Antitrust and Unfair Competition Law

Competition: SPRING 2023, Vol 33, No. 1


By Lin W. Kahn, David C. Kiernan, Alyxandra Vernon, Maya Baumer1

Today, a loud chorus is calling for antitrust reform for digital markets and technology companies. The refrains are familiar: "big is bad"; "break them up"; "walled garden"; "killer acquisitions"; "platform self-preferencing." Critics decry what they view as the current antitrust framework’s inordinate focus on price or output impacts as determining whether competition has been harmed. They argue that this standard fails to capture the nonprice effects of exclusionary conduct and mergers in digital markets, including harm to innovation, barriers to entry, and invasion of privacy. Prompted by such criticism, the California Legislature authorized the California Law Revision Commission2 to study "[w]hether the law should be revised in the context of technology companies so that analysis of antitrust injury in that setting reflects competitive benefits such as innovation and permitting the personal freedom of individuals to start their own business and not solely whether such monopolies act to raise prices."3

This article focuses on one part of the debate: the role that innovation plays in today’s antitrust jurisprudence. There is little dispute that protecting innovation is a central goal of the current antitrust laws. Despite this consensus, some argue that the law gives only "lip service" to this goal.4 Below, we briefly describe the call for reform, then examine the role of innovation in the case law and enforcement actions, and finally analyze whether the antitrust statutes should be revised to provide ex ante rules for digital markets to account for harm to innovation.

As we show, courts and government regulators do more than give perfunctory attention to harm to innovation. Promoting innovation is often a key consideration in the analysis, especially in government enforcement actions. When antitrust challenges involving innovation harm fail, it is not because courts and regulators ignore impacts on innovation but because the factfinder found that the challenger failed to prove an anticompetitive impact or that countervailing procompetitive benefits outweighed such impact. The analysis in these cases shows that the existing Rule of Reason framework that has long been a hallmark of antitrust law protects innovation benefits. The process is also ongoing, as recent enforcement activity in digital markets has focused on alleged harms to innovation. These cases are working their way through the courts and their resolution will contribute to the further development of the standards in this area. The case-by-case, non-sector specific framework the courts will apply in these cases allows the law to adapt to changing circumstances, evolving economic theory, and accumulated experience. Dismantling this approach and imposing new ex ante rules at this juncture for technology companies is unnecessary and would risk harming the vigorous competition the antitrust laws were enacted to protect.

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The primary target for advocates of reform is the consumer welfare standard that has been the bedrock of antitrust law for decades. Critics of the current system argue that a significant consequence of the consumer welfare standard has been to focus on consumer prices as the dominant metric of assessing competition.5 As a result, the argument goes, the current framework "yield[s] almost no consideration of the ‘dynamic’ costs of monopoly, like stagnation or stalled innovation."6 Critics argue that the consumer welfare standard has failed to stop "Big Tech" from locking in customers and using exclusionary conduct to block nascent competitive threats. They say this has led to a slew of harmful effects, including the concentration of power, higher prices, and declining innovation and quality. Proponents of reform argue that the consumer welfare standard is especially ill equipped for the digital economy with business models centered around zero-price markets, where anticompetitive conduct may not lead to immediate higher prices. And some posit that the best solution for dealing with entrenched technology companies is to revise the rules through adoption of per se or ex ante standards without requiring proof of anticompetitive effects in certain circumstances.


There is little dispute that promoting and protecting innovation is a core purpose of the current antitrust laws. Areeda & Hovenkamp emphasize, "a dominant firm’s restraints on the innovations of others go to the heart of antitrust policy."7 Courts have recognized this time and again, noting that antitrust laws "safeguard the incentive to innovate"8 and encourage "innovation, industry, and competition."9In fact, many have argued that innovation competition has likely produced considerably greater economic gains than the movement of markets toward greater price competition.10 Thus, it is no surprise that harm to innovation has been an important element of monopolization and anticompetitive conduct challenges under Sections 1 and 2 of the Sherman Act,11 as well as merger challenges under Section 7 of the Clayton Act.12

In particular, the concern over impediments to innovation has long been a central focus of antitrust analysis in technology markets, where innovation is a prime mode of competition. As the FTC recognizes, "[i]nnovation is a central aspect of rivalries among technology firms, and the markets are dynamic: new ideas topple formerly dominant technologies and consumers line up to buy products that are smaller, faster, and better."13 For this reason, numerous technology cases over the years have addressed this concern under the existing antitrust framework.


Harm to innovation was front and center in United States v. Microsoft Corp.14 The district court held that Microsoft illegally preserved a monopoly in the market for personal computing operating systems by preventing competitors from distributing their products.15 Microsoft’s Windows operating system held a significant share of the operating system market, but "middleware" products like Netscape Navigator browser threatened Microsoft’s position. To combat this nascent threat, Microsoft pre-installed its own Internet browser on Windows and took steps to give its own browser an advantage over Navigator and other rival browsers.16 The district court found that Microsoft’s actions harmed consumers by "unjustifiably distorting competition" and that Microsoft’s actions "hobbled a form of innovation that had shown the potential to depress the applications barrier to entry sufficiently to enable other firms to compete effectively against Microsoft."17 The court added, "[m]ost harmful of all is the message that Microsoft’s actions have conveyed to every enterprise with the potential to innovate in the computer industry," with the "ultimate result" being that "some innovations that would truly benefit consumers never occur for the sole reason that they do not coincide with Microsoft’s self-interest."18 The D.C. Circuit upheld most of the district court’s conclusions and condemned Microsoft’s practices—which were unrelated to short-term pricing—because they

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threatened to raise entry barriers and thus reduced or delayed innovation.19

