to consumers.)

Antitrust Monopolization Regulation

Marginally Everywhere

The Challenges to Antitrust in a Changing Economy conference, put on by CPI and CCIA at Harvard Law School two weeks ago, was an opportunity for today’s antitrust establishment, on both the (center) left and right, to react to recent calls from activists and journalists loosely associated with the Open Markets Institute for a radical increase in antitrust enforcement. In particular, the conference provided a view of how establishment scholars have been processing OMI’s extraordinary influence on progressive thinking, not to mention the national press, over the past couple of years. (I don’t mean “establishment” pejoratively here, but only to signal that these are leading scholars in antitrust law and economics teaching at leading schools.)

The most serious challenge to the antitrust status quo as an intellectual matter has interestingly come not from OMI, but from finance economists, who have shown in recent years that firm margins, which are the difference between revenues and costs, have experienced an abnormal expansion over the past two decades or so, a period that corresponds uncannily to the period over which antitrust enforcement has been in decline. Margins are the profits of common parlance, and the implication of this work is that firms are generating greater profits than they ever could before, and have been doing it both in periods of recession — such as the Great Recession of 2007 — and in periods of economic expansion, such as that taking place right now.

These scholarstop flight economists all — have shown that none of the variables you might think would account for increased profitability, such as increased investment in new technologies, explain this trend. The explanation that leaps out, one that these scholars have not been able to explain away with their data, is that firms have been leveraging the greater market power permitted to them by declines in antitrust enforcement to extract more profits from markets.

This conclusion has been supported by data showing an increase in market concentration over the past twenty years, the absence of expanded margins in Europe, which has not seen a decline in antitrust enforcement, and increased concentration in U.S. labor markets and a corresponding stagnancy in U.S. wages. Much of this evidence, and its implications for antitrust policy, was brilliantly summarized by leading antitrust economist Fiona Scott Morton in her keynote address at the 2018 Mannheim Centre for Competition and Innovation Annual Conference, signalling that the radical spirit of the times might be making its way into the antitrust establishment through the data-rich conduit of the margins work being done by finance economists.

Speakers at the CPI/CCIA conference two weeks ago pushed back against the evidence both of rising margins and of rising concentration. NYU’s Larry White kicked off the day with an attack on the margins evidence. He argued that the finance economists are missing something important that the industrial organization (IO) economists who traditionally have taken the lead in antitrust policy debates learned in the 1970s: namely, that margins can’t be measured.

The trouble, argued White, is that costs are difficult to define. Subtract away the costs of all physical inputs, compensation to workers, and the like, and you still might not end up with an accurate measure of margins, because some of the remaining amount may be necessary — necessary in the way that all costs are necessary to production — to serve as a cushion against an unexpected shock to revenues. Or to compensate innovators, or managers with special skills, and so on.

Invoking noted mid-20th-century IO economist Leonard Weiss, who was long an advocate of greater antitrust enforcement, White pointed out that it was Weiss who in the 1970s finally came to recognize that margin data were unreliable, and concluded that going forward antitrust policy would need to be based on observation of price effects, rather that margin effects. White’s point was that absent an accurate way to measure margins, antitrust policy must make do with looking to see whether prices, rather than margins, are rising abnormally in the economy. And prices, notably, have not been going up abnormally, creating no basis for increased antitrust enforcement. Finance economists, argued White, weren’t around for the bruising quarter-century-long quest to measure margins and relate them to concentration levels that took place in industrial organization economics during antitrust’s Postwar golden age, and therefore are making the same mistakes today that IO economists once made.

The trouble with White’s argument is that it proves too much, because antitrust is through and through dedicated to the measurement and prohibition of anticompetitively-generated margins, whether antitrust is willing to admit it or not. So giving up on the measurement of margins means giving up on antitrust. White himself seemed inadvertently to advertise this point at the end of his presentation. In the final portion of his remarks, White observed that the margins problem rears its head in antitrust today whenever the courts require proof of market power, because market power is the power profitably to raise price above competitive levels, and profits are margins. But precisely because the requirement of proof of market power is ubiquitous in antitrust law — a staple of the “rule of reason” standard applied to both collusion claims under Section 1 of the Sherman Act and monopolization claims under Section 2 — White’s skepticism about the possibility of measuring margins translates into skepticism about the entire antitrust project. Take White’s position seriously, and there should not only be no radical increase in antitrust enforcement, but no antitrust at all.

White likely didn’t see that implication because he believes, as much of the antitrust establishment seems to believe today, that it is possible somehow to use price effects as a substitute for margin effects in deciding whether firms have power over markets. The argument for using price effects goes like this. Instead of trying to identify markets in which price increases are profitable, and then to scrutinize the behavior of firms in those markets to make sure that they are not profiting by actively squelching competition, antitrust enforcers need only look to see whether suspect firms could increase prices over competitive levels in any of the goods they sell. If prices could go up, and statistical analysis shows that the increase would not be due to irrelevant factors such as an increase in input costs, then it is safe to assume that the increase in prices would be due to the anticompetitive conduct. The apparent beauty of this approach is that there is no need to measure margins.

