5 - Separation of Powers in Antitrust

Summary

Firms are not organized in a monolithic way; their organizations include checks and balances imposed by various sources. Separation of powers may be used, by analogy, in antitrust matters, especially to define organizational remedies or commitments. The search for an analogy between separation of powers and antitrust starts intuitively with the power of an agency or court to break up or unbundle a firm and naturally follows with merger control. A more promising avenue for analogy, though, resides in the fact that firms sometimes possess, de facto, regulatory powers in an industry, raising concerns inter alia on their organization. The reflection on organizational remedies or commitments is premised on the need for additional checks and balances within or on dominant firms whose platforms have a significant impact on society or democracy. It may ultimately lead to the creation of platform assemblies or parliaments. Finally, antitrust may also be raised as an argument or a defense to avoid or reduce sanctions and to get a merger approved.