Antitrust and Unfair Competition Law

Competition: Fall 2019, Vol 29, No. 2


By Caroline C. Corbitt1


Should impact on workers’ wages be part of merger review? The question has been debated by recent scholarship that is grounded in a wider discussion about how—and if—antitrust law can address rising inequality and falling wages in the United States.

Past merger review conducted pursuant to Section 7 of the Clayton Act has focused on evaluating potential monopoly power and anticompetitive harms. But there is a growing call for merger review to consider monopsony2 and its potential harm to workers. Monopsony refers to a situation in which a buyer of products or services has dominant market power. It differs from (and is theoretically the opposite of) a monopoly, in which a seller of products or services has dominant market power.

Companies buy many products or services in the course of running a business. One of their primary purchases is the purchase of labor from workers. A labor market is monopsonistic when one or a small number of firms dominate hiring in the market. A firm with monopsony power can wield this power to lessen competition in the labor market, including by imposing wages below the competitive rate. Large market power— such as the power displayed by tech giants like Apple and Amazon—may also give a firm the ability to impose onerous working conditions on workers such as noncompete clauses, or enable a firm to make stringent pricing demands of its suppliers.

Regulators have recently signaled their intent to evaluate potential labor market monopsony in merger review going forward. But it is unclear how existing antitrust law and guidelines, particularly the Horizontal Merger Guidelines, will be applied to merger review actions.


In a perfectly competitive labor market, employers would face an elastic supply of workers who are highly responsive to changes in wage—and each firm would hire up to the point at which the revenue brought in by workers’ labor is equal to the market wage. But in a labor market dominated by monopsony, employers have disproportionate power, allowing them to lower wages below the competitive level. Monopsony causes workers to exit the market and the number of available jobs to decrease: economic modeling demonstrates that is more profitable for a monopsonist to offer fewer jobs at a lower salary than to hire additional workers at a competitive rate.3 Monopsony power also allows a firm to pay below-competitive wages without worrying that employees will leave.4

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Monopsony and its effect on wages have been the subject of growing discussion in the antitrust field. Some have argued that monopsony in labor markets occurs more frequently than monopoly in product markets because perfectly competitive labor markets are more illusory than perfectly competitive product markets—there will always be inherent frictions in bargaining between firms and workers.5

Others have noted that because antitrust enforcement has largely concerned product competition, not labor competition, firms are more likely to exploit their labor market power than their product market power.6 For example, firms may pursue mergers that reduce labor competition, expecting that such mergers will escape government scrutiny because the merging companies are not competitors in a product market.7 To date, government regulators have never blocked a merger because of concerns of monopsony power in a labor market.8

A. Labor Market Concentration

Monopsony power in labor markets may stem from factors such as increased market concentration, job search frictions, and job specialization.9 Firms may also gain market power through forcing employees to enter into non-compete agreements, utilizing independent contractors, and colluding with other firms (e.g., through no-poach agreements).10

A labor market is "concentrated" if hiring in that market is dominated by a single or small number of firms.11 The effect of labor market concentration has been the subject of numerous studies. Many labor markets are highly concentrated, particularly in rural or semi-rural areas, and scholars argue that labor market concentration is growing.12 According to one study, as many as 60 percent of labor markets are highly concentrated.13 At the same time, wages have stagnated, meaning that the share of the United States’ GDP held by labor has been rapidly declining—and suggesting that rising labor market concentration may be a cause.14 Research based on online job-search data has indicated that posted wages tend to be 0.4 to 1.5% lower when market concentration increases by 10 percent.15

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Leading experts in the field debated the topic of labor market concentration during the Federal Trade Commission’s October 16, 2018 Hearings on Competition and Consumer Protection in the 21st Century.16 Economist Matthias Kehrig argued that the evidence that concentration in labor market is increasing is ambiguous.17 Others criticized the methodology of labor market concentration studies to date.18 Also contested was whether highly concentrated labor markets are linked to lower wages.19 In the view of one panelist, the late Alan Krueger, growing employer concentration has caused the wage stagnation of recent decades, and increased employer concentration has likely facilitated collusion between employers.20 But according to economist Robert Topel, even if labor markets are concentrated, the correlation between employer concentration and lower wages may not be significant enough to "be worth the attention of the antitrust authorities."21

