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Policy Watch: Antitrust Goes to College Steven C. Salop; Lawrence J. White The Journal of Economic Perspectives, Vol. 5, No. 3. (Summer, 1991), pp Stable URL:
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Policy Watch: Antitrust Goes to College Steven C. Salop; Lawrence J. White The Journal of Economic Perspectives, Vol. 5, No. 3. (Summer, 1991), pp Stable URL: The Journal of Economic Perspectives is currently published by American Economic Association. Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. The JSTOR Archive is a trusted digital repository providing for long-term preservation and access to leading academic journals and scholarly literature from around the world. The Archive is supported by libraries, scholarly societies, publishers, and foundations. It is an initiative of JSTOR, a not-for-profit organization with a mission to help the scholarly community take advantage of advances in technology. For more information regarding JSTOR, please contact Tue Nov 27 11:07: Journal of Economic Perspectives-Volume 5, Number 3-Summer 1991-Pagts Policy Watch Antitrust Goes to College Steven C. Salop and Lawrence J. White Public policies are often made without much recourse to economic reasoning. Economists are often unaware of what is happening in the world of public affairs. As a result, both the quality of public decision-making and the role that economists play in it are often less than optimal. This feature will publish short articles on topics that are currently on the agendas of policy makers and provide nonspecialists with a better understanding of the role of economic analysis in illuminating current debates. Suggestions for future columns and comments on past ones should be sent to Isabel V. Sawhill, c/o Jowmnl of Economic Perspectives, The Urban Institute, 2100 M Street N.W., Washington, D.C Introduction It nlay have come as a shock to many economists, especially those in academia, to learn that the Antitrust Division of the U.S. Department of Justice (DOJ) has been investigating alleged price fixing and information exchange of financial aid among 23 prestigious east coast colleges and universities. In May Stez~en C. Salop is Professor of Economics and Law, Georgf*tourn University I~ur(,'enter, and Guest Scholar, Brookings Institution, both in Washington, D.C. Lawrence J. White is the Arthur E. Imperatore Professor of Economics, Stem School of Business, New York University, New York, New York. Snlop has acted as n consultant for a mzdwestervz college in a DOJ inztestigation of college ttiition infomnulion exchclnge. 194 Journal of Economic Prr.\pec.tiur.\ 1991, the DOJ signed a consent decree with the eight Ivy League colleges as discussed in the Afterword. These schools include the Ivy overlap group -MIT, Brown, Columbia, Cornell, Dartmouth, Harvard, University of Pennsylvania, Princeton and Yale-and the Pentagonal/Sisters group -Amherst, Barnard, Bowdoin, Bryn Mawr, Colby, Mount Holyoke, Middlebury, Smith, Trinity, Tufts, Vassar, Wesleyan, and Williams. (At least one private antitrust case also has been filed, against Wesleyan.) We have no specific knowledge concerning the possible validity of these allegations or expertise about their legality. Rather, in this article, we wish to present the potential applicability of current antitrust doctrines to colleges and their conduct and the possible defenses that they might raise to justify their actions. U.S. antitrust laws are premised on the view that consumer welfare is maxinlized by competition, not by the joint decisions of sellers. The Sherman Antitrust Act has been called the Magna Carta of competition. At its core is the per se prohibition on joint price fixing by competitors; per se means that price fixing is illegal in and of itself, even in the absence of evidence of any effect on price levels. 'The Sherman Act also flatly rejects defendants' attempts to justify price fixing on the grounds that competition would be destructive or that competitive prices would be unreasonable. As the Supreme Court stated baldly in a 1940 price fixing case, U.S. ZJ.Socony-V(~cuumOil Co. (310 U.S. 150, ), Congress... has not permitted the age-old cry of ruinous competition and competitive evils to be a defense to price fixing conspiracies. It has no more allowed genuine or fancied competitive abuses as a legal justification for such schemes than it has the good intentions of the menlbers of the combination... Under the Sherman Act, a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging or stabilizing the price of a commodity in interstate conimerce is illegal prr sr. Given this rule, consider some of the alleged actions of the colleges listed above in allocating financial aid.' Until this year, when the meetings were canceled (under the pressure of the DOJ investigation), the admissions officers met each year to review the financial aid applications of potential students. (In 1990, following the DOJ investigation, Yale and Barnard did not attend.) At these meetings, the officers exchanged information about the family incomes and resources of applicants. They apparently stated their opinions about what the applicants' families could afford to pay. -10 this end, it is alleged that they agreed on a family contribution for college costs and off'ered financial aid 'There also have been allegations that groups of colleges nl;iy have fixed hculty salaries and that they exchanged infi~rniation on future tuition levels, ink)rrnation that could facilitate coordinated pricing of tuition. See Putka (1989) fijr details. '1'0 ti)c~~s the analysis, we have restricteti ourselves to the issue of financial aid. Steven C. Salop and Lawrence J. White 195 accordingly. Thus, if the admissions officers agreed that a student could afford to pay $4000 per year, then a college whose total annual costs were $20,000 would offer $16,000 in aid, while a college whose total costs were $25,000 would offer $2 1,000 in aid. Antitrust Analysis of Financial Aid Cooperation If we assume these are the facts, should this conduct be held to violate the Sherman Act? How might the colleges defend themselves? The colleges first might claim that their agreement did not violate the antitrust laws because it did not effectively reduce competition. After all, colleges still could compete by reducing the fraction of aid given as loans or work-study and increasing the fraction given as outright grants. This defense could succeed, but it will be a tough