# Presentation: 082761

## Exclusionary Conduct: Structuring an Approach to Monopolization Cases

-                **Tim Brennan**
**2006: T.D. MacDonald Chair in Industrial Economics****Competition Bureau, Industry Canada**
**Permanent:  Professor, Public Policy and Economics****University of Maryland, Baltimore County**
**Senior Fellow, Resources for the Future, Washington, DC**
_**[brennan.tim@cb-bc.gc.ca](mailto:Brennan.tim@cb-bc.gc.ca)**__**, brennan@umbc.edu**_
**Office of Fair Trading****London, England**
**19 June 2006**

## By way of introduction

**Personal background**
**Most experience US rather than Canada, references often to US law**
**8 yrs full-time with US Antitrust Division; “on call” for about 13 more **
**Staff consultant to FTC, 2003-2005**
**Disclaimer: views not necessarily those of Competition Bureau**
**Views on how law **_**should**_** work, not necessarily how it **_**does**_** work**
**Both US and CA; not as familiar with EU**
**But these ideas do show up in the strongest, clearest cases**
**Special features of US law**
**Common law vs. (relatively) detailed statute **
**Many cases; long history of jurisprudence**
**Extensive rights of private action (not necessarily helpful)**
**Integrated legal staff vs. separate investigative units**

## Important UK contributions on abuse, exclusion

**From legal formalism to economic effect**
**Classification of three categories of antitrust**
**Collusion, mergers, abuse of dominance**
**Recognizing problems with Article 82**
**Not just “market distortion”, but “consumer welfare” focus**
**Problems implementing cost-based tests**
**Difficulties of establishing dominance**
**Market share not enough**
**Questioning “collective dominance”**
**Distinguishing abuse categories (crucial here)**
**“****Predation-type” vs. “RRC abuses”**
**Impropriety of profit sacrifice for the latter**

## Still, issues on the table

**Is there more than distinguishing between “exclusionary” and pro-competitive” behavior?**
**“****Rivals” focus, distinguishing only between revenues and costs?**
**Role of prior market power, dominance?**
**Quest for a uniform standard, “consistency of approach”?**
**Do we want an equally efficient competitor test in **_**all**_** cases?**
**Role of intent, willfulness?**
**Are rebates, bundles bad because they are predatory?**
**What cost-based tests should be used for bundles? **
**Should there always “be a gap between the thresholds ... relating to abuse of dominance and to mergers”? [Vickers, 2003] **

## With that, what to take away

**Why monopolization, abuse controversial, difficult: Rival focus**
**Recognize exclusion **_**fundamentally**_** different from predation**
**Ask, “Are initial effects bad (exclusion) or good (predation)?”**
**Predation should be hard, but exclusion more like mergers**
**Exclusion, barriers to entry, RRC entail acquiring control over a complement market to raise effective price**
**Apply empirical merger techniques to complement markets**
**Reject predation-based profit sacrifice, equally efficient competitor, prior dominance screens**
**Case examples**
**Applications to bundling, e.g., *****Canada Pipe***
**New options for remedies**
**Focus on creating new monopoly, not maintaining old ones**

## Two competition areas relatively uncontroversial

**Horizontal collusion; US Sherman §1, CA S.45-49, UK CA Ch. I**
**Fact-based, like criminal investigations**
**Rule of reason vs. *****per se***** boundary**
**Entry as mitigating factor; need for policy (libertarian critique)**
**Horizontal mergers; US Clayton §7, CA S.91-103, UK EA02**
**Market delineation empirical core of cases**
**Entry as mitigating factor, even with large share**
**Critical loss/elasticities debate**
**Use of differentiated product empirical models, simulations**
**Necessity of market definition under unilateral effects**
**Efficiency defenses, consumer vs. total vs. weighted welfare**
**However, little dispute on theory, conceptual foundations**

## Troublesome #3: Monopolization in its many forms

**Sherman §2 in U.S. law, S. 75, 77-79 Canada Competition Act**
**Foreclosure**
**Abuse of dominance**
**Exclusive dealing**
**Tying/bundling**
**“****Raising rivals’ costs”**
**Predatory pricing**
**Chapter II of 1998 Competition Act, Article 82 in EU**
**Imposing “unfair” prices or “trading conditions”**
**“****Limiting production, markets or technical development”**
**“****Applying dissimilar conditions to equivalent transactions”**
**Conditioning contracts on obligations “with no connection”**