If labor market concentration is increasing and is a cause of wage stagnation, the economic harm could be extensive. In the view of University of Chicago law professor Eric Posner, labor market concentration leads to more pronounced economic harm than product market concentration because "wage suppression is much more significant than price inflation."22

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One way to address problematic labor market concentration is through merger law—blocking "wage-suppressing mergers before they occur."23

B. Existing Merger Law and Guidelines

The Federal Trade Commission and the Department of Justice have traditionally focused their merger enforcement efforts on preventing monopolies and harm to product markets. Why enforcement has not targeted monopsonistic labor markets or other forms of labor-market restraints is unclear. Randy M. Stutz of the American Antitrust Institute has suggested possible reasons for this policy decision, including the belief that antitrust and labor policy should be kept separate, a prioritizing of consumer welfare over labor welfare, and perceived difficulty in ascertaining the harmful effects of anticompetitive practices by buyers on labor.24

Perhaps because of lagging wage growth in recent decades, federal agencies have begun to increase their scrutiny of anticompetitive labor markets. In 2010, the Antitrust Division of the Department of Justice investigated "no-poaching" agreements not to hire each other’s employees made between major technology companies, including Apple and Google.25 The Federal Trade Commission has followed suit in investigating "naked" wage-fixing and no-poaching agreements.26 In 2016, the agencies also released a new publication "to alert human resource (HR) professionals and others involved in hiring and compensation decisions to potential violations of the antitrust laws": Antitrust Guidance for Human Resource Professionals.27

In keeping with the trend of increased oversight of labor markets, the Department of Justice and the Federal Trade Commission have recently signaled their intention to consider labor market monopsony in merger review going forward.28 Eighteen State Attorneys General have echoed federal regulators.29

Due to the lack of prior merger enforcement efforts on the labor side, there are few examples of how government enforcers and courts may actually act to evaluate monopsony in labor markets. The Department of Justice, together with eleven state Attorneys General and the District of Columbia, have challenged a merger partially on monopsony grounds at least once. In 2016, they challenged a proposed merger between Anthem and Cigna, alleging in part that the merger would create a monopsony in the health care services market, leading to a reduction in payments to doctors and other providers (as well as worsening the quality of health care services in the market).30 But the monopsony claim was not actually considered by the district court or the D.C. Circuit.31 (In dissent, Brett Kavanaugh, then a judge on the D.C. Circuit, wrote that the case should be remanded to the district court to consider the monopsony claim and its potential effect on provider rates.32)

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C. The Horizontal Merger Guidelines

The Horizontal Merger Guidelines, promulgated by the Federal Trade Commission and the Department of Justice to outline the principles and policies by which the two agencies review proposed mergers, provide limited guidance on the agencies’ monopsony enforcement policies.

The Guidelines recognize the problem of monopsony stemming from mergers, noting that "Mergers of competing buyers can enhance market power on the buying side of the market, just as mergers of competing sellers can enhance market power on the selling side of the market."33 The Guidelines further state that the agencies may weigh monopsony power heavily in evaluating mergers between buyers: agencies will not "evaluate the competitive effects of mergers between competing buyers strictly, or even primarily, on the basis of effects in the downstream markets in which the merger firms sell."34

While the Horizontal Merger Guidelines clearly indicate that monopsony should be evaluated under merger review, the Guidelines do not discuss monopsony in the specific context of the labor market.35 Analysis of monopsony power, according to the Guidelines, should "employ essentially the [same] framework described [for product markets] for evaluating whether a merger is likely to enhance market power on the selling side of the market."36 But what, in the absence of further instruction, does this mean?

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Section 7 of the Clayton Act grants the courts the authority to review and block mergers that involve an "activity affecting commerce" that may "substantially . . . lessen competition" or tend to "create a monopoly."37 In merger review, courts must identify a "line of commerce" and "section of the country" in which a potential merger would be anticompetitive.38

Many have argued that existing merger review law and guidelines can be effectively applied or adapted to the problem of labor market monopsony. Any such consideration of labor market monopsony must involve two major avenues of merger inquiry: market definition and market power.

