The Concept ofPotential Competition
This paper discusses the concept of potential competition as an important pro-competitive factor. While potential competition is inevitably subject to significant uncertainty, where it does exist, the paper suggests treating potential competition with a parity of esteem with respect to actual competition. The paper considers the benefits of extending the timeframe used to evaluate potential competition and reviews the tools that are available to assess it. It suggests such tools may be helpfully placed within a specific framework to enable assessment under the different and greater uncertainty that exists over potential competitive constraints. These tools include many that are already widely used, such as the additional weight placed on credible contemporaneous internal documents, progress against regulatory checkpoints, understanding of business models and of competition to innovate. Similarly, on the counterfactual it suggests following existing best practices such as pro-actively exploring alternative counterfactuals. Other suggestions involve the use of what in some jurisdictions might be newer tools – valuation analysis, forward-looking consumer surveys, spillover analysis of non-overlapping products in adjacent markets, and the development of specialist progress-to-market expertise. The paper also highlights existing trends by competition agencies to advocate for a change in existing decision-making frameworks to effectively protect against the loss of potential competition. In this respect, the paper suggests that there might be a case for using different thresholds for potential competition from those that are used when the concern is over the possible loss of an actual constraint.