## Persistently controversial

**Market power presumably horizontal, not vertical**
**Practices reduce demand for monopolist’s product**
**Too much competition: Low prices, more products**
**Does monopolization law protect competitors, not competition?**
**Recent observation on US, EU:**
**This branch [of antitrust] has been confused since its inception, and has become a vehicle of suppressing, not promoting, competition in the marketplace—an unfortunate fact of U.S. antitrust law and even more so of European competition law.**
**Ronald Cass, former US ITC vice chair**
**Comment during FTC presentation: “Why would you want to save Section 2?”**

## Questions

**Why is monopolization different from collusion, merger?**
**Is monopolization about economic welfare or something else (competitor protection, intent)?**
**Is there any way to harmonize monopolization law with principles underlying collusion, merger law?**
**What are the practical implications of the lack of harmony?**
**Do predation “screens” make sense for exclusion case?**
**Would other screens better sort good conduct from bad?**
**What can vertical aspects usefully contribute to exclusionary conduct analysis? **
**Is there a simple way to change monopolization doctrine to reconcile it with its antitrust cousins?**
_**Can we make exclusionary conduct cases simpler, easier, clearer?**_

## Why?: The fallacious Section 2 “rivalry” syllogism

_**Premise 1**_**: Section 2 cases about hurting rivals**
** ****Dominant firm abusing the little guys still animating vision**
_**Premise 2**_**: Because competition hurts rivals, the burden in cases based on rival injury should be very high (insurmountable) **
_**Conclusion**_**: Section 2 cases should bear a very high (insurmountable) burden **
**Debate so far about Premise 2, not Premise 1**
**“****Chicago school” sceptics accepts both premises, conclusion **
**Post-Chicago/populist activist side**
**Reject conclusion by rejecting second premise**
**Protect competition by protecting competitors**
**But both sides accept Premise 1!**

## Implications of the present standpoint

**Consensus has proven difficult**
**Familiar Type I error of false positives:  Inconsequential or beneficial practices attacked **
**But don’t forget Type II error: Harmful practices may be ignored **
**Using inappropriate screens**
**Monopolization ignored because firm didn’t look big enough**
**Misidentifying the relevant upstream market**
**Encourage “anything can happen” non-robust theory**
**Game theory can make evaluating practices more difficult**
**Canceling theorists making litigation harder, especially for new, smaller agencies and courts**
**Can courts handle hard theory? (*****Microsoft***** example)**
**Benefits of possible precision vs. costs of error, process abuse**

## Why not reject Premise 1?

**Emphasis on rivalry has made monopolization cases harder to bring and justify**
**Focus **_**not**_** on rivalry in primary market but on **_**cornering previously competitive complement market**_
**Complement market monopolization (CMM) hallmark of exclusion**
**Use horizontal, not predatory screens to assess that monopolization**
**Possible approach to bundling cases **
**Rescue good vertical cases in regulated sectors**
***U.S v. AT&T***** (1982) contrasted with *****Verizon v. Trinko *****(2004)**
**Regulation as evidence of risk, not excuse to walk away**
**Bring much of monopolization law in line with less problematic collusion, merger law**

## Not all monopolization cases are the same

**Exclusion different from predation cases**
**Unnecessary, spurious screens invoked because of anti-rival focus**
**Exclusion cases may be too hard to bring**
**Exclusion cases involve monopolizing a **_**new**_** market**
**Raising entry barriers means the cost of something needed to enter goes up**
**That’s where the relevant market is!**
**Market power not the ability to exclude from X**
**That requires market power over something **_**outside**_** X needed to enter, supply, and compete in X!**
**Don’t try to find common standard with predation cases – the **_**effects**_** are not the same**
**But how to tell the easy cases from the controversial cases?**

## A solution? First, classifying business practices

|  | Distant effects |  |
| --- | --- | --- |
| Proximate effects | Bad | Good |
| Bad | PBDB (Proximate Bad, Distant Bad) | PBDG (Proximate Bad, Distant Good)  |
| Good | PGDB (Proximate Good, Distant Bad) | PGDG (Proximate Good, Distant Good) |