A. Market Definition

Defining the affected market is a key step in merger analysis. This allows enforcers to "identify market participants and measure market shares and market concentration"—which are suggestive of a "merger’s likely competitive effects."39 The Guidelines state that market definition depends "solely on demand substitution factors, i.e., on customers’ ability and willingness to substitute away from one product to another in response to a price increase or a corresponding non-price change such as a reduction in product quality or service."40

There have been different proposals to modify the Horizontal Merger Guidelines’ market definition standard to encompass labor. The market could be defined using a "hypothetical monopsonist test"—adapted from the "hypothetical monopolist test" in the Guidelines. Under the hypothetical monopolist test, agencies assess whether a hypothetical monopolist could, if not subject to regulation or product competition, impose a "small but significant and non-transitory increase in price" (SSNIP) without consumers reducing their purchases of a product.41 Comparably, a hypothetical monopsonist test would gauge an employer’s ability to impose a "small but significant and non-transitory decrease in wages" (SSNDW) without losing workers.42

Job characteristics are important in labor market definition: markets for highly specialized workers are likely narrower than markets for more generalized ones.43 Another proposal is to initially define a given labor market through job characteristics, using commuting zone and occupational data (such as the classifications encompassed in the Standard Occupational Classification System).44 Some argue that this approach is imprecise, but acknowledge that it might be useful for an agency quick-look.45

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Any labor market definition must ultimately encompass not just job and skill type, but also geographic area and time period.46 A market is constrained by the ability or willingness of workers to relocate or commute.47 Most workers can only be unemployed for a short period of time, leading to proposals to define the labor market for time periods ranging from three months to one year.48

B. Market Power

Market power is also a key aspect of merger analysis, as a merger "should not be permitted to create, enhance, or entrench market power or to facilitate its exercise."49 As part of determining market power, the Horizontal Merger Guidelines prescribe conducting a Herfindahl-Hirschman Index (HHI) analysis of market concentration.50 Mergers in already-concentrated markets that result in an HHI increase of more than 200 points are presumed to increase market power.51 Merging entities must offer "convincing evidence" to rebut the presumption that the merger will enhance market power.52 The HHI test could also be used to analyze labor market concentration—either through inputting employers’ share of the labor market workforce or the employers’ share of workforce vacancies.53

Market power can also be demonstrated through direct evidence of a proposed merger’s effect on a market.54 Labor market power could be shown through evidence that the merging companies have previously entered into no-poaching agreements.55 Randy M. Stutz has suggested that agencies might begin their efforts to police monopsony power by reviewing mergers between firms that have previously agreed not to "poach" each other’s employees.56


Economists Ioana Marinescu and Eric Posner argue that "from an economic standpoint, monopolization of product markets and monopsonization of labor markets pose exactly the same challenge to the economy—mispricing of resources (material or human), resulting in their underemployment, which both harms the economy and results in inequitable outcomes."57 But the belief that monopsony and monopoly concerns pose the same economic challenges and should be equally weighed is controversial, and necessarily involves considering the merits of a longstanding antitrust doctrine: the consumer welfare standard.

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A. Reevaluating the Consumer Welfare Standard

The consumer welfare standard is inextricably intertwined with merger review. At a minimum, the consumer welfare standard weighs purported "efficiencies" from a merger such as lower production costs against predicted impact on consumer welfare (i.e., consumer pricing). To some, the consumer welfare standard only protects downstream purchasers of goods.58 Others contend that consumer welfare refers to the welfare of all consumers in society and thus relates to monopoly and monopsony. 59

The Horizontal Merger Guidelines as well as Supreme Court case law are clear that harm to consumers in one market cannot be outweighed by efficiency gains in another.60 But adding labor markets complicates this picture. The consumer welfare standard can pose a conflict between consumer and worker welfare: in some instances, lower consumer prices could stem from a firm’s monopsony power and corresponding ability to extract more money from suppliers or lower workers’ wages.61 Take, for example, Amazon and Uber—two companies who have wielded their enormous market power to drastically lower prices on goods and taxi services. The consumer pays less, but is this benefit outweighed by the lower prices paid to Amazon’s suppliers and the lower wages paid to Uber’s drivers?

