Some Comments on the Other Contributions to This Antitrust-Policy-Focused Issue

Abstract

This response to the other Articles in this issue acknowledges the importance of some of the obstacles to sound antitrust-policy analysis that others find insurmountable but contends that they can and must be overcome, explains why I think some critiques of my approach are ill-specified and indefensible, clarifies some oligopolistic-conduct-related concepts my study uses about which one contributor poses questions, restates in my terminology the arguments of two contributions that delineate and evaluate particular E.U. antitrust policies and comments on some of the normative claims these two articles consider, and expresses my appreciation of the positive book review that two scholars have supplied.

I want to thank the other contributors to this issue. I will comment first on the two contributions that take positions on antitrust-policy analysis in general or on particular features of my approach to antitrust-policy analysis, then on the paper that focuses on my position on contrived-oligopolistic conduct, next on the two European antitrust-policy studies, and finally on the general review of my study.

The respective authors of the first two papers just referenced have law degrees and Ph.D.s in economics. Both are U.S.-law-school professors.

Prof. Harrison’s paper ¹ argues for three conclusions: (1) It is extremely difficult and perhaps impossible to assess the economic efficiency of an exemplar of antitrust-policy-coverable conduct or an exemplar of an antitrust policy, (2) it may be even more difficult to assess the moral desirability of any such conduct or policy, and (3) efforts like mine to develop an ex ante economically-efficient or morally-desirable protocol for assessing antitrust policies and efforts like mine to identify antitrust policies that would be morally desirable will inevitably fail. I will address each of these claims in turn.

I am not surprised that Prof. Harrison makes the first of the three claims just listed. As I indicated in my study Welfare Economics and Second-Best Theory: A Distortion-Analysis Protocol for Economic-Efficiency Prediction, ² Prof. Harrison is one of the few law and economics scholars who advert to The General Theory of Second Best. In fact, he not only refers to it but also recognizes its devastating implications for the first-best economic-efficiency analyses that virtually all law and economics scholars and most applied welfare economics scholars execute. In his contribution to this issue, Prof. Harrison backs up his claim for the importance of The General Theory of Second Best by pointing out that contemporary economies contain large numbers of Pareto imperfections. In particular, he refers to the existence of imperfections in seller price competition; to externalities of production, not only to the conventionally recognized externalities of consumption but also to the underappreciated externalities that conspicuous consumption generates by causing observers to be envious; to the externalities that those purchases of high-priced goods that are motivated by the buyers’ desire to secure the greater status that at least some members of some cultures give the wealthy generate (since status is relative and one individual’s achieving higher status is associated with the lowering of other individuals’ statuses); and to the external benefits that (higher wages)/(better working-conditions)/(transfers of resources and opportunities to the poor) generate because they satisfy the “external preferences” that some have for others receiving such benefits, and to consumer non-sovereignty. I agree with Prof. Harrison’s claims that polities that have antitrust policies have highly-Pareto-imperfect economies and that The General Theory of Second Best is correct and undermines conventional (first-best) economic-efficiency analyses of all choices including antitrust-policy-coverable choices and antitrust-policy choices.

Although, at one point of his contribution, ³ Prof. Harrison claims that his analysis “is not morality-based,” I think that his second conclusion states that antitrust-policy analysis is made more difficult by the fact that choices that increase economic efficiency may not be morally desirable from a utilitarian and many other normative perspectives—may not increase total “happiness” and may increase poverty and, in doing so, cause those made poor or poorer and their children to suffer morally-costly losses. I also agree with what I take to be Prof. Harrison’s position on these issues.

Prof. Harrison’s third conclusion—reached with real regret—is that the first two conclusions warrant the dismal conclusion that efforts like mine to develop morally-valuable antitrust-policy-evaluation protocols and to identify morally-desirable antitrust policies are doomed to fail. Obviously, I reject this conclusion: Although I acknowledge that evaluators who use my protocol will sometimes reach conclusions that are morally wrong ex post, I subscribe to the obviously-self-serving position that the use of my protocol will be ex post morally desirable. Admittedly, I have a very large dog in this fight. Prof. Harrison has the same dog: as he writes, he has been working on antitrust for over 30 years.

