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CHAPTER 19
AntiTrust Regulation
Antitrust laws, their major impact, and issues surrounding their enforcement, are presented in the chapter. Natural monopolies and their regulation are discussed and critically evaluatde. Information on deregulation in the 1970s and 1980s is presented. The chapter concludes with an analysis of social regulation with an emphasis on the importance of determining its optimal level through cost-benefit analysis.
I. Antitrust Laws
A. Historical background is rooted in the decades following the Civil War, when the corporate form of business began to develop and “trusts” or monopolies were formed in industries such as petroleum, meatpacking, railroads, sugar, lead, coal, whiskey, and tobacco.
B. Questionable tactics were used by some of these trusts, and popular sentiment turned against them. Two mechanisms for dealing with monopolies were developed.
1. Regulatory agencies were formed to control “natural” monopolies.
2. Antitrust legislation was passed to inhibit or prevent the growth of monopolies in other industries.
C. As a result of public resentment against trusts, the Sherman Act was passed 1890.
1. It contains two major provisions:
a. Contracts or combinations in restraint of trade or commerce among the several states or with foreign nations is illegal.
b. Every person who shall monopolize or attempt to monopolize any part of the trade or commerce among the states or with foreign nations shall be deemed guilty of a misdemeanor.
2. Today, the U.S. Department of Justice, the Federal Trade Commission, injured private parties, or state attorney generals can bring suits against alleged violators of the act.
3. Firms found violating either provision of the act could be ordered dissolved by the courts, or prohibited from engaging in the unlawful practices. Fines and imprisonment were possible, and injured parties could sue for triple damages.
D. The Clayton Act of 1914 is an elaboration of the Sherman Act, which was often not explicit enough to be effective. The Clayton Act strengthened the Sherman Act in several ways.
1. It outlaws anticompetitive price discrimination among purchasers when the price differentiation is not based on cost and if it lessens competition.
2. It forbids exclusive or tying contracts in which a producer forces purchasers of one of its products to acquire other products from the same seller or producer.
3. Acquisition of stock in competing corporations is forbidden if it lessens competition
4. Interlocking directorates are not allowed where directors of one firm are also on the board of a competing firm.
E. Also in 1914, Congress passed the Federal Trade Commission Act. This act created the Federal Trade Commission (FTC), an agency designed to enforce antitrust laws and the Clayton Act in particular.
1. FTC investigates unfair competitive practices and, when appropriate issues cease-and desist orders.
2. Additionally, the Wheeler‑Lea Act in 1938 gave the FTC power to police “deceptive acts or practices in commerce.”
F. The Celler‑Kefauver Act of 1950 amended Section 7 of the Clayton Act, which prohibits firms from acquiring the stock of competitors when this would reduce competition. This section had a loophole whereby firms could accomplish their purpose by acquiring the physical assets rather than stock of a competing company, and the Celler‑Kefauver bill closed this loophole.
II. Antitrust issues and their impact have varied throughout the history of antitrust law.
A. There are two distinct approaches to the application of antitrust law—one based on the structure of an industry and the other on the behavior of firms in an industry. Two landmark cases reveal the dilemma.
1. The 1920 Supreme Court decision on the U.S. Steel case led to the application of the “rule of reason.” The Court decided that not every monopoly is illegal if the firm(s) involved did not gain that power unreasonably.
2. In the 1945 Alcoa case the Court held that, even though a firm’s behavior might be legal (Alcoa had control over bauxite reserves, the raw material needed for aluminum), mere possession of monopoly power (90 percent of the aluminum market) violated antitrust laws.
3. These two cases point to a continuing controversy in antitrust policy: Should industries be judged by their behavior or structure?
a. Structuralists claim that monopolists will behave like monopolists, and this economic performance is undesirable.
b. Behavioralists argue that the relationship between structure and performance is unclear.
4. In recent years, the rule of reason has been more dominant. In 1982 the government dropped its 13‑year‑long case against IBM, deciding that IBM had not unreasonably restrained trade. Most recently, the government alleged that Microsoft violated the Sherman Act, not because of its dominance in the industry, but because of its behavior.
