Economic Evidence and Modern Antitrust

The question of the continued relevance, persuasiveness, and sufficiency of economic evidence in assessments of antitrust matters in the digital age has become of increasing interest to commentators, academics, and regulatory and legislative bodies. A closely related question is the contention by some commentators that the courts’ narrow focus on the consumer welfare standard is ill-suited for dealing with the complexities of today’s world. In our view, the consumer welfare standard remains the gold standard for the analysis of antitrust concerns in the digital age. Beyond using consumer welfare as a metric for evaluating potential anticompetitive impact, the use of rigorous, fact-based economic analysis, matched to today’s market complexities, is more important than ever in helping develop a better understanding of the evolving digital world. A better understanding, in turn, will be crucial in helping the appropriate authorities legislate and regulate in ways that ensure strong competition without jeopardizing the benefits that result from the digital revolution.

By Rebecca Kirk Fair, Emily Cotton & Philipp Tillmann¹

I. INTRODUCTION

Many questions have been raised in the press,² by academics,³ and even by legislative bodies⁴ about the continued relevance, persuasiveness, and sufficiency of economic evidence in assessments of antitrust matters in the digital age. These questions cut across both regulation and litigation. Are judges starting to find the disco