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There is no topic in regulatory policy that is more pressing and more controversial than what to do about the tech giants – Google, Facebook, Amazon, and Apple. Critics claim that that these powerful platforms crush competitors, distort the political process, and elude antitrust law because it cares only about consumer prices. The only solution, they argue, is to break them up.This diagnosis is mistaken. The tech giants have indeed engaged in anticompetitive conduct. They have excluded rivals selling products on their platforms by demoting them in search results, copying their products, or refusing to deal with them. While these tactics have harmed consumers, they have never been successfully challenged because they have rarely, if ever, created monopoly power or a dangerous probability of monopoly power, which the Sherman Act requires. This requirement should be eliminated.The tech giants should not be broken up. Splitting them into smaller versions of themselves would result in higher prices or lower quality. Preventing them from selling their own products on their platforms would deprive consumers of choices they value. Nor should the goals of antitrust law be changed. The fundamental aim of antitrust law is to protect consumers and suppliers like workers from anticompetitive conduct. If courts also had to focus on preserving small business and limiting the political influence of large firms, the goals of antitrust would conflict. Courts would have no objective way of resolving the conflict, the rule of law would suffer, and consumers and workers would be hurt.Congress should instead amend the Sherman Act to prohibit exclusionary conduct that significantly reduces competition, whether or not it results in actual or probable monopoly power. To avoid chilling procompetitive conduct, the change should apply only to the tech giants and should contain strict proof requirements. This careful expansion would make it much easier to deter tech giant exclusion that harms consumers or workers.

Antitrust is back on the national agenda. The Democratic Party, leading Senators, progressive organizations, and many scholars are calling for stronger antitrust enforcement. One important step, overlooked in the discussion to date, is to reform how market power — an essential element in most antitrust violations — is determined. At present the very definition of market power is unsettled. While there is widespread agreement that market power is the ability to raise price profitably above the competitive level, there is no consensus on how to determine the competitive level. Moreover, courts virtually never measure market power (or its larger variant, monopoly power) by identifying the competitive level and comparing a defendant's price to it. Rather, they attempt to define a relevant market and calculate the defendant's market share, a process that is often complex and misleading. This Article proposes a new approach that would infer market power from the likely effects of the challenged conduct. Courts ought to identify power by asking whether the challenged conduct is likely to enable the defendant(s) to raise price above the prevailing level or maintain price above the but for level (the level to which price would fall absent the challenged conduct). This method would not only close the definitional gap, it would enable courts to resolve two critical elements of most antitrust offenses — market power and anticompetitive effects — at the same time, while inferring the relevant market from the result. In short, by reducing the cost and improving the accuracy of antitrust enforcement, this step would increase its impact.

One major reason why healthcare spending is much higher in America than in other countries is that our prices are exceptionally high. This Article addresses whether we ought to rely more heavily on buyer power to reduce those prices, as other nations do. It focuses on two sectors where greater buyer power could easily be exercised: prescription drugs covered by Medicare and hospital and physician services covered by private insurance. The Article concludes that the biggest buyer of all, the federal government, should be allowed to negotiate Medicare prescription drug prices. This would likely reduce the prices of many branded drugs substantially without causing a large reduction in innovation. Multiple studies indicate that drug companies have been exceptionally profitable in recent years. As a result, they could lower prices on many drugs and still earn a competitive return on most research and development. Moreover, the incentive to develop important new medicines would remain high because the government would have little leverage over the prices of these drugs. Finally, if problems with innovation develop, payments for new drugs can be increased. In contrast, encouraging large insurance companies to merge does not appear to be a promising way of lowering healthcare costs. While some large mergers may be procompetitive—lowering both excessive provider prices and insurance premiums—most would present significant competitive risks. They may allow the merged firm to exert monopsony power over small providers, they may create market power and lead to higher premiums, or they may permit the merged firm to gain a discriminatory advantage over smaller insurance companies, threatening downstream competition. Because of these dangers, it would not be wise, as a general rule, to permit large health insurers to merge