In prioritizing consumers over workers, the consumer welfare standard may contribute "to the creation and maintenance of buyer power in labor and other markets."62 But others argue monopsony should not be considered by antitrust law unless a monopsony will cause a demonstrable detrimental effect on consumers.63

The role of the consumer welfare standard in monopsony merger review was heavily debated at the Federal Trade Commission’s October 2018 Hearings. Panelist Renata Hesse acknowledged that the consumer welfare standard would treat lower labor costs as an "efficiency" but argued that a merger’s effects on the labor market can be considered separately from the consumer welfare test.64 Economist and health policy expert Martin Gaynor noted that it is important to distinguish between competitive and anticompetitive efficiencies in the labor market—technological advancements may bring about lower wages through competitive means, while market power may bring about lower wages through anticompetitive means.65 Attorney Jon Jacobson argued that labor markets should be considered in merger review but that existing product market merger review already addresses most potential labor market issues.66 Economist Nancy Rose predicted that the benefits of heightened review of labor market issues in merger reviews would be low and would ultimately result in fewer overall challenges to mergers.67

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Review of past mergers may shed light on whether monopsony effects have been ignored in favor of consumer benefits.68 It may demonstrate that the tension between consumer welfare and labor welfare is sometimes irreconcilable under the consumer welfare standard. During the panel, Mr. Jacobson proposed an alternative standard for assessing a merger’s effect—assessing a merger’s impact on output rather than impact on consumer prices.69 Such a standard could be applied equally to labor and product markets.70

Economists Adil Abdela and Marshall Steinbaum have proposed another alternative to the consumer welfare standard: an "effective competition standard."71 Their proposed effective competition standard "(1) shifts the burden of proof in any merger review to the merging parties, to prove their transaction would not harm competition; (2) mandates that antitrust enforcers look more often upstream for anti-competitive effects, including in labor markets; (3) establishes right of market access for upstream suppliers, which, in this case, would include content creators who use wireless technology to reach customers."72

B. Expanding Antitrust Laws to Address Labor Market Monopsony

Many have urged the Federal Trade Commission and the Department of Justice to revise the Horizontal Merger Guidelines to encompass monopsony.73 Others, including antitrust scholars and presidential candidates, have gone further, advocating for a revision of our existing antitrust laws. Senator and presidential contender Amy Klobuchar has proposed inserting "or a monopsony" after every instance of the term "monopoly" in Section 7 of the Clayton Act.74 Economists Ioana Marinescu and Eric A. Posner have drafted new legislation to address labor market monopsony with labor-specific definitions of markets and anticompetitive behaviors.75

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Presidential candidate and Senator Elizabeth Warren has called for new regulations of America’s largest companies. Her new regulatory scheme would target the ways in which tech giants such as Facebook, Amazon, and Google have, in her view, used mergers to eliminate potential competitors.76 Senator Warren’s proposal would unwind Facebook’s acquisitions of Instagram and WhatsApp; Google’s acquisitions of Waze, Nest, and DoubleClick; and Amazon’s acquisitions of Whole Foods and Zappos.77 She also proposes to split apart enormous companies that act as both marketplaces and vendors, such as Amazon Marketplace and AmazonBasics.78

Senator Warren’s plan does not explicitly address monopsony beyond referring to the market power that Amazon exerts over its suppliers.79 However, commentators have observed that companies such as Amazon, Airbnb, Uber, and Facebook have enormous monopsony power as buyers (over products, services, and content), and that Senator Warren’s plan might help remedy these marketplace imbalances.80


Labor’s declining share of the American economy may have many causes. For example, labor unions have decreased, reducing workers’ bargaining power—and likely strengthening employers’ market power.81 To some economists, blaming rising labor market concentration and employer market power is misplaced—they believe that diminished worker bargaining power is the more significant cause of the rising gap between median workers’ pay and their productivity.82

While multiple factors may contribute to our "contemporary inequality in wealth, income, and social status," Marshall Steinbaum observes that diminished worker bargaining power and rising labor inequality must be attributed in part to "the erosion of antitrust laws restricting dominant firms […] and the concurrent use of antitrust against any attempt by those workers or independent businessmen or contractors to bargain collectively against such concentrations of power."83 As Eric Posner argues, setting aside the debate over the origin of "stagnating economic growth rates, rising inequality, and political conflict," we must acknowledge that "labor monopsony, wherever it occurs, is a problem."84

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As discussed above, merger review and other forms of government enforcement against monopsony—particularly labor market monopsony—have been limited. Private antitrust litigation against monopsony is also rare.85 The Clayton Act does not apply to mergers if any merging firm operates entirely within a state, meaning that only national mergers can be challenged.86 Employers often operate within a single state, putting them outside the reach of the Clayton Act.