Similarly, the DOJ’s suit against Mastercard and Visa in the 1990s was meant, in part, to protect innovation. The DOJ alleged the companies’ policies preventing credit card issuers from issuing competing credit cards—like American Express or Discover cards—unreasonably restrained trade.20 The DOJ alleged that the policies harmed consumers by "reducing competitive investments in the innovation, development, and marketing of improved network products and services, and by restraining the competitiveness of smaller networks."21 The Second Circuit agreed and affirmed the district court’s finding that "by enforcing . . . the exclusionary rule, [which] bar[s] their member banks from issuing Amex or Discover cards," MasterCard and Visa violated the Sherman Act.22Importantly, the DOJ showed "substantial adverse effects on competition" through nonprice harms like suppression of innovation.23 The Second Circuit relied on trial testimony that "strongly indicated that price competition and innovation in services would be enhanced if four competitors, rather than only two, were able to compete . . . for issuing banks."24The court also endorsed the district court’s finding that both defendants would "respond to . . . greater network competition by offering new and better products and services."25 Ultimately, because both "product innovation and output" were "stunted by the challenged policies," the Second Circuit ruled that competition had been harmed.26

Innovation was also a key consideration in the FTC’s suit against Intel, where the agency alleged that Intel used its market power to maintain a monopoly over the microprocessor market.27 The FTC alleged that Intel denied certain customers access to technical information as a means of coercing those customers to grant Intel licenses to innovations developed and owned by those customers.28 According to the complaint, "[a] natural and probable effect of Intel’s conduct is to diminish the incentives of those [] customers—as well as other firms that are Intel customers or otherwise commercially dependent upon Intel—to develop new innovations relating to microprocessor technology."29 Ultimately, the parties settled the dispute, with Intel agreeing to stop the challenged conduct.30 The FTC’s announcement of the settlement emphasized that the agency was focused on striking the right balance "between protecting the incentives of smaller rivals to innovate and unduly constricting a dominant firm’s conduct of its business."31

Private plaintiffs have also sued on a theory of harm to innovation, particularly in cases involving alleged exclusionary conduct in connection with standard setting organizations. Standard-setting procedures can threaten innovation when they "impede progressiveness by excluding from the market firms who threaten their rivals with . . . innovations that consumers would prefer if given the opportunity."32For example, in Wi-Lan, Inc. v. LG Elecs., Inc., a patent infringement case, defendant LG asserted a Sherman Act Section 2 counterclaim alleging that Wi-LAN’s failure to disclose intellectual property rights in wireless technologies to standard setting organizations excluded viable alternative technologies.33 On a motion for judgment on the pleadings, Wi-LAN argued that LG failed to adequately allege an antitrust injury, but the court disagreed, finding LG’s allegation that the alleged conduct "chill[ed] competition to develop and sell innovative new [] products, resulting in increased prices and decreased quality and innovation in downstream product markets and complementary innovation markets" as sufficient.34 Consistent with this ruling, decades ago, the Supreme Court recognized in Allied Tube & Conduit Corp. v. Indian Head, Inc. that manipulating the standard setting process "might impair competition in several ways," including not just by increasing prices but by "’depriv[ing] some consumers of a desired product [and] eliminat[ing] quality competition."35

Harm to innovation has been alleged in non-standard-setting private cases as well. For example, in Lucasys, Inc. v. Power Plan, Inc., the court denied a motion to dismiss the plaintiff’s claims that the defendant harmed innovation in the utility software market.36 The court found that Lucasys had sufficiently alleged harm to competition because

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Lucasys pled that PowerPlan’s blocking of new products hampered innovation, reduced output, deprived consumers of choice, and raised prices.37Citing Areeda & Hovenkamp, the court noted that "'[r]estraints on innovation are very likely even more harmful than traditional price cartels, which [are] usually consider[ed] to be the most harmful anticompetitive practice.’"38 As another example, in Integraph Corp. v. Intel Corp., the district court found that Intel "attempted to leverage its monopoly power in the [] CPU market to prevent Intergraph from competing in the graphics subsystem and workstation markets."39 The court found the conduct "reduce[d] competition in the markets in which Intergraph competes, depriving customers of alternative and improved technology in these markets, stifling innovation, reducing competition in price and quality, and impairing competition generally."40

On the flip side of the coin, protecting innovation is often considered when courts analyze a defendant’s procompetitive justifications. For instance, courts have held that product design changes are not unreasonable under Section 2 of the Sherman Act if they are justified by legitimate product innovation.41The Ninth Circuit explained in Allied Orthopedic Appliances, Inc. v. Tyco Health Care Grp. LP that "[a] monopolist, no less than any other competitor, is permitted and indeed encouraged to compete aggressively on the merits, and any success it may achieve solely through ‘the process of invention and innovation’ is necessarily tolerated by the antitrust laws."42 The court affirmed summary judgment for Tyco, holding that Tyco’s design improvements on its pulse oximeters were product improvements and plaintiffs failed to present evidence that Tyco used its monopoly power to coerce adoption of the new product.43 The Supreme Court has also repeatedly recognized that innovation can be a procompetitive justification in antitrust cases. In Ohio v. American Express Co., the Court found "Amex’s business model [] stimulated competitive innovations in the credit-card market, increasing the volume of transactions and improving the quality of the services."44 And in Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, the Court reasoned that "[t]he opportunity to charge monopoly prices . . . induces risk taking that produces innovation and economic growth."


