Corporate & Securities Law

Antitrust Anachronism? Randy Picker on the Microsoft-Yahoo Search Deal

I recently commented on Gordon Crovitz’s WSJ column on the Microsoft-Yahoo deal arguing that antitrust was simply too cumbersome to deal competition issues in dynamic markets like search.  A short version of my take was that these concerns are often overstated in the areas of cartels and even sometimes in merger enforcement — but have their greatest bite in single firm conduct cases involving innovative markets where economic technology for detecting anticompetitive conduct is at its weakest and the stakes are highest.  Randy Picker (Chicago) chimes in on the Crovitz piece with an interesting take and a call for even-handed application of claims that antitrust is obsolete:

This misses of course one key point: absent antitrust review of search deals, this deal would not be taking place. This deal is only possible because the prior proposed deal between Google and Yahoo!?a 1-2 deal?was effectively blocked by precisely the same antitrust review process that Crovitz decries. (Disclosure: I consulted for the opposition to the Google?Yahoo! deal.) Absent that review, Google and Yahoo! would have done their deal and Microsoft would have been left on the sideline.

You can criticize whether the regulators should have blocked the Google-Yahoo! deal. That view would seem consistent with most of what Crovitz says about the difficulties of regulating these highly dynamic markets and the hope that Schmupeterian competition will suffice. But what we cannot do?and this I think is the error implicit in Crovitz?s piece?is to criticize the business review process for Microsoft?Yahoo! when it was precisely that process for Google-Yahoo! that made the new deal that Crovitz likes possible. Do reviews, don?t do reviews, but no selective criticism of this review without acknowledging the role that the review process played in creating the foundation for this deal. No reviews at all would have meant Google-Yahoo!, not Microsoft-Yahoo!.

Go read the whole thing.

Full post as published by Truth on the Market on August 09, 2009 (boomark / email).