Or is there? What antitrust economists all ought to know, but perhaps don’t want to admit to themselves, is that when they consider price effects they are always also implicitly measuring margins. How? When they control for changes in input prices, of course. Price effects can have many causes, and antitrust is not a price stability regime. Antitrust wants to condemn conduct — like horizontal mergers — that leads to higher prices only when those higher prices are a result of anticompetitive conduct, and not the result of increases in costs. But that just puts any student of price effects in the position of having to distinguish between price effects that are driven by higher margins — the channel through which all anticompetitive conduct affects prices — and price effects that are driven by costs or other extraneous factors. When an econometrician controls for input cost increases, the econometrician is really just measuring margins, implicitly using a metric that expresses margins as revenues less input costs. (The funny thing is that this simple approach to margins is precisely the one that White, and the Chicago School in the 1970s, so roundly criticized the earlier Postwar establishment for employing.)

In other words, margins in antitrust are everywhere, and unavoidable. Indeed, you cannot have antitrust without the measurement of margins, because anticompetitive conduct is uniquely identifiable through the abnormal margins that the conduct makes possible. Anticompetitive conduct that does not increase margins simply is not anticompetitive. Conduct must somehow fail to squelch competition, and therefore fail to enable the firm to extract more value from consumers, in order to be anticompetitive.

Of course, the reverse is not true, higher margins can be caused by factors other than anticompetitive conduct, but that does not permit antitrust to ignore margin effects; the subject of antitrust is precisely margins caused by certain types of conduct. To give up on the ability of economics to measure margins is to give up on antitrust. Despite declines in enforcement since the late 1970s, today’s antitrust establishment has been unwilling to give up on antitrust, and it has dealt with the immense cognitive dissonance associated with practicing a discipline that it believes impossible to practice by using the classic cognitive strategies of denial and avoidance. The establishment today acts as if the show can go on without the measurement of margins, which of course it cannot.

I put this problem to the panel, and the responses were highly instructive. Bruce Kobayashi, current head of the FTC’s Bureau of Economics, stated that “everything” the Bureau does involves the measurement of margins. Antitrust cannot function without it. And White, to his credit, threw up his hands, seemingly agreeing that if the measurement of margins really is impossible, then there can be no antitrust enterprise.

In a way, this debate cuts right to the heart of antitrust’s agony of the past forty years. Until the mid-1970s, antitrust enforcement in the U.S. was vigorous. The Chicago School attack that lowered enforcement was based primarily on radical skepticism about the ability of economic science to identify truly anticompetitive conduct, and that skepticism was in turn expressed in a skepticism about the ability of economics to measure margins. Perhaps finance economists will drive renewed faith in the power of economics to engage in such measurement, but even if they don’t, we need to come to terms with the fact that the actions of IO economists have already spoken louder than their words. In continuing to muddle along measuring margins while professing not to be able to measure them, IO economists have been telling us for the last thirty years that yes, you can measure margins, and run an entire policy sector based on them.

Recognizing that fact may be all we need to cure antitrust of its present timidity.

Antitrust Civilization Despair Monopolization


Some thoughts on one of Brian L. Frye’s Ipse Dixits, devoted to the art market. In the podcast, Tim Schneider explains that high-end galleries won’t even quote prices to wealthy buyers unless the buyers have standing in the social network that is the art market, because who buys now affects the prices that galleries and their artists can demand in the future. In fact, Tim observes, buyers who have the highest art market status often pay the lowest prices for art, because the implicit endorsement created by a purchase is so important to galleries.

The Peculiarity of the Art Market

Brian suggests that there is something odd about this situation, because in a well-functioning market you would typically want price fully to reflect the value that is being exchanged. But I wonder if this is just an illusion created by the way prices are charged in the art market. Price there is denominated in multiple currencies, one being dollars, and the other being prestige. Imagine that a high-profile buyer were to tell a gallery in advance that the buyer will announce at the time of purchase that the buyer believes the artwork to be horrifically bad, that the artist is trash, the gallery worse, and the buyer will liquidate the object itself posthaste upon taking title.

To the extent that this would diminish the prestige of the sale, you would expect the gallery to raise its price, and whatever that higher price would be, less the original prestige-weighted price, would be the dollar value of the prestige itself that the buyer would normally pay for the artwork along with the work’s dollar-denominated sticker price. If the gallery charges $1 million for the work, but would raise that to $1.5 million were the buyer to declare the work trash, then the value of the prestige earned by the sale of the work to the buyer absent the trash talk is $500,000.