Harms to innovation are also addressed under Section 7 of the Clayton Act, and are an important part of assessing mergers. The Horizontal Merger Guidelines mention innovation no less than twenty times.45 Of particular interest, the Guidelines include a section titled "Innovation and Product Variety," which recognizes that "[c]ompetition often spurs firms to innovate"46 and that a merger may harm innovation "by encouraging the merged firm to curtail its innovative efforts below the level that would prevail in the absence of the merger."47 The Guidelines explain that diminished innovation could entail "reduced incentive to continue with an existing product-development effort or reduced incentive to initiate development of new products."48

As analyzed in Merging Innovation into Antitrust Agency Enforcement of the Clayton Act, the DOJ and FTC often invoke harm to innovation in their merger challenges.49 For example, between 2004 and 2014, the FTC and DOJ challenged harms to innovation in 84 cases.50 The authors of the article found that the agencies most often alleged harm to innovation in mergers involving "high research and development" because "harm to innovation from a merger and the potential for change in industry structure to promote innovation . . . [were] most likely to occur in industries" with high research and development intensity.51

Harm to innovation continues to be a cornerstone of merger enforcement today. Just in the last two years, the FTC and DOJ have brought several merger challenges focused on harm to innovation, especially in vertical mergers. Most recently, the FTC issued an order to unwind the vertical transaction between Illumina (a DNA sequencing provider) and GRAIL, Inc. (a maker of multi-cancer detection tests).52 The Commission found that the deal would stifle innovation in the downstream market for cancer tests by giving Illumina the ability and incentive to foreclose or harm GRAIL’s rivals.53

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According to the Commission, Illumina could harm other test developers through "non-price means, such as by withholding or degrading access to supply, service, or new technologies."54 This could, as the Commission found, "impede GRAIL’s competitors’ business and inhibit their R&D efforts."55

Similarly, in Nvidia/Arm, another vertical transaction, the FTC challenged Nvidia’s proposed acquisition of Arm on the grounds that the acquisition would allegedly undermine and reduce competition, which would ultimately cause harm to "innovation" and "higher prices."56 Nvidia, a developer and supplier of processor products for various applications, sought to acquire Arm, a developer and licenser of central processing unit designs and architectures ("Arm Processor Technology").57 The FTC announced that the transaction would "give one of the largest chip companies control over the computing technology and designs that rival firms rely on to develop their own competing chips."58 The complaint further alleged that the combined entity would have the ability and incentive to harm rivals and "prevent[] innovations in Arm Processor Technology that could lead to greater future competition against Nvidia."59The FTC maintained that the acquisition would likely lead to "substantial lessening of competition by eliminating innovations that Arm would have pursued but for a conflict with Nvidia’s interests."60The parties abandoned the transaction shortly after the FTC filed the complaint.61

Likewise, in Lockheed Martin/Aerojet, yet another vertical transaction, the FTC challenged Lockheed’s proposed acquisition of Aerojet on the grounds that the acquisition would harm innovation and quality.62 Lockheed, a defense contractor, sought to acquire Aerojet, a supplier of several critical missile propulsion products.63 The FTC alleged that the acquisition would "likely result in a decrease in certain research and development (‘R&D’) investment and innovation in the design, development, and production of missile propulsion systems."64 Specifically, the FTC alleged:

Today, Aerojet collaborates closely and shares innovative ideas with all its major customers, including, but not limited to, Lockheed, Raytheon, Boeing, and Northrop. Similarly, Aerojet invests its own resources in R&D to support competing propulsion concepts advanced by multiple prime contractors for a given missile program. Given Aerojet currently is generally agnostic as to which prime wins a given contract (provided Aerojet is the supplier for the winner), Aerojet invests in technologies that it expects will yield the most benefit to its propulsion business without regard to the identity of the prime contractor. Post-acquisition, however, a combined Lockheed-Aerojet will no longer possess the same incentives with respect to R&D. Post-acquisition, the combined firm will earn more if Lockheed wins the prime contract, and therefore, would have a diminished incentive to devote its resources toward otherwise beneficial, innovative R&D that would advantage Lockheed’s rivals or diminish sales of competing Lockheed Relevant Products, ultimately inhibiting DoD’s capability to defend the nation.65

The core of the FTC’s concern was that the acquisition would "substantially lessen competition" by causing "less innovation," "increased barriers" to entry, and "lower quality product."66 The parties terminated the agreement shortly after the challenge.67


Advocates for antitrust reform argue that the current laws are insufficient to stop firms from gaining or maintaining monopoly power through "killer acquisitions" of innovative, nascent startups done solely to discontinue the target’s innovation projects.

Startup or nascent firms can play a vital role in competitive markets. They can be a key source of innovation, including "disruptive innovation." In certain circumstances, startups can help deconcentrate markets, force less efficient

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incumbents to improve or exit, and play an important role in creating efficient markets.

For years, the DOJ and FTC have challenged vertical and horizontal transactions that involve nascent competitors and that threaten innovation competition, including where: (i) the merging firms were actual competitors, (ii) but for the merger, one firm would have faced competition from the target in the future, and (iii) both firms were working to develop products that would likely compete in the future.68 Examples include:

• Illumina/Pacific Biosciences. In 2019, the FTC challenged the acquisition of an innovative biotech firm, Pacific Biosciences of California, by an incumbent, Illumina, as a violation of both Section 7 of the Clayton Act and Section 2 of the Sherman Act. The FTC alleged that Illumina’s proposed acquisition would substantially lessen current and future competition in a market for next-generation DNA sequencing systems. While Pacific Biosciences and Illumina were not current competitors, the FTC alleged that absent the proposed acquisition, competition between Illumina and PacBio would increase substantially in the future. The parties abandoned their merger plans after the FTC filed its complaint.69
• Visa Inc./Plaid Inc. In 2020, the DOJ filed a lawsuit to stop the merger of Visa Inc. and Plaid Inc. The DOJ alleged that Visa was a monopolist in online debit and that it charged consumers and merchants billions of dollars in fees each year to process online payments. The DOJ also alleged that Plaid, a successful fintech firm, was developing an innovative payment platform that would challenge Visa’s monopoly. According to the complaint, the transaction would have enabled Visa to eliminate Plaid, a competitive threat to its online debit business, before Plaid had a chance to succeed, thereby enhancing or maintaining its monopoly. The complaint also alleged that allowing the merger would "likely reduce quality, service, choice, and innovation."70 Visa and Plaid ultimately decided to abandon the merger.71

