Chapter 5 Categories of Economic-Efficiency Gains That Are and Are Not Relevant to Conduct’s Antitrust Legality

Abstract

The Welfare Economics of Antitrust Policy and U.S. and E.U. Antitrust Law will list the various narrowly-defined categories of economic inefficiency whose magnitudes both business conduct and antitrust policies can affect that I find useful to distinguish and will explain how such conduct and policies can and when they will increase and decrease each of these narrowly-defined categories of economic inefficiency. This chapter is much less ambitious. Section 1 delineates four broad categories and a few subcategories of economic inefficiency (resource misallocation) whose magnitudes business conduct and antitrust policies can affect. Section 2 lists the various categories of economic-efficiency gains and losses that business conduct can yield whose generation by any exemplar of business conduct is irrelevant to the conduct’s antitrust legality and explains why these economic-efficiency effects are irrelevant to the legality of the conduct that generates them under U.S. antitrust law and E.C. competition law. And Sect. 3 lists the various categories of economic-efficiency gains that business conduct can yield whose generation is either directly or indirectly relevant to its antitrust legality and explains briefly why the fact that conduct yields these categories of economic-efficiency gains does favor its legality under the U.S. Sherman Act, the U.S. Clayton Act, Article 101 of the 2009 Lisbon Treaty, Article 102 of the 2009 Lisbon Treaty, and the EMCR.