B. Defining what is the relevant market is important in antitrust Court decisions.
1. If the market is defined broadly, then a firm’s market share will appear to be smaller.
2. If the market is defined narrowly, then a firm’s market share may seem large.
3. In the Alcoa case, the court used a narrow definition of the relevant market - the aluminum ingot market.
4 The court defined the market broadly in the DuPont cellophane case of 1956 to include all “flexible packaging materials,” waxed paper, aluminum foil, etc. and therefore DuPont, which had a monopoly in cellophane, was not found to violate the law.
C. Other desirable economic goals may conflict with antitrust enforcement.
1. Balance of trade: Should firms be allowed to merge if the merged firm is domestically dominant but is more competitive internationally?
2. Defense cutbacks: Should the government allow defense industry firms that may be losing government funding to merge in order to maintain profitability and employment of workers, despite the concentration such mergers would involve?
3. Emerging new technologies: Should the government permit large firms in several overlapping industries, like entertainment, communications, software, and computer industries, to merge, particularly if these merged firms will hasten development and improve U.S. industrial competitiveness?
D. The effectiveness of antitrust laws is difficult to judge. The government has generally been lenient in applying antitrust laws to firms that have grown “naturally.”
1. Antitrust laws have generally not been applied unless a firm has more than 60 percent of the relevant market and there is evidence the firm used abusive conduct to achieve or maintain its market dominance. An example of a significant case was the 1982 settlement out of court by the government and AT&T (the telephone company). It was charged with violating the Sherman Act by engaging in several anticompetitive actions to keep its domestic monopoly in telephone communications. AT&T agreed to divest itself of its 22 regional phone-operating companies, but was allowed to keep its long‑distance service operations.
2. In 2000, a Federal district court found Microsoft guilty of violating the Sherman Act. The court’s remedy was to split Microsoft into two companies and to prohibit each from in engaging in anticompetitive behavior. Microsoft has appealed the decision to a higher court.
3. Mergers are treated differently, depending on the type of merger and the effect on the industry. There are three types of mergers:
a. Horizontal mergers are between companies selling similar products in the same market. Examples are Chase Manhattan’s merger with Chemical Bank, Boeing’s merger with MacDonell Douglas, and Exxon’s merger with Mobil.
b. Vertical mergers are between firms at different stages of the production process in the same industry. Pepsico’s merger with restaurant chains that it supplies with beverages is an example. (This merger did not prove to be successful and thus Pepsico spun off the restaurant part of the business.)
c. Conglomerate mergers are between firms in unrelated industries, such the merger between Walt Disney Company and the American Broadcasting Company, and the merger between America Online and Time Warner.
4. The Hefindahl index is used as a guideline by the Federal government to decide whether the merger will be allowed. Recall from Chapter 25 that this index is the sum of the squared market shares of the firms in the industry 10,000 would be the index for a pure monopoly (100 squared). Generally, the post‑merger index must be above 1800 and significantly changed by the merger for the government to challenge a horizontal merger. Other factors, such as economies of scale, the degree of foreign competition, the ease of entry of new firms, and whether one of the merging firms is under major financial stress are also considered. Two examples of recently blocked horizontal mergers are the mergers between Staples Office Depot and between WorldCom and Sprint.
5. Vertical mergers are usually ignored unless they are between two firms who are each in highly concentrated industries. A proposed merger between Barnes & Noble and Ingram Book groups was abandoned when it appeared that the FTC was going to take action.
6. Conglomerate mergers have generally been permitted.
7. Price fixing is treated strictly. Evidence of price fixing, even by small firms, can elicit antitrust action. Such violations are called per se violations because they are illegal in and of themselves; they are not subject to the rule of reason. There are several recent examples.
a. Archer Daniels Midland (ADM) admitted to fixing the price of an additive to livestock feed, a sweetener made from corn, and citrus acid.
b. ConAgra and Hormel paid $21 million to settle their roles in a nationwide price‑fixing of catfish.
c. Reebok paid $10 million in damages in a lawsuit in which they were accused by fixing the minimum price that retailers could charge for its footwear.
d. UCAR International was fined $110 million for scheming with competitors to fix prices and divide up the graphite electrode market.
e. Seven international makers of vitamins agreed to pay $1.2 billion to settle a lawsuit that alleged the producers engaged in a 9-year conspiracy to artificially inflate vitamin prices.
