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Bundled Rebates As Exclusion Rather Than Predation


  • Timothy J. Brennan


Prevailing tests for whether bundled rebate programs are anticompetitive, including the recent Antitrust Modernization Commission Recommendation 17, are based on whether some incremental or total price in the rebate program is less than some appropriate incremental cost. This test presumes that rebate programs, and exclusionary conduct more generally, should be treated like predation cases. It errs in treating the buyers as end users rather than competing complement providers, as they are in all of the leading U.S. and Canadian cases. Rebate programs should be assessed on the basis of whether they raise the price of a complement, such as retailing or distribution. This suggests a different two-prong test: Does the rebate cover a competitively significant share of a complement market? If so, what effect does the rebate have on the price that rivals have to pay to obtain the complement? This test allows the use of merger guideline approaches, ignores (for the most part) cost comparisons, and does not require prior dominance in the primary market. An assessment of this approach examines when practices are exclusionary, compares rebates to exclusive dealing, distinguishes exclusionary from predatory rebates, critiques “profit sacrifice” approaches to exclusion, and proposes share-based remedies to recognize vertical efficiencies.

Suggested Citation

  • Timothy J. Brennan, 2008. "Bundled Rebates As Exclusion Rather Than Predation," Journal of Competition Law and Economics, Oxford University Press, vol. 4(2), pages 335-374.
  • Handle: RePEc:oup:jcomle:v:4:y:2008:i:2:p:335-374.

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    Cited by:

    1. Nicholas Economides, 2014. "Bundling and Tying," Working Papers 14-22, NET Institute.

    More about this item

    JEL classification:

    • K21 - Law and Economics - - Regulation and Business Law - - - Antitrust Law
    • L1 - Industrial Organization - - Market Structure, Firm Strategy, and Market Performance
    • L11 - Industrial Organization - - Market Structure, Firm Strategy, and Market Performance - - - Production, Pricing, and Market Structure; Size Distribution of Firms
    • L12 - Industrial Organization - - Market Structure, Firm Strategy, and Market Performance - - - Monopoly; Monopolization Strategies


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