Page:Intel, Apple, Google, Microsoft, and Facebook - Observations on Antitrust and the High-Tech Sector.pdf/12

 horizons. Over the long run, I think that should help lead the agencies to better results—an outcome with which even members of the defense bar may agree.

For the remainder of my remarks, I’d liked to switch gears and discuss a related topic, which are my thoughts on when and how the agencies should challenge mergers and conduct in the high-tech sector.

It will not surprise you to learn that, first and foremost, I believe the agencies should tell a good story that focuses on the resulting anticompetitive effects as opposed to relying—in some cases dispositively—on complex economic formulae, particularly simulation studies. Telling a story enables the Commission and courts to better consider the larger picture and, in turn, better predict what is likely to happen in dynamic, fastmoving markets by focusing the decision-maker on all of the relevant evidence including (1) whether the target has monopoly or near-monopoly power; (2) whether the firm is engaged in multiple or stand-alone practices; and (3) whether there is documentary or other evidence of intended results that illuminate the transaction or conduct’s likely effects (and not just what the economists think is likely to happen).

Telling a story is also advantageous because, quite simply, courts like stories instead of simulation studies—they understand a story better. And with good reason: in a piece published last year, Judge Vaughn Walker, who had extensive economic training and who presided over the Oracle trial, argued that generalist judges lack economic training (and often interest) and that, as such, if economic evidence is to be persuasive, it must be communicated in a way that a generalist can understand and must be consistent