As U.S. regulators examine potential antitrust actions against Alphabet (Google) and Meta (Facebook) under the Clayton and Sherman Acts, they focus on several key behaviors and market outcomes that are believed to hinder competition.
The question of intent or actions to reduce competition has been raised in that regard and the notion strikes me as quite complicated, given the obvious fact that digital goods markets (content, software, hardware, computing services) in particular often have a “winner take all” character.
In other words, the result of robust competition is market concentration. That also seems to be the case for capital-intensive industries of most types as well. But “intent” is alleged to be at work.
Did Meta, for example, “buy” other promising firms to acquire engineering talent? Most of us would say that is a common practice in digital industries. Did Meta acquire some firms to build a position in related or adjacent industries? One might argue that also is true, but not illegal.
And the “winner take all” pattern we see in many digital industries or industry segments might likewise not be viewed as an outcome driven mostly by “intent” to prevent competition but to remain competitive in markets where innovation is constant.
In U.S. antitrust law, the role of "intent" depends on the specific legal framework being applied, primarily under the Sherman Act (Sections 1 and 2) or the Clayton Act, some undoubtedly would note.
Under Section 1 of the Sherman Act, which prohibits agreements "in restraint of trade" (cartels, price-fixing), intent is not a central element for proving a violation in cases of "per se" illegal conduct. If companies explicitly collude to fix prices or divide markets, the agreement itself and its effects on competition are what matter, irrespective of “intent.”
However, for "rule of reason" cases (where the conduct’s competitive effects are weighed), intent can play a supporting role. Evidence that firms aimed to suppress competition might bolster a case, but it’s not strictly required—empirical evidence of harm to consumers or market structure (e.g., higher prices, reduced output) is the core focus.
That noted, in “restraint of trade” cases, “intent” might strengthen a case for antitrust action.
Under Section 2 of the Sherman Act, which addresses monopolization or attempts to monopolize, intent becomes more relevant. To prove monopolization, two elements are needed: (1) possession of monopoly power in a relevant market (an empirical question about market share, barriers to entry), and (2) "willful acquisition or maintenance" of that power through exclusionary conduct (not just superior efficiency).
So “intent to exclude competitors” by buying them out can be part of the analysis, but it’s not sufficient on its own to prove antitrust violations. The issue remains the reality of market share, not “why did you do it” (intent) in a strict sense.
The Clayton Act (Section 7 on mergers) is arguably even more empirical. Section 7 prohibits acquisitions where "the effect may be substantially to lessen competition or tend to create a monopoly."
Intent to reduce competition isn’t strictly necessary. Regulators assess market concentration (Herfindahl-Hirschman Index) and competitive outcomes, irrespective of “intent.”
If a merger in a digital market (say, a dominant software firm buying a rival) risks entrenching market power, it can be challenged regardless of whether the firm explicitly aimed to squash competition or just wanted growth.
In cases like United States v. Microsoft (2001), the antitrust violation stemmed from specific exclusionary acts (tying Internet Explorer to Windows, restricting OEMs), not just its market dominance or intent to dominate.
In digital markets, where "winner-takes-most" dynamics are common, structural outcomes might always tend towards concentration. Are efforts to create customer “stickiness” anticompetitive? Are ecosystems? Are bundles of value necessarily anticompetitive?
And perhaps those will not prove decisive issues. Regulators will look for behavior: actions that harmed potential competitors.
Under the Sherman Act (Section 2 dealing with monopolization), regulators will analyze whether the firms companies have:
Obtained or maintained monopoly power through anticompetitive conduct
Used exclusive dealing arrangements to foreclose competitors
Leveraged dominance in one market to gain advantage in adjacent markets
Under Section 1 (Restraint of Trade), regulators will be looking at actions that:
Restrict competition between platforms and third parties
Include potentially anticompetitive terms in advertising or services contracts
Under the Clayton Act, dealing with the anticompetitive effect of mergers and acquisitions, regulators will look at:
Acquisitions of potential competitors (Instagram, WhatsApp, YouTube, Waze)
Whether these deals substantially lessened competition or created monopolies
"Killer acquisitions" of nascent competitors
Also, under the Clayton Act’s Section 3 relating to “exclusive dealing,” regulators will look at:
Default placement agreements (Google as default search engine)
Distribution arrangements that exclude rivals
For Alphabet, that likely means looking for:
Self-preferencing in search results and advertising markets
Tying of Google services to Android
Control of digital advertising technology stack
Restrictive agreements with device manufacturers
In the case of Meta, regulators will examine:
Network effects and data advantages creating barriers to entry
Acquisition strategy eliminating potential competitors
Interoperability restrictions
Data collection and privacy practices giving competitive advantages
“Intent” might not prove decisive, as the regulator focus might turn on empirical market outcomes almost exclusively.
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