## Second, antitrust-related examples

| Proximate Effects | Distant effects |  |
| --- | --- | --- |
|  | Bad | Good |
| Bad | PBDB: Price fixing, market allocation, horizontal mergers | PBDG: “Rule of reason,” efficiency defenses, vertical restraints |
| Good | PGDB:Predatory pricing, bundling, capacity expansion, preemptive patents | PGDG:Market generally, buyer-to-seller, complement providers |

## Third, subdividing monopolization cases

|  | Distant effects |  |
| --- | --- | --- |
| Proximate effects | Bad | Good |
| Bad | PBDB: Exclusion, complementary market monopolization via contract or rebate, regulatory evasion | PBDG: Vertical restraints without negative strategic effects, efficiency defenses for exclusion |
| Good | PGDB, as before:Predatory pricing, bundling, capacity expansion, preemptive patents | PGDG: Distant harms unproven, failure to exclude or recoup |

## Failure to distinguish, and its costs

**US:  Treat PBDB like PGDB, focus on minimizing Type I error**
**Cases far too difficult**
**The fallacious syllogism**
**Erroneous screens**
**EU: Treat PGDB like PBDB, focus on minimizing Type II error**
**Presumption of bad behavior even with proximate goods**
**Dominance => abuse?**
**Willingness to consider “efficiency offenses”**
**Quest for the “holy grail” of a single monopolization standard**
**Treating all cases alike fails to minimize error costs**
**Take distinction between exclusion and predation seriously**
**Customize screens to the two different situations**

## Complementary market monopolization (CMM)

**To exclude, must raise **_**complement**_** prices**
**=> Acquiring market power over an complement, e.g., an input**
**“****Exclusion,” “foreclosure” as tying up the market for the complement**
**Retailing, distribution, shelf space, typical examples**
**Input example: Beer company signs exclusives with networks for TV ads**
**Barriers to entry raised **_**outside**_** the market, not **_**within**_** the market**
**Complementary market monopolization like mergers**
**What would happen if contracted complement providers merged?**
**E.g., those who had signed exclusive dealing contracts?**
**T****he key to reconciling exclusion with merger, collusion law**

## Using merger-based effects tests

**Allows application of merger frameworks, empirical techniques!!**
**E.g., US Horizontal Merger Guidelines (HMGs)**
**Relevant market is the complement, *****not***** the upstream product **
**Apply “SSNIP” standards for market delineation**
**Treat conduct “as if” merger among complements suppliers**
**Share of complement mkt. controlled, e.g., via exclusionary contracts**
**Is *****that***** market easy to enter?**
**Carlton’s idea of the “shadow price”**
**CMM comes up indirectly in cases–make it the prime focus**
**Use instead of predation based tests!!**
**Profit sacrifice, equally efficient competitor, prior dominance**
**Appropriate for high burdens, but not for PBDB exclusion**

## Finesse (in part) market delineation for monopoly

**Monopolization, abuse of dominance currently requires finding of a monopoly (dominance) that is then abused**
**No good answer on how to do that**
**Different from mergers, with “make matters worse” counterfactual**
**Everybody has a little market power in a differentiated product world**
***Cellophane***** fallacy: observed substitution doesn’t answer question**
**“****Monopoly” profits could come from inframarginal rent**
**Overall cost coverage requires lifetime data**
**So complicated that much of *****U.S. v Microsoft***** was about whether MS had a monopoly in which operating system market**
**CMM approach avoids problem**
**Use HMGs approach: Does practice make complement market worse?**
**Problem still needs to be solved, but for regulation, not antitrust**
**[Aside for later?:  A “hypothetical regulator” test?]**

## Vertical irrelevance and relevance

**Irrelevance**
**Complement, input market power necessary, sufficient for concern**
**Why should the identity of the monopolizer of that market matter?**
**Don’t dismiss because the monopolizer too small in primary market**
**Vertical relevance**
**Market delineation:  Like using buyer information in a merger**
**Derived demand:  Are affected buyers a relevant market?**
**Flesh out “unilateral” story: Can X% firm raise input price?**
**How much does price have to go up to have significant effect?**
**A small margin can create a huge competitive advantage**
**Still need model to assess effects **
**But predation-based tests still should not be used!**

