Funk, MichaelJaag, Christian2018-12-132018-12-132018-12-132018-06-0110.1093/joclec/nhy008https://infoscience.epfl.ch/handle/20.500.14299/152033WOS:000443544000005The "more economic approach" was introduced to antitrust to achieve a more effect-based and theoretically grounded enforcement. However, related to predatory pricing it resulted in systematic over- and under-enforcement: Economic theory does not require dominance for predation to be a rational (and harmful) strategy, although an ex ante dominant firm would often refrain from predation. Hence, within the current legal framework which requires dominance for antitrust to apply, a more effect-based and theoretically grounded antitrust enforcement cannot pursue harmful predation. Therefore, we suggest separating predatory pricing from exclusionary abuse of a dominant firm, both legally and analytically. Instead, predatory pricing should be analyzed along the same logic as a merger. In particular, we argue that three elements from merger control should be adopted: in the absence of dominance, market share and/or turnover thresholds may serve as a de minimis rule; recoupment should be analyzed similar to the competitive effect of a merger between the predator and its prey; and a stronger efficiency defense should be established.EconomicsLawBusiness & EconomicsGovernment & Lawincomplete informationreputationmergersentrytext::journal::journal article::research article