Regardless whether the artwork is sold for a price denominated in two currencies ($1 million plus prestige) or one ($1.5 million), however, the artwork is still being sold for a price, and that price represents the total value of the work. The price of the work is always $1.5 million whether $500,000 of that price is paid in prestige or in dollars. The fact that galleries vary their dollar-denominated sticker prices based on buyer identity suggests that they know the prestige value that each buyer can convey and alter their sticker prices accordingly to maintain a constant overall (dollar plus prestige) price. That overall price is doing the job that prices are supposed to do, by representing the total value of the exchange.

One problem with this line of thought, however, is that Tim suggests that there are plenty of wealthy buyers out there who could afford to pay just about any price for art, but can’t even obtain a price quote, let alone a sale, from a high-end gallery unless these buyers belong to the art market network. If dollar-denominated sticker prices for art just represent the true price of the art less the dollar value of the prestige generated by the identity of the buyer, and non-members of the art market network simply have no prestige, then you would expect galleries to be willing to quote prices to them, albeit higher prices that reflect the absence of a prestige offset. That sort of thing happens all the time in consumer markets — a brand might charge one price to the average consumer but give a discount to a celebrity, because association of the product with the celebrity makes it easier to sell the product to others.

The fact that galleries won’t even quote prices to average customers can therefore mean only one thing: that the prestige offset is so high that no one can pay the true, full, prestige-value-inclusive, dollar-denominated price of high-end art. The losses to the galleries from selling to just anyone are so large that no buyer, however wealthy, would be able to compensate the galleries for what they would lose from democratizing the art market.

How can that possibly be so? (And at this point Brian’s intuition that there is something strange about the art market starts to make sense to me.)

Perhaps galleries don’t want just any buyer because modern art is junk, valuable only for the social significance of ownership, and not because it conveys any consumption value at all to its owners in the form of enlightenment, edification, catharsis, or what have you, and in this sense is the purest of Veblen goods. Modern art is junk because anything can be modern art (a point that modern artists admirably concede when they are not, Jeckyll-and-Hyde-like, running about pretending to see greatness in some spatters of paint but not others), and therefore the supply of modern art is infinite. Economists are fond of saying that scarcity is an iron law (there’s no free lunch), but in point of fact modern art, in virtue of the fact that everything counts, is the quintessential unscarce good, the only free lunch, the cornucopia, the bounty unique.

To put a finer point on it, there are about 10 to the 80 atoms in the visible universe. If anything can be modern art, then any of these atoms, plus any combination thereof, can be modern art, which is to say that the available supply of modern art in the visible universe is the power set of all the atoms in the visible universe, or 2 to the power of 10 to the power of 80. The reader might object that surely a hydrogen atom in some distant corner of the universe could never be modern art, or could never be bought or sold as modern art. And perhaps this is true, if we at least require that art be objects here and now on earth. But there are about 10 to the 34 atoms on the surface of the earth, and the power set thereof even larger, and the bounty no less mind-bogglingly great.

That modern art is junk and unlimited in supply explains why galleries cannot sell to just anyone, because things in unlimited supply have a market price of zero. It follows that in order for modern art to have a non-zero price, some method must be found to limit supply. When a firm like DeBeers wants to limit the supply of diamonds, it simply keeps them in the ground, or warehouses them. Supply can here be limited because supply is in a sense already limited. Diamonds are plentiful, but they can in fact run out, and so if DeBeers can own all the diamonds in their plenty, DeBeers can restrict access and in this way make diamonds genuinely scarce. Not so for modern art, however, because the supply of modern art is quite unlimited. To do to modern art what DeBeers does to diamonds, the galleries would need to buy up all the atoms in the universe (or at least on the surface of the earth) and horde them, which of course the galleries can never do.

If the standard method of limiting supply to support price — hording — cannot work for the galleries, then what? Another approach would be to impose standards of quality on art. But in the debased cultural environment in which we live today, there is no agreement about what constitutes good art and bad art. One man’s David is another’s toilet bowl, and vice versa. Were the galleries to impose standards, they would immediately become the old guard, the target of a million culture warriors, and their inventories not long after consigned to the fire sales of bankruptcy.

No. The only solution for the galleries was to tie art to the only thing in its universe that in the modern age remains in truly fixed supply, and that is prestige. Sell membership in an exclusive club. Make the ability to keep up with a constantly changing art market the ultimate secret handshake. Make the art market a luxury market — no different from the market for fancy handbags or sportscars — only more so, governed not just by wealth but by a willingness to adhere to a whole set of social rules. Make it the aristocracy to Prada’s bourgeoisie.

It should come as no surprise that one of the social rules that distinguish the art market from mere luxury markets, a rule Tim describes, is that art buyers must resell art only through the high-end galleries, rather than on secondary markets. Reselling on the secondary market gives any member of the club the right to admit new members, and that is a recipe for disaster, because it increases membership and allows in buyers not vetted by the galleries, buyers who may be equally willing to violate the rules of membership, accelerating damage to the club. Membership increases make the club less elite, which in turn reduces the value of membership to all other members, making each less willing to pay the high prices for art that are a necessary, though not sufficient, condition for membership.