Prof. Hylton’s contribution to this Antitrust Bulletin issue ⁴ criticizes both any effort like mine to use (in his words) “normative ethics” to analyze antitrust policies (to determine whether, in his words, an antitrust policy is “socially optimal”) and my specific conclusion (in his words, not mine) that “market definition is incoherent.” I will respond to each of these criticisms in turn.

Prof. Hylton is concerned (1) that “a study of the moral bases for antitrust regulation” may “not generate specific, practical formulae” for conduct and policy evaluation, (2) that any protocol for antitrust-policy evaluation that attempts to implement “normative ethics” will be “relatively nonrigorous” and “speculative” compared to the scientific economic approach, and (3) that any decision to evaluate antitrust policies explicitly on their moral desirability as opposed to evaluating them on “a scientific basis” by their impact on “consumer welfare” or from a “utilitarian-economic framework” will be morally counterproductive not only (a) because the conclusions that the good faith use of any such moral-desirability-focused evaluation protocol will generate will often not instantiate the moral values it is trying to instantiate (given the protocol’s lack of rigor and speculativeness) but also (b) because the decision to evaluate policies by their moral desirability “opens the door, naturally, to a broader group of theorists of various stripes [broader than a group consisting solely of economists] to opine on optimal antitrust policy and to have their opinions given equal weight, by courts and administrative agencies, to those expressed under the economic framework [which focuses on any policy’s impact on “consumer welfare” and the instantiation of “utilitarianism”] and opens the door as well to “[t]he interest group that is able to command the most resources [and] will be able to find a theoretical perspective that advances their interests more effectively.” ⁵

I have six responses to this argument. First, the utilitarian approach to policy evaluation that Prof. Hylton considers to be “scientific” is normative, not as he seems to be suggesting “scientific,” requires a normative decision to be made about the attributes a creature must possess for its utility to count, is hard to operationalize in that it is, at a minimum, difficult and may be impossible to measure all psychological states by units of utility (utils), and is not only difficult to apply but may, on that account, also be applied in bad faith to suit the applier’s own purposes. Second, although an approach to policy evaluation that deems relevant only the policy’s impact on “consumer welfare” or “consumer surplus” is not normative (because from no morally-defensible moral perspective is a choice’s impact on “consumer welfare” or “consumer surplus” [no matter how defined] the only valued desideratum), the consumer welfare/surplus criterion is underspecified in that it leaves open the question of the identity of the consumers whose welfare/surplus counts (for example, does the relevant set of consumers contain only the potential and actual customers of the perpetrator[s] and the potential and actual customers of the product-rivals of the perpetrator[s] or does the relevant set of consumers contain all members of and participants in the society in question in their capacities as buyers [or possibly an even wider group of individuals in their capacities on buyers]?). Third, I think that I have provided “rigorous,” “non-speculative” operationalizations of the liberal conception of justice and the various non-utilitarian egalitarian conceptions of the moral good, although I acknowledge that some of these moral norms’ extensions cannot be derived deductively from their abstract definitions. (I should point out that, as I have maintained elsewhere, ⁶ many economists and law and economics scholars claim that the only purported norms that are coherent are the utilitarian moral norm and the equality-of-utility moral norm [a conclusion they attempt to justify inter alia by claiming that all other purported moral norms cannot be applied mechanically in the way in which a mathematical formula can be applied].) Fourth, although this attribution may be wrong, Prof. Hylton seems to be assuming that the set of evaluative criteria that deserve to be characterized as “moral” and that are applicable in a given polity is (at a minimum) far broader than I think it is: even if one rejects my claim that one can discern the conception of justice and/or the moral good the society whose extant and possible antitrust policies are to be evaluated is committed to instantiating, not all evaluative criteria can pass moral scrutiny. These observations are salient because they imply (1) that the purported normative “opinions” of many “theorists” are either irrelevant in the polity whose antitrust policies are at issue or morally indefensible and (2) that the set of “theoretical platforms” that the conclusion that antitrust policies must be evaluated morally makes available to interest groups is far more limited than Prof. Hylton seems to be suggesting. I should add that my previous conclusion that the liberal and egalitarian moral norms can be operationalized rigorously and non-speculatively almost certainly would apply to any other decision-criterion that would deserve to be characterized as “moral” so that interest groups would have far less room to maneuver than Prof. Hylton seems to be suggesting they would have. Fifth, a point that is partially against interest: to me, Prof. Hylton seems to be underestimating the difficulty of applying the utilitarian and consumer welfare criteria he deems “scientific” and concomitantly the risk that interest groups would misapply these criteria in bad faith to secure their parochial objectives. Sixth, a response that many may find unpersuasive: if it would be morally desirable to base evaluations of antitrust-policy-coverable conduct and antitrust policies on the moral norms that the relevant polity is committed to instantiating or on defensible moral norms if “theorists” and interest groups would not undermine the effort to do so and officials could be educated to avoid making critical moral errors and selected and incentivized to do their jobs properly, is not the appropriate response to this situation to educate the “theorists’ and officials, to select more able, better-educated, more honest “theorists” and officials, and to provide them with appropriate incentives rather than to use protocols that one knows will lead to morally-undesirable policies being adopted?