The agencies have a number of other pending cases revolving around innovation that have yet to be decided. For example, in 2020, the FTC sued Meta for monopolization, alleging that the company illegally maintained its personal social networking monopoly through a years-long course of anticompetitive conduct in violation of Section 2 of the Sherman Act. The complaint alleges that Meta engaged in a systematic strategy of targeting nascent competitors—including its 2012 acquisition of up-and-coming rival Instagram, its 2014 acquisition of the mobile messaging app WhatsApp, and the imposition of anticompetitive conditions on software developers—to eliminate threats to its monopoly. The case is still pending.72 The DOJ’s 2020 case against Google alleging monopoly over search and search advertising is scheduled for trial in September 2023.73 In January 2023, the DOJ filed another case against Google alleging monopoly over digital advertising technologies.74


The government has suffered a series of recent losses, including cases with allegations of harm to innovation. However, these losses stem from the government’s failure to put forth sufficient evidence to meet their burden, not from a lack of legal theory based on harm to innovation.

In UnitedHealth/Change Healthcare, the DOJ alleged that a merger between United (a health insurer) and Change (a provider of key technologies for health insurers) would disadvantage rivals and result in higher costs, lower quality, and less innovative commercial health insurance for Americans.75 The DOJ alleged that the transaction would give United control of Change’s critical data highway, through which half of American’s health insurance claims pass each year.76 According to the complaint, the deal would give United the ability and incentive to misuse its rivals’ competitively sensitive information for its own business purposes.77 "Innovation competition

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among health insurers would likely decline, because rival insurers would know that United could identify and appropriate the innovation through its access to the innovator’s competitively sensitive edits," alleged the DOJ.78 And "[t]his harm to innovation would reduce competition in the sale of commercial health insurance to national accounts and large group employers, resulting in less affordable or lower quality plans."79

The D.C. District Court denied the DOJ’s request for preliminary injunction to block the merger.80 The court recognized that the government’s theory of competitive harm was that United’s potential misuse of Change’s claims data would reduce innovation.81The problem with the government’s case was not its legal theory or that innovation harm was irrelevant to the antitrust analysis; rather, it was the lack of proof. The court found "the Government provided zero real-world evidence that rival payers are likely to reduce innovation."82 The court observed that "[t]he Government did not call a single rival payer witness to offer corporate testimony that it would innovate less or compete less aggressively if the proposed merger goes through. . . . To the contrary, all the payer witnesses rejected the notion that the merger would harm innovation."83 The sole support from the government on harm to innovation was its expert testimony, which the court found insufficient. "[A]ntitrust theory and speculation cannot trump facts; the Government must make its case on the basis of the record evidence relating to the market and its probable future."84

As another example, in Meta/Within, the FTC sought to enjoin Meta from acquiring Within, a software company that develops applications for VR devices.85The FTC alleged the acquisition may "yield multiple harmful outcomes, including less innovation, lower quality, higher prices, . . . and less consumer choice."86The FTC’s core argument was that Meta wanted to buy Within rather than create its own VR fitness application, and that the VR fitness space would be more competitive without the acquisition.87 A federal judge denied the FTC’s attempt to block the acquisition, finding the FTC’s argument that Meta would have entered the VR market "impermissibly speculative."88

Of course, not every alleged harm to innovation entitles plaintiffs to the relief sought. Where a private plaintiff or government enforcer fails to prove facts to support the claim of likely harm to innovation, a finding for defendants on such a claim is the right outcome. And, even if harm is found, the court must balance it against any procompetitive benefits from the conduct.89


Some may argue that these government losses highlight the reality that impact on innovation—especially inchoate innovation years from market entry—can be difficult for tribunals to measure. "[T]he results of innovation are unexpected, sometimes radically so in the sense that the valuable result was not even within the range of what was intended."90 The difficulty of measurement may depend on the stage of the innovation. Exclusion of completed innovation may present an easier case, while impact on prospective innovations is a much harder case.91 This difficulty, however, is not unique to measuring innovation effects. While we have well-developed theories about market structure and the relationship between costs and prices, the economic or price impact of conduct is often uncertain and difficult to assess correctly ex ante. Indeed, antitrust cases focused solely on price effects have likewise failed because plaintiffs presented nothing more than "theories and speculation."92 In other words, the problem of proof is not unique to cases involving innovation effects, and thus is not alone a reason to adopt a different approach for such cases.

The current antitrust jurisprudence has evolved through decades of case law, and will continue to evolve on a case-by-case basis as more digital markets cases are bought and as economic theories continue to develop. This common law approach takes time and can be criticized for being too slow for the fast pace of the digital economy. But this approach has significant benefits. It is adaptable to

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new experiences and improved economic thinking. It is malleable, enabling courts to tailor rulings to a wide variety of facts. And it leaves room for case-by-case development and evolution of the law as circumstances change. Many have argued that "the antitrust statutes were written in broad terms," and that "learning over time can properly inform enforcement approaches."93 The Supreme Court explained in State Oil Co. v. Khan:

In the area of antitrust law, there is a competing interest, well represented in this Court’s decisions, in recognizing and adapting to changed circumstances and the lessons of accumulated experience. Thus, the general presumption that legislative changes should be left to Congress has less force with respect to the Sherman Act in light of the accepted view that Congress "expected the courts to give shape to the statute’s broad mandate by drawing on common-law tradition." . . . Accordingly, this Court has reconsidered its decisions construing the Sherman Act when the theoretical underpinnings of those decisions are called into serious question."94