 In the rule against resale on the secondary market one sees particularly starkly that what is sold in the art market is prestige and not art. If what is sold were art, then expanding the market — allowing more people to bid on art — would be desirable for the galleries, because increases in demand increase profits, all else equal. But prestige behaves like a commons — let more people in and everyone suffers — which is why the number one club rule must be to leave it to some governing authority to police access. The galleries are that authority.

Antitrust Issues

This brings me to the antitrust question that Brian poses in the podcast: Is there something wrong with the unwillingness of galleries to do business with buyers who violate club rules by reselling on the secondary market? If what the galleries are selling is art, rather than prestige, then there might be an antitrust case to be made against the galleries, but only if one of two crucial conditions holds.

Either any one art gallery refusing to do business with a reselling buyer must have at least a 75% share or so of the art market (or, more generally, power to profitably raise art prices above the levels that other galleries can charge in the art market). Or there must be some at least circumstantial evidence that galleries have explicitly agreed among themselves not to do business with resellers, and the group of explicitly colluding galleries must collectively have at least a 35% or so market share in the art market (or, more generally, some at least very weak power profitably to raise price). If the former holds — the gallery has a 75% market share or substantial power over price — then a claim for monopolization under Section 2 of the Sherman Act would lie. If the latter holds — a group of galleries with a 35% market share or some at least small amount of power over price have agreed not to do business with resellers — then a claim for concerted refusal to deal under Section 1 of the Sherman Act would lie.

The key to both claims would be recognizing that the buyer becomes a competitor of the galleries when the buyer starts to resell artwork. I have made much of this competitor status of resellers in the context of data-driven price discrimination, although it should be noted that the antitrust case against the art market could not successfully turn on a charge of price discrimination. Price discrimination is emphatically legal under current law in antitrust, unless it consist of volume discounts, something that appears hardly to be the rage in the art market. And even then, there has been almost no enforcement of cases of that kind since the early 1990s. The art market reseller is a competitor, but the antitrust case against the galleries is not that the galleries punish the reseller because the reseller is selling at a discount to buyers who might otherwise receive discriminatory prices from the galleries, since such discriminatory pricing is legal outside of the data-driven pricing context. Rather, the antitrust case is that the galleries punish the reseller because the reseller is competing the price of all art down by democratizing access to the art club.

Both claims require proof of “exclusionary conduct.” The refusal of the gallery (in the Section 2 claim) or the galleries (in the Section 1 claim) to deal with the reseller amounts to an attempt to exclude the reseller from the market by drying up the reseller’s source of supply, satisfying this requirement. (Because the galleries once did do business with the reseller, before the reseller resold, any requirement that the refusal to deal represent termination of a prior profitable course of dealing is also met.)

Harm to consumers is also required by these claims, and here the antitrust case becomes potentially unwinnable. At first glance there does appear to be consumer harm, because all the rich social outcasts suffer from not being able to buy in to the club. But at second glance the harm falls away. For the value of the product is tied to membership, and therefore any attempts by the galleries to exclude competitors who want to undermine membership genuinely count as attempts to maintain the value of the product not just to the galleries but also to the other members, the in-group of buyers who play by the unwritten rules. If the art market democratizes, the value of the art to everyone falls to zero, the club is destroyed, the prestige is destroyed, and all art owners are left with is the junk that once was their scroll and key. So the exclusionary conduct protects the value enjoyed by consumers — indeed, gives the unlimited resource that is modern art its scarcity value — instead of harming consumers.

Antitrust has long distinguished between product-improving conduct that incidentally harms competitors and conduct that serves only to harm competitors, generally exempting product-improving conduct from censure and condemning only conduct that has no such redeeming feature.

A classic example of exempt conduct would be Apple’s introduction of the iPhone into the cell phone market in 2007. Any Apple refusal to license iPhone technology to Nokia may well have been the proximate cause of Nokia’s demise, but that refusal would be no antitrust violation, because the refusal would presumably be necessary to protect the value of the iPhone to consumers. If, the argument goes, Steve Jobs knew in 2005 that he would be forced to share iPhone technology with Nokia, destroying his competitive advantage and thereby his ability to recoup his costs through higher prices, then Steven Jobs would never have bothered to invent the iPhone and consumers would have ended up with nothing. (The intellectual property context is not unique here. Supermarkets would not trouble to exercise the foresight needed to build on land most convenient to consumers, the argument goes, if they could expect to be forced to share access to their real property with competing supermarkets.) 

Similarly, the refusal of the galleries to do business with resellers is key to the ability of modern art to maintain its value as a signifier of elite club membership. The product is social prestige, and denying others the ability to sell access to that prestige is key to maintaining the value of the product. The galleries are harming competitors when they harm resellers, but they are not really harming consumers.

