Second, the story in any high-tech case should include all factors that may affect consumer choice and the flip-side—consumer opportunity—which is a supply side consideration. Why? For one thing, consideration of consumer choice enables consideration of all dimensions of competition, including non-price factors, that may be less measurable. Moreover, consideration of consumer opportunity enables one to take into account consumer preference that may be irrational (as behavioral economics suggests) as well as rational consumer preferences (which the Chicago and post-Chicago Schools assume). If one truly believes in the market, producers will gravitate toward producing goods/choice that most consumers want, whether their preferences are rational or irrational. Indeed, there is a strong argument that having the state call the shots respecting consumer choice not only defeats the outcome that market forces would dictate, but also smacks of the kind of “central planning” characteristic of a totalitarian state.
Third, as noted earlier, I still believe that an important element of all cases—including high tech cases (mergers and otherwise)—is defining the relevant market. I feel compelled to mention that because in some of the recent commentary on the revised merger guidelines, I think that requirement has gotten lost in translation. In my experience in cases involving the high-tech sector, the easiest way to define the relevant market is to figure out how the firm at issue monetizes its intellectual property or innovation. How does Google monetize its searches? How does Apple monetize its apps and iTunes? How does Facebook monetize public profiles? And so on. Identifying how firms monetize their bread and butter enables the agencies to zero in on who the
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