Antitrust Division Policy Director David B. Lawrence Delivers Remarks at Crowell and Moring and King’s College London Sixth Annual EU Competition Law Conference

Remarks as Prepared for Delivery

Good morning. My thanks for that kind introduction and to the organizers for this timely and important event. And thanks to all of you for being here to participate in the transatlantic dialogue on competition policy.

We meet at a time when economic engagement among western nations is more important than it has been in decades. Today’s conflicts around the world remind us why our predecessors over the last century worked so hard to build and grow the partnerships among North American and European nations. We have a shared set of democratic and economic values that unite us in common interest and give us strength around the globe. History teaches that the vision of human liberty at the center of our political and economic systems can overcome any challenge. Today, we are writing our chapter in that story.

That is why events like this are so important. The transatlantic dialogue among competition enforcers helps drive convergence and continuing improvement in our approaches to antitrust enforcement. In so doing, we empower our people in the free markets, we strengthen our domestic businesses to compete abroad and we shine a beacon of freedom, prosperity and opportunity into every corner of the world. That is why the Antitrust Division has long prioritized robust international engagement and will continue to do so.[1]

I am happy to say that we are in a moment of increasing transatlantic convergence in competition enforcement. Just this spring on stage at the ABA spring meeting, Jonathan Kanter, Lina Khan, Andrea Marván and Margaret Vestager all agreed that the relationships among our competition agencies are stronger than ever.

I have seen that firsthand. I spent most of the last few years simultaneously responsible for drafting the revised U.S. Merger Guidelines and overseeing the Antitrust Division’s international relations. I found something remarkable wearing both of those hats. The nuances of U.S. law we dug into as we revised the merger guidelines often rhymed with economic and analytical concepts the international competition community was converging around. In several respects, policy changes we made to more faithfully enforce U.S. laws brought us into greater alignment with other enforcers around the world.

Today, I’ll touch on five areas where the last few years have seen that trend toward convergence: (1) how we define competition; (2) how we approach mergers that risk entrenching dominance; (3) the analysis of mergers involving rivals’ complements; (4) the dangers of monopsony power and (5) our expanding use of a wide range of expertise in investigations and litigation.

Before I do that, a necessary disclaimer. The views I express today are my own and do not necessarily reflect those of the Antitrust Division.

Convergence in how enforcers understand and define competition

The first area of convergence pertains to the most important word in our field: competition. Though separate sovereign nations enforce different laws, I see remarkable similarity and convergence in how we understand the term “competition.”

Our competition laws articulate many different aims of course. The goals of competition law range from country to country. In Lithuania, it’s “freedom of fair competition.”[2] Ecuador seeks to promote “a social, supportive and sustainable economic system.”[3] In the United States, academics have debated the goals of our Sherman Act for half a century. Other U.S. competition laws, like the Department of Transportation’s unfair methods of competition statute, can have more than a dozen stated goals ranging from strengthening small carriers, to promoting efficiency, to avoiding unreasonable concentration.[4]

But whatever ends these laws seek to advance, they all choose competition as the means to reach those ends. And there is an emerging consensus on what competition is — competition is the process of rivalry in which multiple competitors vie to win business.

The opening page of the 2023 Merger Guidelines adopts a competitive process definition. It states that “competition is a process of rivalry that incentivizes businesses to offer lower prices, improve wages and working conditions, enhance quality and resiliency, innovate and expand choice, among many other benefits.”[5] We came to this from studying U.S. law, where the Supreme Court’s clearest statement on competition describes it as the “unrestrained interaction of competitive forces.”[6]

That statement echoes the Competition and Markets Authority (CMA)’s Merger Assessment Guidelines, which also describe competition as a “process of rivalry” that drives productive firm behavior.[7] So too does Mexico's Federal Economic Competition Commission, which views competition as “the rivalry among companies that participate in the same market.”[8] As does France, which emphasizes that competition is a “process by which businesses compete with each other in the marketplace” and that it “gives companies a constant incentive to innovate and improve their productivity.”[9]

International convergence on this definition crystallized just last month at the International Competition Network (ICN) annual conference. The ICN Merger Working Group released a significant revision to its recommended practices on non-horizontal mergers.[10]

Adequate consideration of non-horizontal mergers requires, at the outset, having a definition of competition in mind, so the Recommended Practices (RP) had to define competition. The opening paragraph of the new RP aligns almost exactly with the definition I just read you from the 2023 Merger Guidelines, “competition is a process of rivalry that incentivizes business to offer lower prices, enhance quality and resiliency, innovate, expand choice or improve wages and working conditions.”[11]

And like the Merger Guidelines, the ICN recommendation goes on to state that mergers that lessen competition increase market power.[12] This is a nuanced but important formulation on the connection between competition and market power. When we see a reduction in competition, defined as a process of rivalry, we assume market power will increase. In some cases, we may be able to assess market power directly, but even when we can’t, we know that harm to the competitive process necessarily results in increased market power.