Some reform advocates argue that the laws should be updated to impose blanket rules on certain conduct or mergers by certain market participants in certain industries. But such full-scale revisions may well end up harming the very thing they are trying to protect. The concept that over-deterrence may be antithetical to protecting the competitive process is often cited by courts. In Trinko, the court refused to extend exceptions to the right to refuse to deal, noting "[m]istaken inferences and the resulting false condemnations ‘are especially costly, because they chill the very conduct the antitrust laws are designed to protect.’"95 As several commentators have recognized, courts have properly adopted a bias in favor of false negatives (rather than false positives) on the rationale that procompetitive behavior erroneously condemned leads to the permanent loss of the benefits of the conduct, while anticompetitive conduct erroneously permitted may be temporary due to the market’s self-correcting nature.96 If anything, this rationale applies with more force to digital markets than to other sectors, given the rapid pace of technological change, which can quickly produce enormous new benefits while turning dominant firms into also-rans.

Take, for example, proposed legislation that bans "self-preferencing,"—i.e., a vertically integrated platform giving its downstream products an advantage over those of third parties. "Self-preferencing" has become a loaded term; mere mention of it seems to invoke automatic condemnation. But self-preferencing refers to a wide range of scenarios, with varying justifications and competitive effects. On the one hand, it includes Microsoft’s pre-installation of its own internet browser at the expense of Netscape Navigator, a form of self-preferencing found to be illegal in the particular circumstances in that case because the practice maintained Microsoft’s monopoly in the operating system market. On the other hand, self-preferencing also includes situations where a company becomes vertically integrated to efficiently supply a more innovative, attractive product that benefits consumers. Such integration is often procompetitive.97 Nor is self-preferencing unique in digital markets. Supermarkets, for example, have a long history of selling their own private label products by giving those products preferred shelf placement.98 Some have argued that a big reason private label products exist, and are cheaper than branded products, is that self-preferencing allows retailers to spend less on other forms of marketing.99Retailers often place their products in preferred locations next to comparable branded products to encourage private-label purchases. As to all of this conduct—whether in digital markets or elsewhere—blanket rules are neither necessary nor desirable at this juncture. The Rule of Reason enables courts to invalidate self-preferencing when it is demonstrated to be anticompetitive (including when it stifles innovation), while permitting it in markets and circumstances where it promotes innovation and competition.

Banning acquisitions of nascent competitors also comes with risks. Acquisitions of small firms by

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large firms can in many instances enhance, rather than deter, incentives for innovation.100 Some innovations are radical and disruptive, and firms developing these innovations often intend to displace incumbent firms. Yet other innovations are incremental and build on the prior innovations of incumbent firms. For incremental innovators, the reason for innovation may be acquisition. In a recent Senate Judiciary Committee hearing, a serial entrepreneur testified that acquisitions "enable startup investors to reclaim their invested capital, realize any gains, and recycle their capital into the next generations of startups, fueling the ongoing process of innovation-led economic growth and job creation."101 A recent study by the FTC demonstrates that an overwhelming majority of non-reportable acquisitions by large technology firms were less than ten years old and were likely startups.102 This suggests that acquisition by an incumbent is an important exit strategy. Further, an incumbent’s acquisition of a nascent competitor may enhance the merged firm’s ability to fully develop, monetize, and/or distribute innovations. By enabling the startup to capture a higher share of the value of the innovation, acquisition by an incumbent may increase incentives to invest in innovation.

Finally, some have proposed shifting the burden of proof to the merging parties in certain merger challenges brought by the government. Rather than the government shouldering the burden to prove that a transaction may substantially lessen competition, the proposed reform imposes upon the merging parties the burden of proving the proposed transaction would not materially harm competition. This too raises significant issues. It can be difficult to prove a negative—i.e., that a proposed merger would not harm competition. Further, presumptively banning every deal involving companies of a certain size would undoubtedly make procompetitive deals more costly. Not only would the merging parties bear the cost of making the new showing, but close calls may be decided in favor of the party without the burden. In sum, shifting the burden may deter benign or procompetitive transactions.


There is a long history of enforcers and private plaintiffs using current or prospective harm to innovation to support antitrust claims. As the agencies and private plaintiffs continue to pursue more innovation cases, the antitrust laws will continue to adapt to facts and improved economic thinking. This adaptation is at the heart of the antitrust laws, which evolve through a common law process "as circumstances change and learning grows."103 This natural evolution should not be disrupted at this time.



1. Lin W. Kahn and David C. Kiernan are partners in the Antitrust and Competition Law Practice at Jones Day. Alyxandra Vernon is an associate in the New Lawyers Group at Jones Day. Maya Baumer is an associate in the Antitrust and Competition Law Practice at Jones Day. The views and opinions set forth herein are the personal views or opinions of the authors; they do not necessarily reflect views or opinions of the law firm with which they are associated.

2. The California Law Revision Commission was created in 1953 as the permanent successor to the Code Commission and given responsibility for the continuing substantive review of California statutory and decisional laws. The Commission studies the law and recommends legislation to make needed reforms.


4. See, e.g., Tim Wu, Taking Innovation Seriously: Antitrust Enforcement If Innovation Mattered Most, 78 Antitrust L.J. 313 (2012) ("For decades now, experts and scholars have agreed that if maximizing consumer welfare is the point of antitrust law, then the protection and promotion of innovation should be an important and perhaps the paramount goal of antitrust enforcement. . . . Nearly everyone agrees with these points. But if a law is capable of giving lip service to an idea, it has often done just that. Far from becoming central to the law’s mission, the use of the law to promote innovation has actually retreated."); Lina M. Khan, Note, Amazon’s Antitrust Paradox, 126 Yale. L.J. 710 (2017) ("[I]t is fair to say that a concern for innovation or non-price effects rarely animates or drives investigations or enforcement actions—especially outside of the merger context.").