## Questionable test #1: Profit sacrifice, “but for” test 

**Sometimes called “no business sense”; essentially the same idea**
**Any investment has positive opportunity cost, so need something relevant to competition concerns**
**Why give primacy to welfare of alleged perpetrator?**
**If complement market monopolized, why does price paid matter?**
**Irrelevance of ability of complement suppliers to extract profits **
**Like ascertaining crime by looking at criminal rather than victim**
**“****But for” test need doesn’t imply economic harm or benefit**
**“****Free” innovations can reduce welfare; even though would’ve been undertaken even without exit**
**Induce exit by less efficient competitor; price goes up**
**Some beneficial innovations may not be profitable unless rivals exit**

## Additional “profit sacrifice” considerations

**Wrong answer in regulatory evasion, network externality cases**
**Refusal to interconnect immediately profitable **
**Maintain network monopoly to evade regulation**
**Exclusion via bundling isn’t predation**
**Absolute exclusion shouldn’t be the test**
**“****Raising rivals’ cost” contribution: The lack of need for a profit sacrifice**
**Tantamount to absolute efficiency defense**
**No profit sacrifice implies practice has a penny of efficiency**
**Makes conduct immune if even trivially efficient**

## The “Π sacrifice” irony – indicator of efficiency!

**Recall the Chicago argument regarding vertical restraints**
**E.g., Telser, “Free trade” with RPM**
**Vertical practices involve profit sacrifice**
**Tying reduces demand for the monopolist’s product**
**Upstream monopolist wants lower retail price, given wholesale price**
**Avoid cost of dealing with regional monopolist**
**Pay retailers more to be exclusive dealers**
**Dominant firm ostensibly better off with complement competition**
**“****Chicago” inference:  Profit sacrifice => unrecognized efficiencies**
**Solving principle-agent problems with incomplete contracting**
**How do we know if ...**
**We aren’t repeating 100 year old US AT mistakes? **
**When our accounting of profits is complete?**

## Questionable test #2: Equally efficient competitor 

**Inefficient competitors are competitively relevant**
**Bertrand homogeneous products**
**Dominant firm, competitive fringe**
**Cournot oligopoly**
**All have prices below the monopoly price**
**Dubious standard even for predation**
**Justification as test for competing too hard**
**Would allow above costs tests to exclude**
**Predating against less efficient competitors could reduce welfare**
**Elhauge:  Equally efficient where?  Everywhere?  At the margin?**
**Lesson:  Type I, Type II errors different for exclusion, predation cases**

## Questionable test #3: Prior dominance

**Focus is on the wrong market**
**Dominance neither sufficient (EU) nor necessary (US)**
**Excuses actions by firms that don’t have prior monopoly, yet tie up complement**
**Inherent contradiction in litigation**
**To establish prior monopoly, show high barriers, etc.**
**But if entry that hard, does practice at issue matter?**
***U.S. v. Microsoft***** example**
**Microsoft dominance: Lock-in, scale economies, network effects**
**But then what’s the threat to application platform monopoly?**
**Posner’s “fragile monopoly” a useful concept: **
**If monopoly secure, efficiency likely motive**
**The “but for” test: would monopoly exist if practice banned?**

## Dominance a defense, not condition of guilt?

**Large size in one market suggests large involvement upstream**
**Restraints commensurate with scale**
**Improve coordination with similar size of input market**
**Disproportionality would warrant concern**
**Marginal harm from upstream monopolization not great**
**Even if “single monopoly profit” special case, more profit taken at one stage, less to be taken at others**
**Exceptions may enhance welfare (price discrimination, more efficient input mix)**
**Place burden of showing no effect from CMM on defendant **
**Eliminating double marginalization not quite on point**
**Applies only if market power inevitable at both stages**
**CMM assumes (more or less) competition in complement**

