Revival of the Essential Facility Doctrine is not Essential; Joint Agency Guidelines will Better Strengthen Monopolization Law

The Executive Branch, Congress, and the federal enforcement agencies are focused on the competitive impact of large, allegedly dominant technology platform companies.  The House’s Competition in Digital Markets majority report recommends major changes to antitrust law, but such changes are unlikely to be adopted. The Federal Trade Commission has adopted an expansive policy statement on the scope of what constitutes unfair methods of competition, but the policy statement appears inconsistent with developments in antitrust law over the past four decades and thus may not be sustainable. As an alternative to legislative change and revival of less credible theories of competitive harm, this article proposes that the antitrust enforcement agencies promulgate Platform Competition Guidelines that articulate a competitive effects analysis within the scope of the burden shifting approach applied in the horizontal merger guidelines.

By Bilal Sayyed^[1]

I. INTRODUCTION

The majority staff report of the House of Representative’s recent Investigation of Competition in Digital Markets (“Majority Report”) recommends (i) that “Congress consider revitalizing the ‘‘essential facilities’’ doctrine … [and] overrid[e] judicial decisions that have treated unfavorably essential facilities and refusal to deal-based theories of harm.”^[2] The majority report made several other recommendations to “rehabilitate monopolization law” because “over recent dec