A N T I T R U S T M O D E R N I Z A T I O ... - ncbfaa

R E P O R T A N D R E C O M M E N D A T I O N S 29Chapter ISubstantive Standards Of Antitrust LawIn this Chapter the Commission discusses aspects of the current substantive standards ofantitrust law. Those standards should meet several criteria. The rules of antitrust must beeconomically sound and flexible enough to accommodate new economic learning andchanges in the nature of competition. The rules also should be clear, predictable, and administrable,so that businesses can comply with them and courts can administer them.Clarity, predictability, and administrability can be hard to maintain in a system that is flexibleenough to adapt to new economic learning and changing business environments. Forexample, per se rules that deem specified conduct automatically illegal are clear, predictable,and administrable. Yet the courts, scholars, and antitrust practitioners havereached consensus that—although appropriate in particular limited circumstances—per serules can all too often condemn business conduct that actually benefits, not harms, consumers.As antitrust law has more fully incorporated economic learning into the substantiverules of antitrust, the courts and the antitrust agencies have sought to develop revisedrules that combine economically sound principles and flexible analysis with clarity, predictability,and administrability.This Chapter first reviews these developments and then discusses their application inindustries in which innovation, intellectual property, and technological change are centralfeatures. Chapter I.A discusses general antitrust standards in light of the competitiveforces at work in the twenty-first century. Chapters I.B and I.C review two areas of antitrustanalysis—mergers and exclusionary conduct—in greater depth. Finally, Chapter I.D, in lightof the importance of intellectual property to competition in a high-technology economy,briefly discusses how the operation of patent law can affect competition as well.