## Reality check:  Should screens apply to mergers?

**Profit sacrifice?**
**Block only mergers unprofitable but for the exercise of market power?**
**Not just total welfare, but absolute efficiency defense**
**Gut enforcement**
**Equally efficient competitor?**
**Defend any merger if one party less efficient than another**
**Allow most efficient firm to buy up all less efficient competitors**
**Even prior dominance**
**Some market share matters, of course**
**But with very large market share, harder to tell that the merger will make matters worse**
**Relevance: View CMM as “as if” merger in complement market**
**Same points for collusion:  **
**Screens irrelevant, even if effects matter (e.g., CA “undue” SLC)**

## Applications to some exclusion cases 

***Heinz***** (Canada)**
**Alleged monopolization: **_**Baby food**_** companies sign contracts for carriages, prime display at retail**
**Real monopolization: Market for **_**retail display**_
**Focus: Ease of entry into complement market, e.g., “shelf space”**
***Dentsply***
**Alleged: **_**Artificial teeth**_** via exclusive contract with dealers **
**Real monopolization: Market for **_**distributing teeth**_** to dental labs**
**Focus: Entry into distribution market, including self-provision**
***U.S. v Microsoft***
**Alleged monopolization: “**_**Intel-based PC operating systems**_**”**
**Real monop.: **_**Browser distribution**_** via PC inclusion, ISP promotion**
**Focus: Could Netscape get its browser out effectively?**
**Remedy: DOJ settled primarily on eliminating exclusive contracts**

## Some lessons from those cases

**Core issues: Share, entry into relevant complement market**
**Monopolization of that complement market (e.g. distribution)**
**If distribution not affected, competitors can’t be excluded**
**Look at how exclusive contracts tie up market, “as if” merged**
**Profit sacrifice, equally efficient competitor not relevant**
**Monopolization paradox: Having monopoly in order to monopolize**
**Microsoft OS dominance (lock-in, scale economies, network effects) **
**Denstply in teeth, Heinz in baby food**
**But then what’s the problem?**
**Dominance as defense?**
**Have dental distribution share match upstream market**
**Incentive to develop “middleware” by capturing rents**
**Avoid double marginalization (e.g., browser + OS monopolies)**

## Bundling, discounts, rebates, etc.

**Dominant topic in antitrust debate**
**Is the relevant test a predation-based standard? **
**Does discount lead to pricing below cost?**
**Does/would it exclude equally efficient competitor?**
**State of U.S. law**
***SmithKline v. Eli Lilly*****: Bundle price need not be below variable cost**
***LePages v. 3M***** won at divided Third Circuit Court of Appeal; Supreme Court denied review **
**DOJ, FTC: Review would be “premature”; issues “novel and difficult” **
**Focus of recent models**
**Nalebuff: Bundling exclusionary entry barrier**
**Greenlee, Reitman, Sibley: Bundling reduces welfare if stand-alone prices rise **

## Limitations of models

**Nalebuff**
**Bundling increases consumer and total welfare in all equilibria**
**Would allow competitors to agree not to enter each other’s markets**
**Limits of other bundling models**
**Rent extraction, but welfare often up (GRS like 2 part-tariff)**
**Like price disc., results depend on unobservable correlations**
**Whinston – tie hardens output commitment, but ever observed?**
_**Consumers**_** buy in models, but cases about **_**intermediate**_** markets**
***Concord Boat v. Brunswick *****(engine discounts to manufacturers)**
***LePages v. 3M *****(discounts for carrying 3M’s house brand tape)**
***Ortho Diagnostic Systems v. Abbott Laboratories***** (Abbott discounted  virus screening tests but legal as above Ortho’s costs)**
***SmithKline v. Eli Lilly *****(Lilly bundled antibiotics in sales to hospitals)**
**CA *****Canada Pipe *****(full line discounts to cast iron pipe distributors)**
**Use CMM exclusion approach, not predation**

## Canadian pioneering: Canada Pipe

**Allegations (from initial Bureau notice of application)**
**Canada Pipe holds monopoly in relevant market in cast iron drain pipe**
**Instituted “Stocking Distributor Program” provides rebates (up to 20%) for distributors who purchase exclusively from Canada Pipe**
**Equivalent to exclusive dealing, forecloses distribution**
**Lost at trial (from Tribunal decision)**
**SDP exclusive, but with no anticompetitive effects; not “predatory, exclusionary, or disciplinary”**
**Found some entry from imports and a new manufacturer**
**No switching costs; SDP not contractual, distributors could leave at any time **
**Key argument control over **_**distribution**_** of pipe**
**Currently under appeal – should total exclusion be necessary? **