Rich social outcasts might think they would benefit as a group from an end to resale restrictions, but the benefits would be fleeting. The value of the artwork these losers buy, not to mention the social status it confers, would evaporate as more and more losers were to pour into the market, just as the marginal fishing boat destroys the fishery, or the marginal cow destroys the commons. Indeed, the destruction incident to a failure to police entry to the art market is worse — in fact, total — because unlike in fisheries or on town commons, for which the cost of a boat or a cow places a natural limit even on unregulated entry, the near-infinite abundance of modern art means that once the club doors are open the cost of entering can be driven all the way down to zero.

The only thing that could therefore prevent the galleries from winning the antitrust case is shame — the shame of raising as a defense the fact that modern art is junk and that they deal instead in prestige. I suspect that such an admission would have no material effect on galleries’ business. If buyers really are there for the prestige and not the art, as I think is the case, then acknowledging that fact deprives buyers of nothing, and so should have no effect on art prices. But such an admission could have an effect on pride. The galleries do claim to sell art; all really good sellers believe their pitches.

Antitrust Monopolization

Advertising Apologies

Samuel Cook defends advertising on the grounds that it: funds; drives culture; creates competition; and influences, rather than manipulates. I have argued at length against each of these apologies for advertising.

Funding. Yes, advertising does fund newspapers, online search, social media, and many other useful services. But there are better ways to fund services we love, such as charging full price for those services, or voting for government subsidization.

Why are those better funding methods? Because they are less economically wasteful. Funding through advertising involves two kinds of waste.

First, the money that advertisers are willing to pay for advertising represents waste, in the form of profits generated from inducing consumers to pay higher prices for products that those consumers do not actually prefer. In the information age, you don’t advertise to inform, but rather to manipulate (or as Cook would have it, to influence, of which more below), and you should never invest more in manipulation than you can hope to recover from being able to charge higher prices for lower quality products as a result of your promotional efforts. But those higher prices and reduce product quality represent waste — an advertising-induced misallocation of consumer resources. Consumers would be better off paying less for unadvertised products.

The second source of waste from funding through advertising is the expenditure of resources on advertising infrastructure itself. Given that advertising serves only to distort consumer choices, all the money required to actually create advertisements and target them at consumers itself represent a waste — a diversion of productive resources away from more socially valuable uses. Other funding models, such as subscriptions or tax-and-transfer, do not waste resources in these ways.

Suppose, for example, that a newspaper funds itself by selling $1 million worth of advertising. Advertisers would never be willing to spend $1 million on advertising unless they could earn a profit on that investment — through the higher prices for lower quality made possible by the advertising. If the advertisers hope to make a market rate of return on their investment of 8%, then we can infer that consumers lost $1.08 million to advertisers by buying higher-priced, lower-quality advertised products as a result of the advertising sold by the newspaper. To keep things simple, let’s assume that the newspaper offers production as part of its advertising service, so that creation of messages, images, and so on is all included in the $1 million the newspaper charge for advertising. If all these production services cost the newspaper $100,000 to provide, then the newspaper will net $900,000 from its advertising sales that it can spend on news gathering. The net result is that, to fund journalism to the tune of $900,000 using advertising, a total of $1.08 million must be wasted by consumers, and another $100,000 wasted by newspapers, which translates into a total loss to society of $1.18 million.

By contrast, if the newspaper were simply to charge full price to readers, and readers to pay it, then nothing would be wasted in the funding of journalism. Consumers would pay $900,000 for $900,000 worth of newsgathering (or perhaps a little less, to account for the costs of administering a subscription service). Granted, news is a public good for which consumers may not be willing to pay, even if they love it. In that case, the most efficient way to fund newspapers would be through government subsidy. Government would tax those $900,000 from consumers and pay them out to newspapers (less the cost of administering the tax system), again with none of the waste associated with advertising as a funding mechanism.

Would government subsidy be a threat to democracy? Well, it wasn’t for the first hundred years of American democracy, when the federal government heavily subsidized the news by letting newspapers mail paper virtually for free to subscribers through the U.S. Mail, making the American newspaper industry into the envy of the world.

Drives culture. Cook’s argument here is that firms use advertising to convey messages of public importance: “Nike has, for years been on the frontline of effecting social change,” he writes. This is really a variant of the argument that advertising funds socially useful services — here the socially useful service is public messages that promote certain social values. The trouble with this apology for advertising is here again that advertising is a wasteful funding method. Ban commercial advertising, raise taxes by the $3.34 billion that Nike will spent last year on advertising, and then earmark that money for distribution to activist organizations for use in public service advertising campaigns. You would end up with a more powerful public service message, because  Nike’s public service message is weakened by the fact that it’s tied to selling shoes, and consumers would end up better off because many would not be influenced into buying sneakers they don’t need as collateral financial damage associated with Nike’s public service advertising.