Prof. Hylton’s second objection to my study is more narrow but still important. He rejects what he takes to be my conclusion “that market definitions are incoherent.” In fact, that claim does not accurately state my position. What that claim would entail. What I have argued since 1978 ⁷ is that (1) definitions of both ideal economic markets and antitrust markets are inevitably arbitrary not just at their peripheries but comprehensively and (2) it is never morally desirable to base conclusions about the legality of antitrust-law-covered conduct or the economic efficiency or moral desirability of antitrust-policy-coverable conduct or an antitrust policy at all on the magnitudes of market-aggregated parameters such as the market share(s) of the alleged or actual perpetrator(s) or the concentration of the seller side of any allegedly relevant market in which the alleged conduct allegedly took place. Section 3 of my earlier contribution to this Antitrust Bulletin issue summarizes my arguments for these conclusions. I will not repeat those arguments here.

Prof. Wiseman is an economist who is currently the Chair of the Department of Economics at the University of Texas, Austin. Prof. Wiseman is a game theorist who also teaches a course on the moral relevance and policy relevance of various economics conclusions. His contribution to this Antitrust Bulletin ⁸ issue “highlight[s] two questions” about my definition of contrived-oligopolistic conduct that require answers in the interest of clarity. The first question relates to the conditions that must be satisfied for the reaction of an oligopolistic-conduct-sequence initiator to an uncooperative and/or cooperative rival’s response to its initial move to be “inherently unprofitable” for the initiator. In my usage, the calculation of whether such a reaction would be “inherently unprofitable” would take into account all the ways in which the reaction would affect the initiator’s profits. For example, when the reaction is charging a low price to an uncooperative rival’s customers, the calculation of the profits that the low price would yield would take account of the profits the low price would yield the possible contriver inter alia by enabling it to make profitable repeat sales to the buyer charged the low price, by enabling it to make future sales of the product in question and/or other products it produces to other buyers who observe the good performance of the extra unit(s) of the product sold at the low price to the non-cooperator’s customer or who are told of the relevant product-unit’s good performance by the unit’s buyer, by enabling the possible contriver to profit by selling complements of the product for which the low price is charged, by enabling the possible contriver to make profits by selling other members of the product-line to which the low-price product belongs, and conceivably by reducing the cost the possible contriver has to incur to operate in the future. I hasten to admit that I did not explicitly indicate this fact in the discussion of contrived-oligopolistic pricing, although I did discuss these possible sources of profits when dealing with the concept of a seller’s “lowest legitimate price” in the context of analyzing how to establish the predatory character of a price. I should also admit that although my characterization as “inherently unprofitable” reciprocatory decisions by a contriver not to beat one or more contrived-oligopolistic price-containing offers a cooperator made to a buyer the cooperator was best-placed to supply when beating the offer(s) in question would be inherently profitable for the contriver—while correct—is also somewhat misleading in that (as I do say) the contriver would not have the relevant opportunities had it not promised to reciprocate to the rival’s cooperation, and it is relatively costless for the contriver to make and fulfill such promises of reciprocation since the contriver would not be able to realize much profits by making and welching on promises of reciprocation: fool me once, shame on you; fool me twice, shame on me.