This is the same assumption the U.S. Supreme Court made in the Professional Engineers case — our Congress had faith in the value of competition and assumed it is the best method of allocating resources.[13]

Also key to the definition of competition is understanding what types of competition we care about. And we have seen convergence in the view that while price competition matters, many other dimensions matter as well. The Illumina/Grail case is a great example — a federal court of appeals in the United States agreed with the Federal Trade Commission (FTC) that innovation competition matters. The court recognized that the antitrust laws protect competition in research-and-development markets just as they do in commodity markets.[14] The European Commission (EC)'s decision to prohibit that merger raised similar concerns and underscores the transatlantic alignment around the idea that competition is about much more than price.[15]

Convergence in approaches to protecting dynamic competition from mergers that risk entrenching market power

My second area of convergence is related. We are coming together not only on the idea that competition is a process of rivalry across many dimensions, but also a dynamic process. We can’t be effective competition enforcers if we protect competition only at a single point in time, ignoring the long-term incentives that also drive business decisions and matter to our economies.

The ICN Recommended Practices I just mentioned cover this issue in detail. They explain that non-horizontal mergers can raise concerns based on dynamic effects beyond static exclusionary effects, including raising barriers to entry or expansion and reinforcing network effects.[16] And they discuss how enforcers should consider the potential for a merger to entrench market power.[17]

There have been times in the past when the U.S. agencies may not have agreed with that view of the entrenchment of dominance. At times, the U.S. agencies have opposed even the consideration of entrenchment theories. But the U.S. signed on to this statement as a reflection of an increasingly thorough and systematic understanding of the law and economics of entrenchment developed at the agencies over the last decade.

We are now in what I think of as the third era in the history of the Antitrust Division’s approach to entrenchment theories in merger review.

The first era was in the 1960s and 1970s, when the agencies actively pursued entrenchment cases and the U.S. Supreme Court recognized that “raising entry barriers” around an already dominant position was anticompetitive for purposes or the Clayton Act.[18]

Beginning in the 1980s, the agencies sought to avoid discouraging mergers that purported to promote efficiency.  The agencies entirely discarded entrenchment of power as a concern in merger review, including when reviewing mergers by powerful firms, rather than carefully apply the law to target exclusionary entrenchment. The 1982 and 1984 Merger Guidelines purged any mention of “entrenchment,” and the U.S. pursued no entrenchment cases for forty years, criticizing agencies around the world that did so. Over time, criticism developed that this approach swung the pendulum too far and marked an underenforcement era.

Finally, in the modern era, the agencies have developed a more systematic and nuanced approach to entrenchment in the United States targeted at mergers that threaten exclusion harmful to competition. This third era began in the years following the release of the 2010 Horizontal Guidelines, which added a concern with mergers that “entrench . . . market power” without explaining further.[19] Then in the last administration, we saw the U.S. articulate its first entrenchment theory in a legal pleading in decades. In challenging Visa’s acquisition of payment technology provider Plaid, the Antitrust Division alleged that the merger would “raise . . . entry barriers . . . entrenching Visa’s monopoly power.”[20] Visa abandoned the merger shortly thereafter.[21]

The 2023 Merger Guidelines documented the U.S. agencies’ evolution into this third era. Like the ICN Recommended Practices, Guideline 6 describes concerns with mergers that threaten to entrench or extend a dominant position by erecting further entry barriers around market power. The Guidelines explain that the long-run incentives market power creates towards its preservation are at the core of concerns that mergers raising barriers to entry can entrench market power. And they state that the “agencies distinguish anticompetitive entrenchment from growth or development as a consequence of increased competitive capabilities or incentives.”[22] This balanced approach better reflects the Supreme Court’s decision in Procter and Gamble read in the light of the subsequent Cargill v. Monfort, which recognized that while lower prices are not an antitrust violation, behaviors can be “anticompetitive” in the long run even when their “short-term effect . . . may be to stimulate price competition.”[23]

This is a remarkable example of the concept I mentioned earlier about U.S. law rhyming with an emerging international consensus. With respect to entrenchment cases, the divergence between the United States and other parts of the world resulted not from differences in our legal regimes, but from decisions the U.S. agencies had made to ignore the laws on the books. Better respecting the precedents of our Supreme Court on the issue has brought us closer into alignment with our international counterparts.