5. See, e.g., Lina M. Khan, Note, Amazon’s Antitrust Paradox, 126 Yale. L.J. 710 (2017).

6. Tim Wu, The Curse of Bigness: Antitrust in the New Gilded Age 74 (2018), available at

7. Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application ¶ 704d.

8. Verizon Commons., Inc. v. Law Offices of Curtis V. Trinko, 540 U.S. 398, 407 (2004).

9. FTC v. Qualcomm Inc., 969 F.3d 974, 988, 991 (9th Cir. 2020).

10. See, e.g., Areeda & Hovenkamp, supra note 7 at ¶ 704d.

11. See Complaint ¶ 14, Intel Corp., FTC Dkt. No. 9288 (June 8, 1998), (alleging that Intel’s conduct diminished the incentives to innovate); Complaint ¶ 83, United States v. Visa, Inc., No. 1:98-cv-07076 (S.D.N.Y. Oct. 7, 1998) (alleging that many products, services, and innovations that would have emerged in a competitive environment were never even considered by Visa and Mastercard).

12. Between 2004 and 2014, the DOJ and FTC challenged 250 mergers and alleged harm to innovation in 84 of them. See Richard J. Gilbert & Hillary Greene, Merging Innovation into Antitrust Agency Enforcement of the Clayton Act, 83 Geo. Wash. L. Rev. 1919, 1933 (2015); see also, e.g., Complaint ¶ 6, United States v. Halliburton Co., No. 1:16-cv-00233 (D. Del. Apr. 6, 2016) (alleging that merger of two oilfield services companies would leave exploration and production companies with one fewer supplier driving innovation and development of new technologies); Complaint ¶¶ 57-58, Otto Bock HealthCare N. Am., Inc., FTC Docket No. 9378 (Dec. 20, 2017), (alleging consummated merger reduced innovation competition in product features and functionality of microprocessor prosthetic knees).

13. Competition in the Technology Marketplace, FTC, (last visited Mar. 8, 2023).

14. 253 F.3d 34 (D.C. Cir. 2001) (en banc) (per curiam).

15. Id. at 58, 61, 67, 74.

16. Id. at 65.

17. United States v. Microsoft Corp., 84 F. Supp. 2d 9, 111 (D.D.C. 1999).

18. Id. at 112.

19. See Microsoft Corp., 253 F.3d 34; see also Rambus Inc. v. FTC, 522 F.3d 456, 464 (D.C. Cir. 2008) (discussing Microsoft Corp.).

20. Complaint for Equitable Relief for Violations of 15 U.S.C. § 1, United States v. Visa U.S.A., No. 98-cv-7076, 1998 WL 34279897 (S.D.N.Y. Oct. 7, 1998).

21. Id. ¶ 39; see also id. ¶ 73 (alleging that under the proposals, new MasterCard innovations would have been made available only to member banks that agreed to favor MasterCard over Visa); id. ¶ 83 ("The anticompetitive effects of duality exceed what can be readily observed because many products, services, and innovations that would have emerged in a competitive environment were never even considered by the associations or their managements. Nevertheless, there are several instances in which the controlling banks have restrained critical competitive initiatives developed by the managements of Visa and MasterCard.").

22. United States v. Visa U.S.A., Inc., 344 F.3d 229, 234 (2d Cir. 2003).

23. Id. at 238, 241.

24. Id. at 240-41.

25. Id. at 241.

26. Id.; see also id. at 243 (agreeing with the district court that the procompetitive effects of the exclusionary rules did not outweigh the anticompetitive effects).

27. See Complaint, Intel Corp., FTC Docket No. 9288 (June 8, 1998),

28. Id. ¶ 13.

29. Id. ¶ 14.

30. Decision and Order, Intel Corp., FTC Docket No. 9288 (Aug. 3, 1999),

31. Press Release, Fed. Trade Comm’n, FTC Accepts Settlement of Charges Against Intel, FTC (Mar. 17, 1999),

32. See Areeda & Hovenkamp, supra note 7, at ¶¶ 2230a, 2220b3 (discussing that product exclusion by a standard-setting venture can cause harm to innovation when its "purpose or effect is to exclude from the market a product or process that consumers would prefer or that is cheaper to produce, but whose introduction would threaten the profits of firms making rival products").

33. 382 F.Supp.3d 1012, 1022 (S.D. Cal. 2019).

34. Id. at 1024; see also Apple, Inc. v. Samsung Elecs. Co., Ltd., No. 11-CV-01846-LHK, 2011 WL 4948567, at *6 (N.D. Cal. Oct. 18, 2011) (Apple sufficiently pled antitrust injury through its allegations that Samsung’s conduct in connection with standard setting organizations "chill[ed] competition to develop and sell innovative new UMTS-compliant products, resulting in increased prices and decreased quality and innovation."); Amended Consolidated Complaint ¶¶ 81, 85-86, In re Apple iPod iTunes Antitrust Litigation, Dkt. No. C-05-00037-JW(HRL), (N.D. Cal. filed Jan. 26, 2010)(alleging various harms to innovation as antitrust injuries).