Prof. Wiseman’s second question is whether a firm’s decision not to collect information can be contrived-oligopolistic. As he indicates, in Section 9.2 of my Welfare Economics and Antitrust Policy study, I do analyze the conditions under which negative choices a firm makes (1) not to do research (A) into the performance-attributes of its product (and sometimes its rivals’ products) and (B) into the durability and lifetime maintenance-and-repair costs of owning its product (and sometimes one or more rivals’ products) and (2) not to communicate what it knows about these issues (and other externality-related issues) to potential buyers, actual customers, and government officials will be contrived oligopolistic, natural oligopolistic, or non-oligopolistic. The source of Prof. Wiseman’s uncertainty about my resolution of this issue is my infelicitous use of the word “move” when it would have been better for me to use the word “choice.” I hope these responses to Prof. Wiseman’s questions are clarifying and am grateful for his creating the opportunity for me to give them.

Prof. Colangelo is a law and economics scholar who has both a law degree and a Ph.D. in law and economics, teaches in Italy, and is affiliated with the Stanford Law School and the University of Vienna. Prof. Colangelo’s valuable contribution to this Antitrust Bulletin issue ⁹ addresses the efforts that E.U. officials have made to promulgate and apply fairness-promoting (regulations of)/(responses to) antitrust-policy-coverable conduct.

I will make 4 sets of comments that relate to Prof. Colangelo’s contribution. First, as Prof. Colangelo points out, on most understandings of “fairness” as it relates to antitrust policies or antitrust-policy-coverable conduct and certainly on the understanding of such “fairness” that I think is warranted in the European Union (see below), the use of the fairness criterion will often produce different conclusions from those that would be generated by the use of the efficiency criterion, the consumer welfare standard (regardless of how “consumer welfare” is operationalized), and the “impact on competition” criterion (regardless of how that impact is operationalized). These differences reflect the fact that, as understood in the European Union, “fairness” has to do (in Prof. Colangelo’s words) with “social interests” and “ethical goals” such as securing “labor protection,” reducing “wealth inequalities,” “protecting economic liberty” as an aspect of the “freedom” that the European Union is committed to guaranteeing, and (relatedly) securing fair “economic opportunity” for both producers and consumers.

