How Can Competition Agencies Use Behavioral Economics?

Abstract

Behavioral economics is both mainstream and timely. The financial crisis raised important issues of market failure, weak regulation, moral hazard, and our poor understanding of how key markets operate. One therefore expects lawyers and economists to bring the current economic thinking to competition agencies, some of which are already taking note. How should the competition agencies respond? This article examines how competition agencies can consider behavioral economics' implications on four levels: first as a gap filler, that is, to help explain “real world” evidence that neoclassical economic theory cannot explain; second, to assess critically the assumptions of specific policies, such as merger review and cartel prosecutions; third, to revisit fundamental questions, such as what is competition and what are the goals of competition law; and fourth, to assess how behavioral economics will affect the degree of convergence of competition law among the over 100 jurisdictions with competition laws today.