Labor-side class actions pose particular challenges: it is generally more difficult to demonstrate commonality on a classwide basis in a labor market than in a product market.87 Additionally, labor market classes are often smaller than product market classes, meaning that damages will be smaller as well—and it may not be financially viable for plaintiffs’ attorneys who work on contingency to take these cases.88 Moreover, workers may not be able to bring class action lawsuits against their employers because their employment agreements include arbitration provisions.89

While monopsony may be only a partial cause of income inequality and wage stagnation in America, increased antitrust scrutiny of monopsony through merger review and other avenues is nonetheless merited. There must be stronger enforcement of existing laws and guidelines—as well as new laws and guidelines that give government agencies a clear mandate to address all forms of monopsony, including in the labor market.

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1. Caroline Corbitt is an associate attorney at Pritzker Levine LLP. The views expressed herein are her own.

2. The term monopsony was first used in print by economist Joan Robinson in her book, The Economics of Imperfect Competition (1933), from a combination of the Greek roots mónos, "single," and opsõnía, "purchase."

3. Ioana Marinescu & Herbert J. Hovenkamp, Anticompetitive Mergers in Labor Markets, Faculty Scholarship at Penn Law (April 2019), at 7-8, available at; Jee-Yeon K. Lehmann, et al., Antitrust in Labor Markets: Insights from the FTC Hearings on Competition and Consumer Protection in the 21st Century, Analysis Group (Feb. 15, 2019), at 3,

4. Ioana Marinescu & Eric A. Posner, Why Has Antitrust Law Failed Workers?, SSRN (Feb. 14, 2019), at 2-3, available at

5. Directorate for Financial and Enterprise Affairs Competition Committee, Competition Concerns in Labor Markets, DAF/COMP(2019)2, 4 (2019).

6. Eric A. Posner, Why the FTC Should Focus on Labor Monopsony, ProMarket Blog (November 5, 2018),

7. Suresh Naidu, Eric A. Posner, & Glen Weyl, Antitrust Remedies for Labor Market Power, 132 Harv. L. Rev. 536, 572 (2018); Directorate, supra note 5, at 23.

8. Naidu, supra note 7, at 571.

9. Marinescu & Posner, supra note 4, at 9.

10. Naidu, supra note 7, at 554; Debbie Feinstein & Albert Teng, Buyer Power: Is Monopsony the New Monopoly?, 33(2) Antitrust 12, 13 (Spring 2019).

11. Jose Azar, Ioana Marinescu, & Marshall Steinbaum, Labor Market Concentration, SSRN (Dec. 10, 2018), at 1, available at

12. Jose Azar, et al., Concentration in U.S. Labor Markets: Evidence from Online Vacancy Data, NBER Working Paper No. 24307 (March 2018, rev. Feb. 2019),; Marinescu & Posner, supra note 4, at 2, 10.

13. Lehmann, supra note 3, at 4-5.

14. Marinescu & Posner, supra note 4, at 13-16; Marshall Steinbaum, Antitrust in the Labor Market: Protectionist, or Pro-Competitive?, ProMarket Blog (Sept. 20, 2017),

15. The study specifically correlated posted wages with a 10 percent increase in the Herfindahl-Hirschman Index (with labor markets defined by commuting zone and occupation.) Lehmann, supra note 3, at 4-5. Azar, supra note 12, at 39.

16. FTC Hearing #3: Multi-Sided Platforms, Labor Markets, and Potential Competition (October 16, 2018), transcript available at; Lehmann, supra note 3, at 1-2.

17. Lehmann, supra note 3, at 4.

18. Id. at 5.

19. Id. at 4-5.

20. Id. at 4. Mr. Kreuger was an esteemed labor economist who advised Bill Clinton and Barack Obama during their presidencies. He died on March 16, 2019. At the time of his death, he was the James Madison Professor of Political Economy at Princeton University. See

21. Lehmann, supra note 3, at 5.

22. Posner (ProMarket), supra note 6.

23. Marinescu & Hovenkamp, supra note 3, at 2.

24. Randy M. Stutz, The Evolving Antitrust Treatment of Labor-Market Restraints: From Theory to Practice, American Antitrust Institute White Paper (July 31, 2018), at 2-6,

25. United States v. Adobe Systems, Inc., et al., Case No. 1:10-cv-01629 (D.D.C.).

26. Lehmann, supra note 3, at 1.

27. Department of Justice/Federal Trade Commission, Antitrust Guidance for Human Resources Professionals (October 2016), available at

28. Feinstein, supra note 10, at 15.

29. Public Comments of 18 State Attorneys General on Labor Issues in Antitrust (July 15, 2019); Federal Trade Commission Hearings on Competition and Consumer Protection in the 21st Century, available at

30. United States v. Anthem, Inc., Case No. 1:16-cv-01493, Plaintiffs’ Supplemental Memorandum on the Buy-Side Case (ECF No. 410) at 9-10 (D.D.C. Dec. 19, 2016); Feinstein, supra note 10, at 14.