8. The Federal government also has strictly enforced the Clayton Act’s prohibition of tying contracts. The government has stopped movie distributors from forcing theaters to “buy” the projection rights to a full package of films as a condition of showing a blockbuster movie. Tying contracts, such as Microsoft “bundling” its Internet Explorer browser with its Windows operating software, was declared illegal.
E. Has U.S. antitrust policy been effective in achieving its goal of promoting competition and efficiency?
1. Antitrust policy has not been effective in restricting the rise of or breaking up of monopolies or oligopolies resulting from internal expansion.
2. Antitrust laws have been more effective against predatory or abusive monopoly power, but the effectiveness has been slowed because of the legal process.
3. Antitrust policy has been effective in blocking anticompetitive merges and prosecuting price fixing and tying contracts.
F. Most economists conclude that antitrust policy has been moderately effective in promoting competition and efficiency. Others, though, believe that with the era of rapidly changing technology, U.S. antitrust policy is anachronistic.
III. Industrial Regulation
A. Natural monopoly
1. A natural monopoly exists when economies of scale are so extensive that a single firm can supply the entire market at lower unit cost than would be achieved by a number of smaller, competing firms. Public utilities, such as electricity, water, gas, local telephone service, and cable TV are examples.
2. Two possible alternatives exist for protecting society in such cases.
a. Public ownership, as occurs with the Postal Service, water systems, many municipal electric systems, etc., is one solution.
b. Public regulation has been the option pursued most extensively in the U.S. Regulatory commissions regulate the prices charged by monopolies.
3. The rationale for public ownership or industrial regulation is that uncontrolled monopoly power can be abused. This is the public interest theory of regulation. The goal of industrial regulation is to allow the public to benefit from the lower costs of a natural monopoly while avoiding the reduction in output associated with an unregulated monopoly.
4. Regulators seek to establish rates that will cover production costs and yield a “fair” return to the enterprise, i.e., price = ATC.
B. Problems with industrial regulation:
1. An unregulated firm has the incentive to reduce its production cost. If a regulated firm lowers its operating costs, the increase in profits will lead the commission to lower its rates so as to reduce profit.
2. Higher production costs are passed on to the consumers in the form of higher rates. A regulated firm might give higher salaries for its workers without an increase in marginal productivity.
3. Although natural monopoly reduces cost through economies of scale, industrial regulation fosters considerable X‑inefficiency.
4. Industrial regulation can lead to continuing monopoly power after the conditions of natural monopoly are gone.
a. Technological changes create potential competition for the regulated industry (trucks compete with trains; cell phones compete with regular phones).
b. Regulatory commissions may protect regulated firms out of the belief that new-entrant competitors would serve only select customers, thus resulting in higher rate for those who do not “pay their way.”
c. Regulators, by blocking entry, may perpetuate a monopoly where natural conditions no longer exist. The beneficiaries of outdated regulation are the regulated firms, their employees and, possibly, some of their customers.
C. Legal Cartel Theory
1. Proponents of this theory contend that regulators guarantee a return to the regulated firms while blocking entry and dividing up the market – activities that would be illegal in unregulated markets.
2. Occupational licensing is an example of this theory in certain labor markets.
IV. Deregulation
A. Deregulation came about in the 1970s and 1980s as a result of the greater acceptance of the legal cartel theory, increasing evidence of inefficiency in regulated industries, and the contention that government was regulating potentially competitive industries.
B. Industries that were deregulated included airline, trucking, banking, railroad, natural gas, television broadcasting, and telecommunications.
C. Controversy surrounds deregulation:
1. One view asserts that deregulation will bring lower prices, more output, and greater efficiency.
2. The opposing view fears that deregulation may lead to excessive competition and industry instability and that vital services may be withdrawn from smaller communities. There is also the fear that lower safety standards may result.