The Robinson-Patman Act suffers from two major flaws. First, its fundamental goal is not to promote competition and benefit consumers but to protect small business. Second, it frequently fails to protect either consumers or small business. In particular, the Act's defenses for meeting competition and cost justification ordinarily allow large buyers to extract discriminatory concessions from suppliers, even when the concessions harm both small competitors and consumers. To eliminate these flaws, three changes are needed. First, the Act's injury language should be amended: a plaintiff should have to show harm to competition, not just injury to a competitor. Second, the Act's meeting competition and cost justification defenses should be curtailed. Finally, though not the focus of this article, conforming changes should be made in the Act's treatment of promotional discrimination. These reforms would create a statute that is much more likely to serve consumers and control powerful buyers. Indeed, if a large buyer such as Amazon or Wal-Mart induces a concession that threatens to harm competition, a reformed Robinson-Patman Act would provide the most desirable remedy. As a general rule, neither structural relief nor common carrier regulation is likely to be preferable. For this reason, the Robinson-Patman Act should be reformed, not repealed.

One major reason why healthcare costs are much higher in America than in other countries in that our prices are exceptionally high. In this article, I address whether we ought to rely more heavily on buyer power to reduce those prices, as other nations do. I focus on two sectors where greater buyer could easily be exercised: prescription drugs covered by Medicare and hospital and physician services covered by private insurance. I conclude that the biggest buyer of all, the federal government, should be allowed to negotiate Medicare prescription drug prices. That would substantially reduce the prices of many branded drugs and is unlikely to cause a large reduction in innovation. The drug companies appear to have been exceptionally profitable in recent years and thus could lower prices on many drugs and still earn a competitive return on most R&D. The incentive to develop important new medicines would remain high because the government would have little leverage over their prices. And if problems with innovation develop, payments for new drugs can be increased. Encouraging large insurance companies to merge, however, does not appear to be a promising way of lowering healthcare costs. While those mergers would enhance buyer power, they are also likely to present significant competitive risks: they may allow the merged firm to exert monopsony power over small providers, they may create market power and lead to higher premiums (despite the increase in buyer power); and they may allow the merged firm to gain a discriminatory advantage over smaller insurance companies, threatening downstream competition. Because of these dangers, it seems unwise, as a general rule, to allow large health insurers to merge.

The goals of antitrust law continue to be debated because there is no single goal that is unambiguously correct. There is one goal, however, that now commands wider support than any other: protecting consumers and small suppliers from anticompetitive conduct – conduct that creates market power, transfers wealth from consumers or small suppliers, and fails to provide them with compensating benefits. This goal is the predominant objective in the legislative histories, it is broadly supported by the American people, it is easier to administer than total welfare, and it is now espoused by the majority of courts. Proponents of total welfare advance two principal arguments, but neither warrants elevating it over consumer and small supplier protection. First, from a normative perspective, total welfare is arguably the superior goal because it considers the welfare of all participants in the economy, including producers and consumers outside the relevant market. It ignores, however, the transfer of wealth that anticompetitive conduct causes, a transfer that many people regard as exploitative and unfair. Second, from a legal perspective, total welfare is arguably the goal of section 2 of the Sherman Act because it allows a firm to gain monopoly power through superior efficiency. But this safe harbor is equally consistent with a consumer protection goal, since it encourages firms to succeed in the marketplace by providing customers with better products, lower prices, and wider choice.

Although large buyers like Walmart and Tyson Foods occupy important positions in the American economy, antitrust law remains focused on the conduct of sellers. Moreover, when mergers of buyers have been challenged, the cases have been based on a single theory – that the merger would create a dominant buyer (or group of buyers) that would exploit small, powerless suppliers. Most powerful buyers, however, face suppliers with power of their own, and in such cases, the buyers exert "countervailing power," which can also be anticompetitive. Yet buyer mergers that reduce competition through the exercise of countervailing power are not addressed by the government's guidelines, the leading treatises, or the case law. This article provides a comprehensive analysis of the role of buyer power in merger enforcement. It defines the types of buyer power, describes their competitive effects, and reviews an array of evidence. It also discusses the traditional approach to buyer mergers, suggesting modifications to better reflect the true dynamics of buyer power. Most important, it recommends that courts and enforcement agencies halt mergers that enhance anticompetitive countervailing power. Because many buyer combinations that increase such power are beneficial, the article identifies ten situations in which a merger that augments countervailing power would reduce competition and diminish the welfare of consumers, suppliers, or society.