Second, although I grant that, as Prof. Colangelo points out, “notions of what is fair can vary among individuals” (in my judgment, at least as matters of first impression and sometimes even after serious consideration), in polities that have specific moral commitments, “fairness” relates to whether non-government choices and government policies are inconsistent with or fulfill those commitments. I have claimed that a review of the Charter of Fundamental Rights of the European Union, the contemporary German constitution, and the contemporary French constitution (and its constitutional antecedents) supports the conclusion that the European Union and at least those Member Nations are committed to instantiating the liberal conception of justice and (more contestably) some pure or mixed egalitarian conception of the moral good. I have also argued that a review of the U.S. Declaration of Independence, the original U.S. Constitution, the Bill of Rights, the Reconstruction Amendments, and the Nineteenth Amendment supports the conclusion that the United States is also committed to instantiating the liberal conception of justice and (more contestably) a pure or mixed egalitarian conception of the moral good. In my view, these commitments imply that, in the European Union and in the United States, oligopolistic conduct, predatory conduct, competition-distorting conduct that is and is not predatory, and (M&A)s and joint ventures that are motivated by a desire to engage in liberal-moral-rights-violative conduct post-(M or A) or by specific anticompetitive intent are “unfair” to at least their traditional moral-rights-bearing victims in that all exemplars of such conduct violate those individuals’ liberal moral rights. Liberalism also implies that it is not “unfair” for business entities (undertakings in European parlance) (1) to use (non-oligopolistic, non-predatory) pricing techniques that eliminate their customers’ buyer surplus or reduce their customers’ buyer surplus even when the firm’s action results in the firm’s realizing profits that constitute an extremely high (some might say an “exploitatively” high) percentage of the transaction surplus the firm’s relevant sales generate or (2) to consummate an (M or A) or to enter into a joint venture that “lessens competition” (in any sense in which that concept could be defined—for example, by imposing net equivalent-monetary losses on the customers of the participants and the customers of the participants’ mutual rivals) if the (M or A) or joint venture in question is not motivated by a desire to engage in liberal-moral-rights-violative conduct or by specific anticompetitive intent. These conclusions apply even when the loss that the firm’s (substitution of one pricing-technique for another)/(consummation of an [M or A] or joint venture) imposes equivalent-dollar losses on some buyers or some shareholders/creditors/managers/employees of a product rival and in doing so deprives a relevant loser of a meaningful opportunity to take its life morally seriously because liberalism does not impose an obligation on non-government actors to provide other moral-rights bearers with such opportunities by yielding them buyer surplus. Indeed, I very much doubt that liberalism places the government of a polity committed to instantiating the liberal conception of justice under an obligation to prohibit and deter all antitrust-policy-coverable conduct that imposes financial losses that would imperil the opportunity to lead a life of moral integrity on others: I doubt that such policies are part of the liberally-optimal set of government decisions that will fulfill such a government’s duty to provide all moral-rights bearers for whom it is responsible with such a meaningful opportunity.

The third set of comments I want to make about Prof. Colangelo’s contribution relates to moral-good issues. To start, liberalism does not imply that business entities (that is, their owners) have a moral right to make all profitable decisions that do not violate liberal moral rights. Liberalism is consistent with the conclusion that it is sometimes “fair” for the government to adopt policies that impose monetary losses on business entities by prohibiting them from making choices that do not violate liberal moral rights when those government policies would instantiate a morally-defensible conception of the moral good that it is morally permissible for the relevant government to instantiate. Some of the disagreements about “fairness” that Prof. Colangelo references may be disagreements about the conception of the moral good to which different evaluators personally subscribe. I should add that, although I recognize that prohibitions of the use of some pricing techniques whose use is liberal-moral-rights-violative and prohibitions of the consummation of some price-competition-reducing (M&A)s and joint ventures that are not liberal-moral-rights-violative will be morally desirable from the utilitarian and various non-utilitarian-egalitarian conceptions of the moral good, antitrust policy will often not be the best way to decrease material inequality from the perspective of any of the morally-defensible egalitarian conceptions of the moral good.

Fourth, I want to point out that both the U.S. antitrust law as written and the E.U. competition law as written fail to prohibit many kinds of antitrust-policy-coverable conduct that are “unfair” in that the conduct is liberal-moral-rights-violative and that E.U. competition law as written may prohibit as (in essence) “unfair” some conduct that is not liberal-moral-rights-violative whose prohibition would not best instantiate any egalitarian conception of the moral good. Thus, U.S. antitrust law does not prohibit natural oligopolistic conduct ¹⁰ ; E.U. competition law does not prohibit contrived-oligopolistic, predatory, or competition-distorting conduct that is not executed through an agreement between or among undertakings and cannot be said to have resulted from concerted conduct unless the perpetrator occupied a dominant position and the perpetration resulted in its exploitatively abusing its dominant position ¹¹ ; and E.U. competition law does prohibit exploitative abuses of a dominant position that do not involve exclusionary conduct (conduct motivated by specific anticompetitive intent) even when the enforcement of such prohibitions (which I acknowledge have never or virtually never been enforced) would not be a desirable method of instantiating any morally-defensible egalitarian conception of the moral good. (I should add, however, that many of the kinds of conduct whose “fairness has concerned E.U. policy-makers that are not prohibited by E.U. competition law are prohibited by U.S. law: I include here predatory or competition-distorting refusals to deal and decisions to give less prominent shelf-space to a rival’s product. ¹² )

Prof. Schäfer is a Ph.D. economist and law and economics scholar who has taught in the Law & Economics program of Hamburg University, at Bucerius Law School in Hamburg, and in law programs in Switzerland and the United States. Prof. Schäfer’s contribution to this Antitrust Bulletin issue ¹³ focuses on problems caused by and the appropriate antitrust-policy or regulatory response to the use of “big data” about individuals by platforms that collect valuable information about platform-users that the users reveal when “they browse, shop, sell or communicate on the internet.”