Looking beyond this economic argument, it is important to acknowledge here too the many rich critiques of advertising’s influence on culture. Some argue that advertising destroys culture by encouraging people to derive pleasure from consumption. Others argue that it simply crowds out messages that are not tied to commercial ends. Talented young artists simply can’t afford to put up billboards celebrating love, or run Super Bowl commercials celebrating social harmony,  for example, because deep-pocketed advertisers can outbid them for that advertising space every time. Ban commercial advertising, and political advertising — something that I most certainly do not condemn — becomes far less expensive and more common. That’s good for culture and for democracy. The heart of my argument against commercial advertising is not, however, cultural, but economic.

Creates competition. Advertising certainly can create competition, by helping a startup, for example, challenge an entrenched brand. But advertising promotes competition in a way that deprives competition of the virtues we usually ascribe to it. The startup that advertises wins by influencing consumers, not by fielding a better product. When firms advertise to compete, they compete on advertising — which company has the more powerful influence campaign — and not exclusively on the variables that healthy competition is supposed to influence — price and quality.

In a world without advertising, startups have only one way to challenge the incumbent — by offering a better quality product at a lower price. That limitation ensures that competition will tend to minimize price and maximize quality. When firms compete on influence — via advertising — there is no guarantee that the firm that wins will offer the best product at the lowest price; the winner may win instead by advertising best. So while advertising may promote competition, it undermines healthy competition.

True, sometimes a brand is so entrenched that startups cannot enter the market without the aid of advertising, no matter how good their products and how low their prices. But the only solution to this problem that leads to health competition — competition that’s focused on price and quality — is to ban advertising and to use the antitrust laws to break up entrenched brands. Banning advertising itself undermines entrenched brands, because owners of those brands often use advertising to maintain their power. Action under the antitrust laws to compel licensing of iconic trademarks and other intellectual property would undermine brands that are entrenched for reasons other than advertising, such as advantages associated with being first to market. It has been done before.

Influences, not manipulates. Cook takes issue with my characterization of advertising as “manipulative,” arguing that manipulation implies deceit. Good advertising, argues Cook, does not deceive, but rather “shar[es] passion” for a product in a truthful and honest way, “influencing,” rather than manipulating.

Certainly, much advertising influences without deceiving, and any case against advertising must explain what is wrong with such influencing. What is wrong is that truthful, non-misleading advertising can influence consumers into purchasing products that they do not really prefer. Current law regarding advertising, as well as Mr. Cook, assume that the only advertising that can cause consumers to buy products they do not really prefer is deceptive or misleading advertising, which is why the law prohibits misleading or deceptive messaging. But for several decades now, behavioral economists have been quite clear that truthful and non-misleading advertising can also induce consumers to buy products they do not really prefer, by operating on the habit-forming parts of the brain, to the exclusion of the deliberative parts of the brain. Just as countless tourists have died in London by looking — out of habit — in the wrong direction before crossing the street, making an entirely voluntary, though habit-directed, choice to die, even though every last one of them would certainly say that they did not prefer to die, millions of consumers may well voluntarily buy products that they do not really prefer, due to the influence of truthful, non-misleading advertisements that nevertheless appeal to the non-deliberative faculties of the brain.

The trouble with advertising is precisely that advertising influences, in Cook’s sense of the word. My argument is not that influencing itself is wrong. Influence is an essential part of political debate. We want great politicians to move us to be better than we might prefer to be. But commerce is different. The Invisible Hand only works when consumers are in the driver’s seat in markets, imposing their preferences on firms through the choices that they make. Every advertisement that influences a consumer into abandoning those preferences weakens the control of consumers over markets, putting markets into the hands of firms,  and causing markets to serve consumers that much less well.

There is nothing wrong with having a passion for a product and sharing it with other consumers, but when you are paid to do that by a firm, and the firm necessarily uses its funds to give your passion an influence greater than it would ever have were you to express it unaided, as a private citizen, then your passion becomes a method for impoverishing consumers and undermining markets. It becomes a virtuous and well-meaning thing that has been put to wasteful ends.

Antitrust Monopolization

The Monopoly of Cash

Cash is just another input. Concentrations of wealth, concentrations of cash, throw firm surpluses to the wealthy. Deconcentrate wealth, deconcentrate cash, and corporate surpluses will fall more evenly across inputs to the firm.

Antitrust Monopolization

The Euthanasia of the Consumer

Have you ever paid so much for something that you had to wonder whether it was really worth it? What prices would trigger that feeling for you? $25 for toothpaste? $2,500 for a Broadway ticket? Armies of data analysts are working hard right now to help companies identify and charge those individualized prices to you.

This practice, called “price discrimination” in economics jargon, and “dynamic pricing” by industry, was pioneered in its new data-driven form by the airlines, which explains why you feel uneasy telling the passenger sitting next to you what you paid for your ticket. But serious debate about the merits of the practice has coalesced only in the past year around Broadway ticket prices, as charges for the top shows, such as Hamilton, have spiked into the $800 range.