road for the colleges. Lack of effect is no defense to a price fixing claim under the Sherman Act. Furthermore, in the antitrust case Catalano v. Target Sales, Inc., 446 U.S. 643 (1980), where beer wholesalers agreed to offer similar credit terms to retailers, while continuing to compete on wholesale price, the Supreme Court held that there was an illegal price agreement. The simplest defense for the colleges might be that the antitrust laws do not apply to them. Under this defense, the universities would claim that they are different from the enterprises that form the bulk of the private sector of the U.S. economy. Colleges and universities are nonprofit institutions involved in education, not commodities. They are institutions of higher education and scholarship, not commerce. Many are government-run or -subsidized. But over the years, the courts clearly have stated that the antitrust laws, and the per se rule, govern all markets that have not been specifically exempted by congress.* Professionals such as doctors and architects are covered. Nonprofit entities like hospitals are covered, even those with religious affiliations. As for colleges, the NCAA college football network television contract was found to amount to an illegal agreement among NCAA colleges to restrict competition among themselves, though it was not declared per se illegal. Instead, it was found to be illegal under a rule of reason analysis, discussed below. Further, it seems quite reasonable to apply standard models of industrial organization to higher education. In this model, a university is an enterprise offering educational services as its primary output. Large universities are or example, insurance is exempted and left for the states to regulate, an exemption that currently is under heavy legislative attack. Labor is exempted to the extent that unions are permitted to bargain collectively with employers. Professional baseball was exempted from the strictures of the Sherman Act in 1922, by the Supreme Court in Federal Baseball Club v. National League (259 U.S. 2001, on the grounds that it was local, not interstate commerce. Other professional sports have been unable to replicate this trick, however. 196 Journal of Economic Perspectives multi-divisional enterprises, offering various degrees and differentiated products-like degrees in economics, English, fine arts and so on. Colleges sell these services to its student customers at a tuition price.3 Colleges discriminate among their customers by offering price discounts in the form of scholarships and low interest loans of varying amounts.. - Colleges and universities compete for student customers. There are a number of quality dimensions of this competition, including location, quality of professors, courses, fellow students, and social life.4 Price also is relevant to student choices. Any readers who doubt the relevance of price should ask themselves whether freshman applications would fall significantly at the college they attended (or now attend), if the college unilaterally increased tuition by 10 percent. Thus, higher education is not clearly outside the range of what normally is viewed as commerce. Moreover, the nonprofit, cooperative or governmental status of colleges does not make them unique. Hospitals, museums and other enterprises are ready examples elsewhere in the economy, as are mutually organized savings banks and insurance companies. Even nonprofits are concerned with revenue needs and competition, so they have an economic incentive to try to fix prices. Third-party payment of tuition has obvious parallels to health maintenance organizations and other forms of health insurance, and antitrust law clearly covers these services. Thus, the relevant question becomes one of whether (and how) college financial aid, rather than college education, is different or special. In this view, the colleges might try to justify their joint actions as consistent with the goals of the Sherman Act. Joint pricing by competitors is permitted under the antitrust laws under certain circumstances. For example, when GM and Toyota formed a joint venture to produce subcompact automobiles, they also were permitted to price the car jointly (Kwoka, 1989). Similarly, thousands of composers are members of the two performing rights collectives, ASCAP (American Society of Composers, Authors and Publishers) and BMI (Broadcast Music, Inc.). Each of these collectives, acting on behalf of its members, licenses the performance rights to the songs of its members to networks and other users on an all-ornothing basis. Under the blanket licenses offered by ASCAP and BMI to broadcasters, for example, licensees can play any song in the catalog of the respective group as often as desired, in exchange for the payment of a fraction of the licensee's advertising revenues. These examples raise two questions. First, how can any joint pricing escape the per se rule against price fixing? Second, what are the characteristics of the 30ther outputs include research, housing and meals for resident students, spectator sports for students, alumni and others, and so on. Many of these outputs also carry explicit prices. 4~ollegesalso compete in input markets, notably in the labor market for professors. This competition also is multi-dimensional, and some institutions may have market power. Policy Watch 197 exceptions? The Supreme Court's simple answer to the first question is perfectly circular. In an antitrust case against ASCAP and BMI (Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 44 1 U.S. 1 (1979)), the Supreme Court wrote, As generally used in the antitrust field, 'price fixing' is a shorthand way of describing certain categories of business behavior to which the per se rule has been held applicable. A clearer answer is that the per se rule applies to agreements that are virtually certain to be socially deleterious. One example of such an agreement is simple bid-rigging by competitors, where the price fixing is nakedv-that is, not accompanied by any other, pro-competitive activities. In this type of case, the per se rule means that the firms cannot defend naked restraints by claiming they did not have the market power to raise prices or by showing that there is no good evidence that prices actually were increased by their agreement. In such instances, where little or no good is likely to follow from the conduct, and the only issue is whether it caused significant harm, the per se rule economizes on legal process costs by foreclosing