I will limit myself to making 6 sets of comments that relate to Prof. Schäfer’s contribution. First, from my perspective, it is noteworthy that Prof. Schäfer uses a bifurcated prescriptive-moral approach that considers (1) the impact of the actions of internet firms that “harvest and store the personal raw data from internet users” and the impact of various policy-responses that could be made to the internet-firms’ decisions on “fundamental human rights” (most importantly in this context, on privacy rights) and (2) the impact of the relevant non-government and government choices on economic efficiency (which he may be using as a surrogate for the total or average utility of all creatures whose utility is valued). Obviously, this approach parallels the approach that I think is appropriate for antitrust-policy analyses in the United States and the European Union (I suspect that, like me, Prof. Schäfer also believes that in the European Union [and the United States] the impact of conduct or policies on “fundamental human rights” has lexical priority over their impact on economic efficiency.)

Second, although Prof. Schäfer also addresses the possibility that relevant data-owners may have a property right in the data they have collected, he largely rejects those claims and focuses primarily on the privacy rights of the subjects of the harvested information. Although he does not use this terminology, my impression is that Prof. Schäfer understands these privacy rights in the way that liberalism understands them (which would not be surprising if my claim that both contemporary Germany—his native country—and the European Union are committed to instantiating the liberal conception of justice).

Third, I want to point out that liberalism values privacy interests in part for the utility that privacy-protection yields those whose privacy is protected but primarily because privacy disposes those whose privacy is protected to take their lives morally seriously (1) by facilitating their entering into and continuing intimate relationships (inter alia, by putting individuals in a position to reveal information about themselves selectively as a sign of trust in the process of forming an intimate relationship)—intimate relationships that dispose their participants to lead lives of moral integrity by leading them to consider on their own, with those with whom they have an intimate relationship, and with third parties how they have, will, and should treat their intimates and how they have been, will be, and should be treated by their intimates, (2) by giving those whose privacy is protected the solitude to think about their lives, and (3) by giving them the anonymity and secrecy that reduces the cost to them of experimenting with different conceptions of the moral good and (yes) different “life-styles.”

Fourth, I want to point out that, although Prof. Schäfer rejects the claim that the libertarian “labor theory of property” legitimates information-harvesters’ ownership of the data they collect, he has not discussed the moral defensibility of libertarianism or the economic dubiousness of the claims that libertarianism’s purportedly-moral premises warrant various applied conclusions.

Fifth, I want to explain the “conceptual” problems of using Article 102 of the 2009 Treaty of Lisbon’s prohibition of abuses of a dominant position to prevent the conduct on which Prof. Schäfer is focusing (or any other morally-bad conduct for that matter). The conceptual problem is that the concept of “a dominant position” cannot be operationalized nonarbitrarily. Does a firm’s “dominance” depend on its economic power over price, its economic power over investment, some combination of its economic power over price and its economic power over investment, and if on some such combination, on what combination? How should one define a firm’s economic power over price or its economic power over investment? There are no nonarbitrary answers to these questions. Nor can one escape this dilemma by defining “dominance” in terms of market share (1) because markets cannot be defined nonarbitrarily, and (2) even if markets could be defined nonarbitrarily, there would be little or no correlation between a firm’s market share and its possession of economic power, no matter how that power is defined. Hence, even if one ignores the fact that, no matter how “dominant position” is operationalized, some of the conduct on which Prof. Schäfer is focusing will be practiced by firms that do not occupy a dominant position, Article 102 would not provide a good basis for prohibiting such conduct.

