In this episode, former AAI Vice President of Policy Laura Alexander discusses the concept of countervailing power and the controversial role it plays in antitrust and competition law with NYU Associate Professor Daniel Francis, one of the leading voices on this subject. The idea that otherwise unlawful cartels, mergers, and collaborations should be allowed between companies facing a monopolists or monopsonists across the bargaining table is a tantalizing perceived solution to counteract the very real problem of persistent market power. Deploying such countervailing power, however, is also fraught with serious risks for competition and consumers. As Francis explains, such collaborations rarely improve competition or minimize the impact of market power on consumers, but do often lock-in or increase existing market power and slow innovation. The conversation starts with an overview of the concept of countervailing power as an antitrust and competition tool, and then goes on to discuss the Journalism Competition and Preservation Act, a bill being considered by the Senate that would apply countervailing power principles to create an exception to the antitrust laws for news organizations bargaining with large tech companies. Finally, the episode concludes with a discussion of why countervailing power remains a persistent idea in antitrust circles, despite its tension with antitrust’s longstanding commitment to competition.
Daniel Francis is an Assistant Professor of Law at NYU. He writes and teaches about regulation and competition — including antitrust, constitutional, and other rules that affect competition — with a particular interest in dynamic and high-tech markets. Francis previously served in the antitrust arm of the Federal Trade Commission as Senior Counsel, Associate Director for Digital Markets, and ultimately Deputy Director.