Essential Facilities Fallacy: Big Tech, Winner-Take-All Markets, and Anticompetitive Effects

There have been calls to treat data as an essential facility to reduce barriers to entry in the digital economy where a “winner-take-all” dynamic is often present. In such markets, traditional enforcement may fail to enjoin conduct, or an acquisition, that lowers welfare in expectation because anticompetitive effects, regardless of their magnitude, are given no weight if deemed unlikely to occur. The authors consider several proposals to fine-tune competition law and argue that calls to regu