Sixth, Prof. Schäfer’s contribution provides a real service by raising the issue of the factors that determine the relative moral desirability of responding to a problem through antitrust policy as opposed to through some other form of economic regulation (or tax or welfare policy). The relative (moral) desirability of responding to a problem by (1) passing legislation and having courts interpret and apply that legislation or (2) promulgating regulations and having administrative officials interpret and apply the regulation depends on many factors (many of which vary from polity to polity)—inter alia, (1) the substance of the decision criterion that would be (first-best) ideal if the criterion could be interpreted and applied accurately and costlessly or, more relevantly, the substance of the decision criterion that would be third-best morally desirable given the cost and inaccuracy of the efforts that would have to be made to interpret and apply relevant alternative decision criteria; (2) the formal education and prior professional experiences of the legislators who would pass the relevant legislation and the administrative officials who would promulgate the relevant regulations; (3) the “rules” that relate to the possible re-election of the relevant legislators (whether there is limited total tenure and the rules that relate to the financing of political campaigns) or to the prospects that legislators have to obtain higher political office and the “rules” that relate to the tenure and promotion of the relevant administrative officials as well as to their eligibility to run for elected offices or to occupy other administrative positions; (4) the rules or standards that pertain to the emoluments that legislators/(the relevant administrative officials) are allowed to accept during their terms of office and the paid work they are allowed to do or emoluments they are allowed to accept after leaving government employment; (5) the staffs that are available to the relevant legislative bodies and administrative-regulation promulgators; (6) the decision-making processes that the relevant legislature/(administrative agency) must use to promulgate legislation/(administrative regulations); (7) the substance of the legal and other formal education and prior professional experience of the judges that would interpret and apply the relevant legislation and the substance of the formal education and prior professional experience of the administrative officials (be they lawyers or non-lawyers) who would apply the relevant regulations; (8) the quantity of the staffs that are available to the relevant adjudicators/(administrative-regulation appliers); (9) the processes through which such decision-makers and their staffs are selected, retained, and promoted; (10) the rules that relate to such officials’ and their staffs’ eligibility to seek other government positions, to their accepting emoluments during or after their government service, or to their doing different types of paid work for different categories of employers or contractors after leaving government service; (11) empirical realities that relate to the percentage of the relevant legislators, administrative-regulation promulgators, administrative-regulation appliers, judges, and staffers for the individuals just referenced who stay in government employment until their retirement; and so on.

Profs. Nicolas Petit and Thibault Schrepel are both lawyers and economists. Prof. Petit teaches at the European University Institute and the College of Europe, and Prof. Schrepel teaches at the Vrije Universiteit Amsterdam and is a Faculty Associate at Stanford University. Their general review of my study ¹⁴ reflects their agreement with or at least their sympathy for many of the positions the study takes: inter alia, the study’s claim that normative evaluations must be based on one or more morally-defensible evaluative criteria; that a variety of evaluative criteria are morally defensible; that economic efficiency “has no intrinsic value”; that even when a moral norm such as utilitarianism implies that the economic efficiency of a choice is relevant to its moral desirability that norm does not imply that the economic efficiency of a choice is a necessary or sufficient condition for the choice’s moral desirability; that there is no nonarbitrary way to define an economic market; that there is no universally-correct way to measure the intensity of price competition or the market power or dominance of a firm; that no matter how a firm’s market power is defined, a firm’s market power has little or no bearing on whether conduct in which it has engaged or might engage was or would be motivated by specific anticompetitive intent, did or would decrease competition, or did or would decrease economic efficiency; and that the economic efficiency of a choice depends inter alia on its impact on some kinds of investment. I appreciate Prof. Petit’s and Schrepel’s positive assessment of my work. Their contribution to this issue as well as the contributions of Profs. Colangelo and Schäfer are useful reminders that valuable work on antitrust law and antitrust policy are done in Europe as well as in the United States.

Conclusion

I am grateful to the authors of the other contributions in this Antitrust Bulletin issue. I recognize that this comment has not done them justice—has focused primarily on the relationship between what they wrote and significant components of my antitrust-policy analysis. I ask both their and your indulgence.