31. See generally United States v. Anthem, Inc., Case No. 1:16-cv-01493; United States v. Anthem, Inc., 855 F.3d 345 (D.C. Cir. 2017).

32. Anthem, 855 F.3d at 377-78 (Kavanaugh, J., dissenting).

33. Department of Justice/Federal Trade Commission, Horizontal Merger Guidelines (Aug. 19, 2010), available at

34. Id.

35. See id.

36. Id.

37. 15 U.S. Code § 18.

38. Id. See Marinescu & Hovenkamp, supra note 3, at 2.

39. Merger Guidelines, supra note 33.

40. Id.

41. Id.

42. Naidu, supra note 7, at 575-576; Directorate, supra note 5, at 24-25.

43. Directorate, supra note 5, at 24.

44. Id. at 25; Marinescu & Posner, supra note 4, at 7-9.

45. Directorate, supra note 5, at 25.

46. Marinescu & Posner, supra note 4, at 7.

47. Id.

48. Directorate, supra note 5, at 25.

49. Merger Guidelines, supra note 33.

50. Id.

51. Id.

52. Id.

53. Directorate, supra note 5, at 25.

54. Stutz, supra note 24, at 16.

55. Id.

56. Id.

57. Marinescu & Posner, supra note 4, at 3.

58. Feinstein, supra note 10, at 13.

59. Id.

60. United States v. Philadelphia Natl’l Bank, 374 U.S. 321, 370-71 (1963); Marinescu & Hovenkamp, supra note 3, at 30-31.

61. Id.

62. Feinstein, supra note 10, at 13.

63. Id.

64. Lehmann, supra note 3, at 6.

65. Id.

66. Id. at 9.

67. Id.

68. See id. at 8.

69. Id. at 6.

70. Id.

71. Adil Abdela & Marshall Steinbaum, Labor market impact of the proposed Sprint—T-Mobile merger, Economist Policy Institute/Roosevelt Institute (Dec. 17, 2018), at 21, available at

72. Id.

73. E.g., Lehmann, supra note 3, at 9.

74. Feinstein, supra note 10, at 12.

75. Ioana Marinescu & Eric. A. Posner, A Proposal to Enhance Antitrust Protection Against Labor Market Monopsony, Roosevelt Institute Working Paper (Dec. 21, 2018), available at

76. Elizabeth Warren, Here’s how we can break up Big Tech, Medium (March 9, 2019),; Astead W. Herndon, Elizabeth Warren Proposes Breaking up Tech Giants Like Amazon and Facebook, The New York Times, March 8, 2019, available at

77. Id.

78. Id.

79. See Warren, supra note 76.

80. Antonio Garcia Martinez, Facebook Is Not a Monopoly, but It Should Be Broken Up, Wired,

81. Directorate, supra note 5, at 5.

82. Josh Bivens, Lawrence Mishel, & John Schmitt, It’s not just monopoly and monopsony, Economic Policy Institute, April 25, 2018, at 2-3,

83. Marshall Steinbaum, Antitrust, The Gig Economy, and Labor Market Power, 82 Law and Contemporary Problems 45-64, 61 (2019), available at

84. Posner (ProMarket), supra note 6.

85. Posner (ProMarket), supra note 6; Marinescu & Posner, supra note 4, at 29.

86. Marinescu & Posner, supra note 4, at 24 (discussing United States v. Am. Bldg. Maint. Indus., 422 U.S. 271 (1975)).

87. Id. at 29.

88. Posner (ProMarket), supra note 6.

89. Marinescu & Posner, supra note 4, at 39 (discussing Am. Express Co. v. Italian Colors Rest., 570 U.S. 228 (2013) and Epic Sys. Corp. v. Lewis, 584 U.S. ___ (2018)).

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