Abstract Amazon/iRobot is a warning whereby ex-post shocks can expose the limits of current merger-control framework in assessing dynamic efficiencies. In innovation-intensive markets merger control can generate costly prediction errors when it undervalues acquisitions as routes to scale, investment, and exit, since blocking deals may also weaken entry incentives and operate in practice as a form of exit policy. Merger control should become more contestable, reflexive, and reversible, with dynamic efficiencies and incentive effects assessed as rigorously as foreclosure risks, and with remedies designed as adaptable when predictions prove wrong.
This article engages with the novel concept of "collective benefits" as introduced by the European Commission in its 2023 Horizontal Guidelines on Article 101 TFEU, where sustainability agreements are, for the first time, dealt with in a dedicated chapter. While the Commission frames the concept as a natural extension of the consumer welfare paradigm, our analysis demonstrates that it constitutes a substantive departure from established competition law. In contrast to the established distinction between use values and non-use values, both of which remain anchored in the consumer's individual willingness to pay, the collective benefits approach presupposes that consumers can express preferences not only with respect to their own consumption but also with respect to the consumption decisions of others, thereby substituting market choice with a form of social choice. We argue that such a substitution, even when couched in the language of willingness to pay, inevitably leads to a normative counterfactual that cannot be reconciled with the basic premises of antitrust analysis.