35. 486 U.S. 492, 500 n.5 (1988). In Allied Tube, the plaintiff alleged that the manufacturers of steel conduit conspired to remove plastic conduit from the market by manipulating the standard-setting process. Id. at 496. There, the defendant’s employees and agents had packed the standard-setting body and were instructed to blindly vote at a standards meeting against the plastic conduit. This effectively excluded plastic conduit from the market for an illegitimate and collusive reason. Id. at 496-97. See also Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 310 (3d Cir. 2007) ("As the Supreme Court acknowledged in Allied Tube, and as administrative tribunals, law enforcement authorities, and some courts have recognized, conduct that undermines the procompetitive benefits of private standard setting may, at least in some circumstances, be deemed anticompetitive under antitrust law.").

36. 576 F. Supp. 3d 1331, 1340-41 (N.D. Ga. 2021).

37. Id. at 1352.

38. Id. at 1351 (quoting Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application ¶ 704d at 234-35 (4th ed. 2015)).

39. 3 F. Supp. 2d 1255, 1272 (N.D. Ala. 1998), vacated, 195 F.3d 1346 (Fed. Cir. 1999).

40. Id. Note the decision was vacated on appeal because the Federal Circuit found that Intel and Integraph were not actually competitors.

41. Allied Orthopedic Appliances, Inc. v. Tyco Health Care Grp. L.P., No. CV, 2008 WL 7346921, at *11 (C.D. Cal. July 9, 2008), aff’d sub nom. Allied Orthopedic Appliances Inc. v. Tyco Health Care Grp. LP, 592 F.3d 991 (9th Cir. 2010)(citing to Cal. Comp. Prod. Inc., v. IBM, Corp., 613 F.2d 727, 744 (9th Cir. 1979)).

42. 592. F.3d 991, 998 (9th Cir. 2010) (quotation marks and citation omitted).

43. Id. at 1002.

44. 138 S.Ct. 2274, 2282 (2018).

45. U.S. Dep’t of Justice & Fed. Trade Comm’n, Horizontal Merger Guidelines (2010), reprinted in 10 Trade Reg. Rep. (CCH) ¶ 13,100, § 4 (including a section titled "Innovation and Product Variety," which states "[c]ompetition often spurs firms to innovate" and that a merger may harm innovation by "encouraging the merged firm to curtail its innovative efforts below the level that would prevail in the absence of the merger," which could cause "longer-run effect[s]"). In 1995, the Justice Department issued antitrust guidelines for intellectual property licensing that emphasized a concern with competition to innovate. U.S. Dep’t of Justice, Antitrust Guidelines for the Licensing of Intellectual Property § 3 (1995).

46. U.S. Department of Justice & Federal Trade Commission, Horizontal Merger Guidelines (2010), at §§ 1, 6, 6.4, 10.

47. Id. § 6.4.

48. Id.

49. Gilbert & Greene, supra note 12 at 1932-43 ("[B]oth the DOJ and the FTC allege adverse innovation effects in a very large fraction of their respective merger challenges in high-R&D-intensity industries.").

50. Id. at 1933 (FTC alleged harm to innovation in 54 cases, whereas the DOJ alleged harm to innovation in 30 cases).

51. Id. at 1935.

52. Opinion of the Commission at 1-2, Illumina, Inc., Docket No. 9401 (Mar. 31, 2023),; see also Matthew Perlman, FTC Orders Illumina to Unwind Grail Deal, Law360 (Apr. 3, 2023),

53. Id. at 40-41 (Mar. 31, 2023).

54. Id. at 44.

55. Id.

56. Complaint ¶¶ 21, 54, Nvidia Corp., FTC Docket No. 9404 (Dec. 2, 2021)

57. Id. ¶¶ 16, 17.

58. Press Release, Fed. Trade Comm’m, FTC Sues to Block $40 Billion Semiconductor Chip Merger, (December 2, 2021),

59. See Complaint ¶48, Nvidia Corp., FTC Docket No. 9404 (Dec. 2, 2021) see also id. ¶ 74 ("Consequently, the Proposed Acquisition is likely to result in a substantial lessening of competition in the DPU SmartNIC market leading to reduced innovation and more expensive or lower quality products.").

60. Id. ¶ 114.

61. Press Release, Fed. Trade Comm’n, Statement Regarding Termination of Nvidia Corp.’s Attempted Acquisition of Arm Ltd., FTC (Feb. 14, 2022), ("Upon termination of the proposed transaction with Nvidia, Softbank and Arm announced plans for an initial public offering of Arm, citing forecasts of ‘both record revenues and record profits for this year’ and ‘a very highly profitable and cash-generative business’" that will ‘continue to innovate for our customers, which is what Arm has always done and we will do on an accelerating basis going forward.’").

62. Complaint, Lockheed Martin Corp., FTC Docket No. 9405, ¶ 3 (Jan. 25, 2022),

63. Id. ¶ 1.

64. Id. ¶ 13.

65. Id.; see also id. ¶ 14 ("Preventing such potential anticompetitive exchanges of information is necessary to maintain effective competition in the Relevant Markets to ensure that innovation, price, and/or performance for these important U.S. military systems is not negatively impacted.").

66. Id. ¶ 15.

67. Press Release, Fed. Trade Comm’n, Statement Regarding Termination of Lockheed Martin Corporation’s Attempted Acquisition of Aerojet Rocketdyne Holdings Inc., FTC (Feb. 15, 2022),

68. Org. for Econ. Co-Operation & Dev., Start-ups, Killer Acquisitions and Merger Control—Note by the United States 6 (June 11, 2020),

69. See Illumina, Inc., FTC Docket No. 9387 (complaint filed December 17, 2019 and parties jointly moved to dismiss on the grounds that the merger was terminated on January 3, 2020); see also Press Release, Illumina and Pacific Biosciences Announce Termination of Merger Agreement (Jan. 2, 2020),

