EXCLUSION AS A CORE COMPETITION CONCERN

Exclusionary conduct is commonly relegated to the periphery in contemporary antitrust discourse, while price fixing, market division, and other forms of collusion are placed at the core of competition policy. Enforcers and commentators routinely describe anticompetitive exclusion as a lesser offense than anticompetitive collusion. The absence of rhetorical parity misleads because the two types of conduct harm competition in similar ways and are treated comparably in the framing of antitrust rules. Nor do policy considerations, whether or not discussed in error cost terms, suggest downplaying exclusion relative to collusion in antitrust enforcement. The rhetorical relegation of anticompetitive exclusion to antitrust's periphery must end. The more that exclusion is described as a lesser offense, the more its legitimacy as a subject for antitrust enforcement will be undermined and the greater the likelihood that antitrust rules will eventually change to limit enforcement against anticompetitive foreclosure when they should not. It is time to recognize that exclusion, like collusion, is at the core of sound competition policy.