While consumers rage about the practice, two commentators have leapt to its defense. Harvard economist Greg Mankiw claimed to be “happy about” paying $2,500 for a ticket to Hamilton. James B. Stewart, usually a perceptive critic of business practices, seemed to agree in a recent Times column that complaints reflect “anticapitalist bias.”

Dynamic pricing is neither necessary for capitalism nor consistent with it. But the practice does impoverish consumers, which is why they have good reason to be angry.

Mankiw and Stewart want us to believe that dynamic pricing is necessary for what economists call “rationing:” the problem of deciding which of a group of consumers, all of whom can afford to pay a price sufficient to cover the costs of production, should get access to a product when the supply of that product is limited. There are only 1,319 seats in the Richard Rogers theater in New York, where Hamilton plays, but on any given night many more prospective ticket buyers are willing to pay enough to cover the costs of the production. Rationing determines who gets to attend.

There are many ways to ration. Charging a price equal to cost, and providing access on a first come, first served basis, remains a popular approach. Any restaurant that takes reservations follows this approach, as does Southwest Airlines, which allocates many of the best seats on its flights to those who check in first online.

Another approach, which generates additional profits for businesses, is to grant access only to those who can afford to pay the most. This is what airlines do when they charge a premium for first class seats. Economists once argued that this was the best approach, because alternatives required consumers to waste time standing on lines or getting through to a busy phone number. But online reservations systems, which are virtual queues, have more or less eliminated that problem.

One thing that is not required for effective rationing, however, is dynamic pricing. The distinctive feature of dynamic pricing is the charging of different prices to different groups of consumers. But setting a single fixed price, as Broadway shows did until the early 2000s, does just as good a job. To choose 1,319 Hamilton audience hopefuls, charge the single fixed price that only 1,319 of them are willing to pay.

Mankiw was therefore mistaken when he wrote that only because a scalper could charge him $2,500 was there a ticket waiting for him to buy two weeks before showtime. If the theater, or the scalper, had charged the right fixed price, Mankiw’s ticket would still have been right there waiting for him when he went to buy.

But the ticket would have been a lot cheaper. Dynamic pricing is really about profits. Of the 1,319 Hamilton audience hopefuls who can afford to pay the most, some, like Mankiw, who has reportedly earned more than $42 million in royalties on his popular introductory economics textbook, can afford to pay much more than others. Dynamic pricing allows a ticket seller to segment these hopefuls into groups based on characteristics that suggest how much each is willing to pay, and raise price to those groups that are able to pay more. Broadway’s embrace of dynamic pricing has probably played a role in generating the $1.45 billion profit enjoyed by the industry last year.

But so what if consumers pay higher prices, the fact that they are still willing to buy means that they are still benefiting, right? Wrong. Getting a good deal on a purchase is not just a luxury that the economy can do without. It is the essence of what it means to enjoy a product, whether a theater ticket or a loaf of bread.

When consumers pay prices so high that they wonder whether the deal was worth it, the pleasure they get from the transaction is vanishingly small, because they must give up so much in order to gain access to the product. Because consumers still buy at such prices, the economy continues to grow, and indeed profits soar, but consumers are shut out of the fruits, engaged in joyless consumption, paying a pound of flesh for a pound of meat. By charging prices just low enough that consumers continue to buy, firms help consumers to destroy the lived value of their own wealth, which is why dynamic pricing is the euthanasia of the consumer.

Fortunately, this future has not quite arrived — firms are still learning how to categorize consumers into finer and finer groups – so some of us continue to enjoy good deals. Mankiw certainly got one, declaring that his ticket was “worth every penny.” Clearly, the scalper failed to charge him a price anywhere near the maximum he could afford.

One percenters like Mankiw suffer the least from dynamic pricing because there are so few of them, allowing them to hide among the merely affluent, and enjoy prices targeted at this less fortunate group, at least for now. Mankiw’s ticket was probably priced for lawyers or doctors, not forty-millionaires. The rest of us can try to hide too among the less fortunate, but the deals we get will not be as good, because our incomes do not differ as much from the incomes of other buyers in lower wealth segments.

Stewart observes that dynamic pricing “yields bargains along with premium prices.” But he does not seem to realize that these bargains are not by design. That $39 deal Stewart found for the show Donna Murphy was not meant for him, but for the American of median income – $53,889 — for whom $39 for a show is not something to write home about.

As firms get better at segmenting consumers, they will eventually be able to keep Stewart out of the economy seats, and to class Mankiw with other forty-millionaires, charging him enough ($100,000?) to make him think twice about declaring his good fortune to The New York Times.

Far from being anticapitalist, dynamic pricing eliminates some of the benefits of wealth, because it ensures that the more a consumer can afford, the more the consumer will be asked to pay. The practice takes us a step closer to the world of Marxist fable, in which each takes only according to his need. By contrast, rage at dynamic pricing reflects the rather capitalist desire of consumers to get the most out of their hard-earned cash.