70. See Complaint, United States v. Visa Inc., No. 3:20-cv-07810 (N.D. Cal. Nov. 5, 2020),

71. See Press Release, U.S. Dep’t of Just., Visa and Plaid Abandon Merger After Antitrust Division’s Suit to Block, (Jan. 12, 2021),; see also Brent Kendall et al., Visa Abandons Planned Acquisition of Plaid After DOJ Challenge, The Wall Street Journal (Jan. 12, 2021),

72. See Complaint, FTC v. Facebook, Inc., No. 1:20-cv-3590 (D.D.C. Jan. 13, 2021),

73. See Minute Order, United States v. Google, No. 1:20-cv-3010 (D.D.C. Dec. 18, 2020) ECF No. 80.

74. United States v. Google, No. 1:23-cv-0108 (E.D. Va. Jan. 24, 2023); see Press Release, U.S. Dep’t of Just., Justice Department Sues Google for Monopolizing Digital Advertising Technologies, (Jan. 24, 2023),; see also Lauren Feiner, The DOJ’s Antitrust Case Against Google is Ambitious But Risky, CNBC (Jan. 27, 2023),

75. Complaint, United States v. UnitedHealth Grp. Inc., No. 22-cv-481, 2022 WL 576918 (D.D.C. Feb. 24, 2022).

76. Press Release, U.S. Dep’t of Justice, Justice Department Sues to Block UnitedHealth Group’s Acquisition of Change Healthcare (Feb. 24, 2022),

77. Id. ¶ 11.

78. Id. ¶ 89.

79. Id.

80. United States v. UnitedHealth Grp. Inc., ___ F. Supp. 3d ___, 2022 WL 4365867, at *1 (D.D.C. Sept. 21, 2022).

81. Id. at *24.

82. Id.

83. Id.

84. Id. at *25. The court also found that the government did not prove that any harm to innovation would be "substantial," as required by the Clayton Act. Id.

85. Press Release, Fed. Trade Comm’n, FTC Seeks to Block Virtual Reality Giant Meta’s Acquisition of Popular App Creator Within, FTC (July 27, 2022),

86. Complaint, FTC v. Meta Platforms, Inc., No. 3:22-cv-04325 (N.D. Cal. July 27, 2022),

87. Id. ¶¶ 15, 139.

88. FTC v. Meta Platforms, Inc., No. 5:22-cv-04325, 2023 WL 2346238, *27 (N.D. Cal. Feb. 3, 2023).

89. United States v. Microsoft Corp., 253 F.3d 34, 59 (D.C. Cir. 2001) ("[I]f the monopolist’s procompetitive justification stands unrebutted, then the plaintiff must demonstrate that the anticompetitive harm of the conduct outweighs the procompetitive benefit.").

90. Areeda & Hovenkamp, supra note 7 at ¶ 704d.

91. Id.

92. See, e.g., City of Oakland v. Oakland Raiders, 20 F.4th 441, 462 (9th Cir. 2021) (Bumatay, J., concurring) ("Oakland’s price-fixing claim relies on speculation upon speculation to connect its injury to the NFL’s entry rule.").

93. Leon B. Greenfield et al., Antitrust Populism and the Consumer Welfare Standard: What Are We Actually Debating, 83 Antitrust L.J. 393, 399 (2020).

94. 522 U.S. 3, 20-21 (1997) (quoting Nat’l Socy of Pro. Eng’rs v. United States, 435 U.S. 679, 688 (1978); see also Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 732 (1988) ("The Sherman Act adopted the term ‘restraint of trade’ along with its dynamic potential. It invokes the common law itself, and not merely the static content that the common law had assigned to the term in 1890."); Leegin Creative Leather Prods. Inc. v. PSKS, Inc., 551 U.S. 877, 900 (2007), 551 U.S. at 900 (holding that stare decisis did not compel continued adherence to the per se rule against vertical price restraints in the face of "respected authorities in the economic literature," and the Department of Justice and Federal Trade Commission’s experience evaluating vertical restraints).

95. Law Offices of Curtis V. Trinko, 540 U.S. at 414.

96. Alan Devlin & Michael Jacobs, Antitrust Error, 52 William & Mary L. Rev. 75 (2010); see also Geoffrey A. Manne & Joshua D. Wright, Innovation and the Limits of Antitrust, 6 J. Comp. L. & Econ. 153, 167 (2010) ("Type 1 errors [false positives] are likely to be more costly than Type 2 errors because market forces offer place some constraints on the latter but no the former."),; Frank H. Easterbrook, Limits of Antitrust, 63 Tex. L. Rev. 1, 15 (1984) ("[T]he economic system corrects monopoly more readily than it corrects judicial errors").

97. D. Daniel Sokol, Vertical Mergers and Entrepreneurial Exit, 70 Fla. L. Rev. 1357, 1366-1367, 1371-1374 (2018) (demonstrating various procompetitive benefits to vertical integration, including efficiencies, increased innovation, and reduced costs),

98. Trelysa Long, History Shows How Private Labels & Self-Preferencing Help Consumers, Info. Tech. & Innovation Foundation (Nov. 30, 2022),

99. Id.

100. Julie Carlson, The Platform Competition and Opportunity Act Is a Solution in Search of a Problem, Info. Tech. & Innovation Found. (Jan. 31, 2022),

101. The Impact of Consolidation and Monopoly Power on American Innovation: Hearing Before the Subcomm. on Competition Policy, Antitrust, and Consumer Rights, 117th Cong. 2 (2021) (statement of Bettina Hein, Founder and Chief Executive Officer, juli),2,

102. Fed. Trade Comm’n, Non-HSR Reported Acquisitions by Select Technology Platforms, 2010-2019: An FTC Study 25 (Sept. 2021),

103. Frank H. Easterbrook, Is There a Ratchet in Antitrust Law?, 60 Tex. L. Rev. 705, 706 (1982).

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