D. Outcomes of deregulation.
1. Benefits to society through lower prices, lower costs, and increased output are estimated at $50 billion annually. The gains come primarily from airlines, railroads, and trucking.
2. Deregulation has lead to technological advances in new and improved products.
3. Past deregulation has led to calls for further deregulation in other industries, for example electricity.
V. Social regulation
A. Social regulation differs from industrial regulation in that it is concerned with the conditions under which production occurs, the impact of production on society, and the physical qualities of the goods produced. Table 32.2 lists the main Federal regulatory commissions engaged in social regulation.
B. There are a few distinguishing features of social regulation.
1. Social regulation is applied “across the board” to many or all industries and affects many people.
2. Social regulation involves government in the details of production. Regulation often dictates the design of products, the conditions of employment, and the nature of the production process.
3. This type of legislation has expanded rapidly in last two decades, one example being the Equal Opportunity Commission that enforces laws against workplace discrimination on the basis of age, race, sex, disabilities, etc.
C. The optimal level of social regulation.
1. While most economists agree on the need for social regulation and that cost-benefit analysis should be used in determining the optimal level, there is disagreement on how to measure the marginal cost and marginal benefit of a particular regulation.
2. In support of social regulation:
a. Although the cost of social regulation is high, the appropriate test is to determine whether the cost exceeds the benefit.
b. The benefits are difficult to measure and are often realized only after time has passed.
c. There are continuing problems that can best be addressed through additional social regulation, for example, greater regulation of certain food products and health care services and insurance.
3. Criticism of social regulation:
a. Many standards are uneconomic in that marginal costs exceed marginal benefits leading to over regulation.
b. Many regulations are poorly written resulting in regulation beyond the original intent.
c. Many rules have unintended side effects, such as lighter fuel‑efficient cars having higher fatality rates.
d. Overzealous, anti-market personnel often work for these agencies.
D. Two reminders:
1. There are costs to social regulation. Social regulation can produce higher prices, stifle competition, and reduce competition.
2. Social regulation can increase economic efficiency and society’s well-being by improving working conditions, removing unsafe products, and reducing pollution.
X. LAST WORD: The Microsoft Antitrust Case
A. In May 1998, the U.S. Justice Department, 19 individual states, and the District of Columbia (the government) filed antitrust charges against Microsoft under the Sherman Antitrust Act.
B. The government charged that Microsoft had violated Section 2 of the act by taking a series of actions that were designed to maintain its “Windows” monopoly;
C. Microsoft denied the charges, arguing that it had achieved success through product innovation and lawful business practices. It also pointed out that monopoly was transitory because of rapid technological advances.
D. In June 2000, the district court ruled that Microsoft’s share of the software used to operate Intel-compatible personal computers was 95 percent of the market, which clearly gave Microsoft monopoly power.
E. Although being a monopoly is not illegal, the court stated that Microsoft had violated the Sherman Act by using anticompetitive means to maintain and broaden its monopoly power. These actions were taken against Netscape’s Navigator and Sun’s Java programming language. The court ruled that Microsoft had illegally tied the Microsoft browser, Internet Explorer, to Windows and provided Internet Explorer at no charge.
F. The court concluded that Microsoft had mounted an attack on competitors and had used actions that trammeled the competitive process through which innovation occurs.
G. The court ordered Microsoft to be split into two companies. These companies were prohibited from entering into joint ventures with one another.
H. In late 2000, Microsoft filed an appeal with a U.S. court of appeals.
I. Under what law and on what basis did the Federal government find Microsoft guilty of violating the antitrust laws? What was the government’s proposed remedy? In mid-2000, Microsoft appealed the district court ruling to a higher court. Update the Microsoft story, using the Internet browser. What is the current status of that appeal? Is it still pending? Did Microsoft win its appeal? Or was the district court’s decision upheld?
Microsoft was found guilty of violating the Sherman Act. The court ruled that Microsoft had taken unlawful actions to maintain its Windows monopoly by tying the Internet Explorer to Windows at no charge. Also under license from Sun, Microsoft developed Windows-related Java software that made Sun’s own software incompatible with Windows. The court’s remedy was to break Microsoft into two companies that were prohibited from entering into joint ventures.