such a no harm defense. The no harm defense is permitted only under the rule of reason, which applies to cases where the courts are convinced that some efficiency benefits are likely, and possibly could offset the harms from any market power caused by the conduct. Courts have been willing to allow competitors to escape the per se rule by showing that joint pricing is not naked, but rather is reasonably necessary to the creation of efficiency benefits, or pro-competitive effects. For example, in the case of ASCAP's and BMI's blanket licenses, the joint pricing was said to be necessary for the creation and marketing of a new product valued by purchasers. In particular, the blanket license gave licensees unplanned, rapid and indemnified access to the entire repertory of compositions. Similarly, firms might show that joint pricing is procompetitive because it is necessary to increase production eficiency or otherwise reduce costs. For example, ASCAP captures scale economies by collectively monitoring and enforcing the copyrights of its members and collecting and distributing license fees. Not only is there a conventional scale economy, but if a licensee takes a blanket license (as opposed to licenses for a subset of individual composers), then there is no need to monitor that licensee at all for possible copyright infringement. If this type of efficiency claim is credible, then the courts will evaluate the practice under the rule of reason, which balances the likelihood of the harm from the exercise of market power against the likely magnitude of any efficiency benefits. (The Supreme Court has never stated, however, what balancing test should be used to compare gains in production efficiency against market power.) Given this, can the colleges credibly claim that their financial aid agreement is reasonably necessary to producing a better educational product? Consider one of the justifications offered by William R. Cotter, the president of Colby College and a former antitrust lawyer (Cotter, 1989). Mr. Cotter argues that agreeing to equalize the cost of education at different colleges improves students' decision-making. He states that, absent these agreements, many families would find the already difficult task of choosing a college distorted by the varied grant offers. The agreements thus aim to increase students' freedom to choose colleges on the basis of the most appropriate academic program, not the cost to the family. This justification, that removing price from the decision-making process is socially efficient, is unlikely to prevail in the courts. If the presidents of General Motors, Ford and other automakers tried to justify fixing the price of subcompact cars on these grounds, they likely would face stiff fines and treble damage suits, if not jail terms. According to antitrust doctrine (as well as standard microeconomic theory), it is generally efficient to have price included in buyers' and sellers' decisions. As for the possible confusion of buyers, it is a basic premise of a market system that competition leads to greater consumer welfare than collusion, even if consumer information is not perfect and decision-making is difficult and costly. The colleges might claim that financial aid also is different because the universities have limited financial aid budgets. They should not, as Cotter put it, be forced to be dragged in to a kind of'bidding war' for the best students, because if' that happened, colleges' expenditures would have to be reduced or tuition would have to be raised to meet financial aid costs. A bare claim of limited financial aid budgets cannot by itself be sufficient to carry the argument. If a bidding war ensued, financial aid budgets instead might be increased (that is, tuition prices cut to some students), at the expense of salaries or new buildings. Stated another way, do the colleges have proof that smaller scholarships for some students have led to lower tuition levels generally, rather than to fancier administrative offices or a new fimtball stadium? The bald claim is simply too unbounded to be useful to a court. If' it were accepted on its face, then a similar claim of limited salary budgets similarly could be used to justify jointly fixing hculty salaries. And suppose that tuition did not need to be raised. So what? Why should colleges be permitted to collude in order to benefit some students at the expense ofothers? To go further, suppose that the automobile companies attempted to justify jointly fixing prices at elevated levels with the argument that they thereby could finance R&D on new technologies. Or, that they were fixing the prices of fleet sales to offer lower prices on entry-level models to (mostly lower income) regular retail customers. Would those arguments be credible? And if they were, how could courts decide which cross-subsidies were in the public interest, without turning the entire economy into a series of regulated (by the courts) industries? The colleges might refbrmulate the previous argument as follows: A limit on financial aid competition allows a larger number of deserving students to attend elite colleges, by spreading the aid dollars more evenly, and this creates positive externalities for society, as well as for fellow tuition-paying students. Steven C. SaloF and Lawrenre J. Whzte 199 Similarly, positive externalities are created by increasing the income diversity of students attending these elite colleges. This formulation of the colleges' justification is stronger from an antitrust perspective-at least this argument has output increasing!-but this justification also suffers from potential unboundedness. Positive externalities are not unique to colleges. Forestry companies plant trees that prevent soil erosion, companies engage in RxcD that enriches society, and architects sometimes design buildings that are handsome landmarks. To make this justification more defensible, the colleges would have to demonstrate the existence of a substantial market failure. For example, the colleges might claim that the source of the market failure is the fact that the quality of the educational experience depends on the mix of students at the college. Students want to attend the school that the most-desired students are attending. If colleges bid high for the mostdesired students, they may be forced to raise tuition in a way that does not maximize welfare, or they may be unable to orer an optimal amount of aid to others.' This
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