3.28.2006

bundling and the incipiency doctrine

One of the main impetus for my paper was that I worked on some issues this summer where we couldnt quite make the Sherman (Donnelly) Act arguments for clear cases of consumer dissatisfaction, but when we looked at how they came about it was because of a steady stream of mergers and acquisitions. Its becomeing clearer to me now that if all the specifications of the Clayton act were meant to address a lower standard than the Sherman act, that these are precisely the cases that i am arguing for.

One clear example is bundling law. Its a mess. There are clear complaints in all sorts of concentrated industries of bundling being used as leverage by more powerful firms to get contracts with bigger buyers, but aside from teh hated LePages decisions, the commentary seems to be pulling for a predatory pricing standard, which is almost impossible to prove, makgin this yet another place where the incipiency doctrine would be the answer. Why struggle so much to make these arguments after the fact.

Furthermore, the entire entry and collosion analysis rest on the ideas of other firms responses to a merger. Why does that not carry over to other firms mergers?

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