The recently abandoned Adobe/Figma merger illustrates the converging modern approach to entrenchment. The merger threatened to cement the dominant position of Adobe’s software suite, raising exclusionary barriers to competition against Adobe’s already-powerful position. The CMA, EC and the Justice Department all raised concerns — reflecting their shared understanding of these threats — and the parties abandoned the deal.[24]

Convergence in recognition of the dangers of anticompetitively obtained monopsony power

My third example is another area where transatlantic convergence and longstanding Supreme Court precedent meet. Almost 80 years ago, the U.S. Supreme Court recognized that the antitrust laws protect competition in input markets.[25] It held that beet farmers who were the victims of monopsony power had a claim under our Sherman Act. “The Act is comprehensive in its terms and coverage,” the Supreme Court said, “protecting all who are made victims of the forbidden practices by whomever they may be perpetrated.”[26] Just three years ago, the Supreme Court reaffirmed this principle in a case involving student athletes.[27] One Justice explained that “price-fixing labor is ordinarily a textbook antitrust problem because it extinguishes the free market in which individuals can otherwise obtain fair compensation for their work.”[28]

Until recently, however, the agencies rarely applied that principle. Our revised guidelines reflect a shift in enforcement priority in the United States. We now recognize the importance of protecting farmers, workers and other creators and sellers from monopsony power. Pursuing a monopsony theory, the Justice Department recently won its first-ever trial to block a merger based on harms to labor markets.[29] The court agreed with the division that the merger of two publishers would reduce competition for authors’ books and decrease the advance payments authors receive for their work.[30]

We see this emphasis on monopsony power reflected more and more prominently by competition enforcers around the globe. In 2022, Canada made wage-fixing and no-poach agreements criminal offenses.[31] This spring, the EC released a competition policy brief on labor markets, explaining that most wage-fixing and no-poach agreements qualify as restrictions under Article 101.[32] In doing so, the EC emphasized that such agreements not only suppress workers’ wages, but may also lead to slower GDP growth, less dynamic labor markets, and less innovation. The CMA has also initiated its own labor market investigations[33] and recently completed a study of labor market competition, finding that wages are 10% lower in the most concentrated labor markets compared to the least concentrated ones.[34]

Convergence in approaches to conduct that harms rivals’ ability to compete

Next, we see convergence as to the treatment of vertical mergers, which are probably better understood economically as mergers involving rivals’ complements. It is complementarity with rivals’ products that underlies foreclosure concerns, whether or not the merging firms have a vertical relationship. Or to use the more accessible phrasing of the new Merger Guideline 5, these concerns arise when a merger involves products or services rivals “use to compete.”

The new ICN RP closely align with much of Guideline 5 of the new Merger Guidelines. Both documents consider foreclosure concerns whenever rivals’ complements are acquired, and both use the more accessible framing around products or services rivals use to compete.[35]

Both documents also underscore that foreclosure can involve behaviors far beyond raising rivals’ costs through price increases. In the words of the ICN RP, agencies should consider “a wide range of foreclosure mechanisms and effects on all dimensions of competition.”[36] This is an incredibly important consideration because different means of foreclosure have different costs to the merged firm. Vertical math may suggest a price increase on rivals would be unprofitable because of lost sales, even when delaying shipments to rivals or reducing the quality of their supply could be profitable. A price-focused approach to Raising Rivals' Costs leaves too large a blind spot for mergers that could harm competition through other means of foreclosure.

Convergence in expanding the types of expertise agencies rely on

My final area of convergence is on the tools of the trade. We all recognize that competition enforcement has to adapt to new market realities, and that requires upgrading the breadth of expertise we rely on as enforcers.

The CMA has been a leader in this effort, building out an impressive Data, Technology and Analytics unit. Their team includes not only economists and data scientists but data engineers, behavioral scientists, and digital forensics specialists. At the Justice Department, we have likewise expanded the breadth of our expert analysis group, bringing in technologists, data scientists, AI experts, healthcare economists, labor economists and more. Among this talented group, many have significant real-world experience with digital platforms and artificial intelligence, and they have provided incredible insights to our teams, not just about how technology works, but what competition looks like in digital markets.

This expanded expertise has made a difference in cutting-edge issues like artificial intelligence but also in one of the oldest forms of antitrust enforcement: cartel prosecution. We’ve had to adapt our investigations to account for changing technologies that can facilitate collusion without leaving a trail of communications among co-conspirators — for example, ephemeral messaging and pricing algorithms. In response, we’re using new tools to capture evidence in real time, and we’ve hired new investigators to help us proactively detect cartels. Our international partners are doing the same; many of them are building out Intelligence Units focused on proactive detection methods ranging from human sources to cartel screening tools. Together we are adapting to these new enforcement challenges, and we have benefited tremendously from one another’s experiences.

Let me conclude by noting what these areas of convergence have in common. They are each an example of international dialogue equipping independent sovereigns to more effectively enforce their laws for the benefit of their people. Yes, we have different laws, different economies, and different politics. But we build and apply better tools for protecting competition when we share our experiences and debate one another.

Thank you.