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83 Antitrust L.J. 293 (2020)
The Logic of Market Definition

handle is hein.journals/antil83 and id is 305 raw text is: 













            THE LOGIC OF MARKET DEFINITION


                               DAVID   GLASNER
                             SEAN   P. SULLIVAN*


   For more  than  a half century, antitrust trials have usually begun  with  the
definition of a relevant market for the inquiry. Long  experience  has given this
exercise an air of familiarity, but closer examination reveals market  definition
to be a  confused  exercise. Decades   ago, Robert  Pitofsky remarked   that no
aspect of  antitrust enforcement  has been  handled  nearly  as badly  as market
definition.1 That sentiment  remains  frustratingly apt today.2 Despite its long
tenure in antitrust analysis, and despite the crucial role it has played in many a
case and  investigation, the process of defining relevant markets  remains  both
confused  and  uncertain.

   Why  do  we define  markets?  How  should  we  define them?  One  might  think
that such fundamental   questions would  have  long been  settled. But the some-
times  unclear rationale for the exercise, and  its inconsistent evolution in the


   * David Glasner is an economist at the Federal Trade Commission, Bureau of Economics.
Sean Sullivan is associate professor of law at the University of Iowa College of Law and an
Associate Editor of the Antitrust Lw Journal. This article reflects the personal views of the
authors. It does not necessarily represent the views of the U.S. Government or Federal Trade
Commission, which have neither approved nor disapproved its content. The authors thank Chris-
tine Bartholomew, William Bishop, Aaron Edlin, Joshua Goodman, John Kirkwood, Christopher
Leslie, Matt Ralph, Daniel Sokol, Spencer Weber Waller, Gregory Werden, and conference par-
ticipants at the 2019 meeting of the American Law and Economics Association for thoughtful
comments on earlier drafts of this article. Alexander Asawa, Kassandra DiPietro, Reid Shepard,
and Madison Tallant provided superlative research assistance.
   i Robert Pitofsky, New Definitions of Relevant Market and the Assault on Antitrust, 90
COLUM. L. REv. 1805, 1807 (1990); see also Donald F. Turner, The Role of the Market Con-
cept in Antitrust Law, 49 ANTITRUST L.J. 1145, 1150 (1980) (Let me turn now to what some of
the current problems are with market definition. I have to say at the outset that as a general
matter this whole area is a bloody mess.).
   2 See, e.g., Louis Kaplow, Why (Ever) Define Markets?, 124 HARV. L. REv. 437, 466 (2010)
([T]here is no canonical, operational statement of the standard for determining what constitutes
a relevant market and, a fortiori, no developed underlying rationalization for whatever the princi-
ple might be.); William Blumenthal, Why Bother?: On Market Definition Under the Merger
Guidelines, Statement before the FTC/DOJ Merger Enforcement Workshop 2 (Feb. 17, 2004),
www.justice.gov/sites/default/files/atr/legacy/2007/08/30/202600.pdf ([T]he meaning of 'rele-
vant market' today ... probably is not understood by more than 500 people on the planet.).


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