So what should shows do? To their credit, shows have not yet used dynamic pricing to set prices as high as they could, which is why scalpers have made huge profits on resale. Rather than listen to Mankiw and try to capture the scalpers’ profits by raising their own prices, hit shows should fight the scalpers tooth and nail, on behalf of their audiences, perhaps by following the airlines in honoring only tickets presented by named purchasers. And then they should do the decent thing and start to charge prices that cover only their costs, including a reasonable return to investors, but not a penny more.

Stewart worries that without dynamic pricing, shows would be unable to pay their investors. But investors are just another production input, like sets or stagehands, each of which has a finite cost. Dynamic pricing is about what to do with what remains after those costs have been covered.

To be sure, profits from dynamic pricing could stimulate investment in more shows, but the profits also cause consumers paradoxically to derive less pleasure from those shows, as they are forced to give up more and more in order to get access to them.

The question, ultimately, is whether the audience should be made to exist for the show, or the show for the audience. Consumers already understand how that question has been answered by the airlines. As dynamic pricing spreads across the economy, from taxis to rental apartments, we must also soon ask that question of the entire economy. Broadway can take a stand. And consumers can either “get used to it,” as Stewart recommends, or rebel.

Antitrust Monopolization Regulation

Whole Food for Thought

An important point that didn’t make it into my opinion article arguing that the FTC should unwind Amazon’s acquisition of Whole Foods is this: Most people don’t buy groceries online today, but eventually they will.

That’s why I wrote that Amazon’s website, along with its voice search service, Alexa, constitute an essential marketing platform, required for future survival in grocery retail. Whole Foods now has a huge advantage over all other grocery retailers in attracting the coming wave of online grocery shoppers, because most people already use Amazon as their default search engine for finding goods to buy online. When these people start embracing online grocery shopping, they’ll log into Amazon to find a way to do that. And all they will find is Whole Foods. Even giant Walmart is unlikely to solve this problem, because its own website attracts far fewer online shoppers.

The central role of online product search to the future of the grocery market explains why Walmart responded to the Whole Foods deal by partnering with Google to offer Walmart items on Google’s Alexa competitor — Google Assistant. Google isn’t dominant in product search, or in voice search, so while that partnership may help Walmart, it won’t eliminate Amazon’s promotional advantage.

If the FTC were to unwind this deal, Amazon could still get into groceries, but only as a search platform, allowing grocery retailers to offer delivery services through Amazon, much as Amazon already opens its fulfillment centers to third party sellers. That would give existing retailers a more equal shot at search visibility on Amazon’s website. If the FTC won’t unwind the deal, it should at least order Amazon to give all grocers visibility, by including their offerings on its website, alongside those of Whole Foods.

True, the Whole Foods deal should lead to more competition in grocery retail for the time being. In order for Amazon to leverage its product search dominance to win market share, it must charge prices low enough to avoid encouraging consumers to give up using Amazon as their search default. That explains why Amazon cut Whole Foods prices immediately after the acquisition. As long as those prices stay low, consumers will stick with Amazon, and as online ordering takes off, Whole Foods will expand its share of grocery retail.

That in itself is a problem, and enough for the FTC to intervene, because it means that Whole Foods will win not by charging better prices or offering a better product, but because it can match the prices and product quality offered by others, and then tip the scale in its favor through its dominance of online product search. Competition realizes its potential only when firms win by charging lower prices or offering products of better quality.

Consumers will end up choosing Whole Foods not because it is better, but because it’s not worse, with visibility on consumers’ favorite product search platform becoming the deciding factor in the decision which grocer to use. The FTC won another case in the 1980s on precisely this ground, arguing that the maker of the ReaLemon brand of lemon juice used its promotional advantage to win market share while charging competitive prices.

A second consequence is that if Whole Foods manages to run the competition into the ground, then it will be able to raise prices eventually. Entering the grocery retail market, even an online market, is expensive, requiring a huge distribution network connecting, among other things, large numbers of suppliers of perishables to the grocer. If Walmart and other grocery retailers disappear, their distribution systems will disappear with them. And any competitor wishing to enter the market in response to eventual price hikes by Whole Foods will have to rebuild distribution from scratch.

Of course, Amazon might fail to capitalize on its advantage. Brand loyalty, or the promotional advantage bricks-and-mortar retailers have in promoting their own online delivery services to consumers shopping in their stores, might cause consumers to gravitate to the retailers they use today when they start shopping more online.

But the promotional advantage created by access to online product search platforms is real, and is likely to play a role in all consumer product markets in the future, if it does not already. The EU was concerned about precisely that when it fined Google $13.7 billion in June for privileging its own product search engine over others in its search results. Until government starts to treat product search as an essential facility or a public utility, an essential playing field that must be level if competition is to take place on the characteristics we care about, like price and quality, this problem will persist.