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The overview of Hayek’s contribution to antitrust law has highlighted the need for some changes in our analyses. More than anything, humility should be the guiding principle of all reasoning. It implies to give more attention to error-cost analyses and to remove any kind of per se illegal and condemnation by object, because they give no room for economic truth and improvement of our assessing tolls. It also means to reject ordoliberalism and all structural analyses, because they lead to focus on the wrong elements.
With the very fast growing of high-tech markets, it becomes a prominent necessity not to consider structures and essential facilities as we did 20 years ago. Market shares move faster, barriers to entry the market tend to be much lower, and natural monopolies leave as fast as they come. In short, these markets are closer to Hayek’s spontaneous order than other ones. The fast growing of high-tech markets is leading us to update our antitrust approaches. We should take the opportunity to include more of Hayek’s rationale.
Hayek saw competition as a discovery process. The condition for that process to be sustainable is to favour the model of dynamic competition over perfect competition. A paradox clearly appears on this point. Indeed, very few persons argue that antitrust should promote perfect competition. However, not to take every single aspects of innovation into account, – for instance, by not including disruptive and permissionless innovations in our analyses – has for consequence to indirectly promote this model of perfect competition. For the reason, it is time to hold innovation as real antitrust standard.