A Private Revolution: Markovits and Markets, 64 Chicago-Kent Law Review 861 (1989).
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Although the title of Professor Markovits' article begins with the words "International Competition" and "Market Definition," the thrust of his article is not about the effect of international competition on market definition. Indeed, Markovits believes that the presence of foreign competitors should not influence the way in which markets should be defined because, in Markovits' words, "markets should never be defined at all."

For Markovits, the judicial and academic interpreters of the Clayton Act have erred in assessing whether a merger will tend to lessen competition by calculating the market shares and market concentration. Markovits' major thesis is clearly that the traditional market-oriented approach to competitive-impact analysis is not cost-effective, and should be replaced by his own non-market approach. His minor thesis, and the article's nexus with this Symposium, is that "the presence of international competition makes the market-oriented approach even more conventionally cost-ineffective" and therefore the internationalization of the economy militates even more in favor of his non- market approach.

This is not Markovits' first attack on the market-oriented approach. For the uninitiated, the article is likely to be hard going as Markovits "elaborates, refines, and summarizes" the theoretical framework of his previous works. The piece relies on a broad array of terms which Markovits coined in earlier pieces.

In this Comment, I intend to follow Markovits' lead and, notwithstanding the Symposium's title bypass many issues of international competition. Like Markovits, I see few theoretical reasons why the increasing importance of international competition should change our "meta-theory" of merger analysis. To be sure, we must resist the temptation to draw geographical markets by political borders if we are interested in uncovering the economic realities. Applying one's meta-theory to the international context may raise issues without domestic antitrust counterparts. For example, in estimating the ease of entry or the elasticity of foreign supply, special attention needs to be paid to tariffs, quotas and idiosyncratic aspects of international trade (such as monetary exchange risks).

In this Comment, I will respond to Markovits' attack on the market-oriented approach and, in brief, sketch an economic defense for defining markets and caring about market concentration. In the first section, I contrast traditional methods of defining markets with the Justice Department Merger Guidelines. The Guidelines' approach to market definition is a significant advance over the traditional criteria for market definition and, contra to Markovits' thesis, makes market definition less arbitrary. The second section apologizes for assessing competitive impact with inter alia concentration figures such as the Herfindahl-Hirschman Index. The final section embeds market definition and concentration analysis within the larger structural approach to identifying the likelihood of collusion.


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