## Bundle discounts via CMM: A first screen

**Issue fundamentally static upstream monopolization**
**Not tying for rent extraction (Nalebuff, Sibley et al.)**
**Nor commitment (Whinston)**
**Intermediate good (CM) focus**
**First screen: Whether bundling ties up complement market **
**Reach of the bundle **
**Necessary and sufficient condition**
**HMGs approach to market definition, informed by “buyer” market**
**Examples**
**Outlets needed to sell unbranded tape**
**Distributors of false teeth to denture labs**
**Distributors of cast-iron drain pipe**

## Second tentative screen

**Resemblance to exclusive dealing: Is loss of discount from carrying competitor equivalent to payment for breach of exclusive dealing contract?**
**How much does exclusive dealing raise complement price?**
**Exclusive contracts not absolute**
**Entrant has to compensate distributor for the breach payments. **
**These will be based on the incumbent’s lost profits (Price – short run marginal cost) from breach of contract, implying ...**
**Entry possible only if it can undercut the incumbent’s marginal cost **
**Is exclusive dealing breach the right quantitative standard****? **
**Courts may find that short-run marginal cost is very low**
**Less efficient competitors could knock down price**
**For intermediate goods, a small price increase can create great competitive disadvantage**

## Observations on remedies

**Exclusive dealing, rebates, bundling not good or bad *****per se***
**The harm arises from CMM, but OK short of monopolization**
**Ideal remedy not “all or nothing”, but share based, like mergers**
**Identify level of exclusive contracting that is non-threatening**
**OK to exclude, but only if one does not go beyond X% of the relevant complement market (distribution, retailers)**
**Effective remedies assume competition in complement market**
**Prior retail, distribution monopoly perhaps a DM defense**
**Can an upstream monopolist leave money on the table?**
**Share of market with money left?**
**Share-limited remedies may reveal anticompetitive effect, if dropped if they can’t cover the whole market**

## Other issues that may arise in exclusion cases

**Tying, bundling can exclude but need not be anticompetitive**
**Hurts rival, but consumers may be better off**
**Add product features, quality control, shopping convenience**
**Consider “aftermarket” cases (locked-in consumers) as contract breach, consumer protection matters**
**Predation, dynamic cases may not be reducible to the direct exclusion “complementary market” format**
***Microsoft***** as example**
**Controlling browser, media player distribution vs. preempting future competition in application platforms**
**Sector regulation need not reduce the need for antitrust**
**Regulation can make anticompetitive conduct more likely, e.g., *****U.S. v. AT&T *****(contrast 2004 USSC *****Trinko***** decision)**
**When can antitrust apply in regulated sectors? [CA “regulated conduct”, US “state action” doctrines, UK CA98 S.10(1)(a)]**

## Elhauge’s monopolization test

**Does a practice by a monopolist discriminate against rivals?**
**Allows refusals to deal if uniform, but not targeted**
**Fundamental flaw: Does it work when most needed?**
**Some inputs are bought only by rivals**
**Network elements, operations support in telecom markets**
**Bridge access in *****Terminal Railroad***
**Either no discrimination, since only rivals are buyers**
**Or discrimination an almost certain byproduct of vertical integration, making VI by a monopolist abusive *****per se***
**Also, is anything equivalent to price discrimination *****per se***** OK?  (Carlton, IIOC)**

## Exclusion: monopoly creation, not maintenance  

**“****Create” focus appropriate for exclusion cases**
**Has a monopoly/market power been created in a complement market that was not there before?**
**Look at using familiar merger, collusion horizontal terms, e.g., MEGs**
**“****Maintain” leads to the problems**
**Sets up entrants, small competitors as targets to be protected**
**Focuses on inhibiting competition, leading to high if not impossible tests**
**Looks at the wrong market, introducing error in both directions**
**Forces establishment of monopoly that’s being maintained**
**Fits predation cases, perhaps, but not exclusion**
**Dominance neither necessary nor sufficient**
**Profit sacrifice as absolute efficiency excuse**
**May lead to focus on intent rather than effect**
**Promote monopolization law by reducing its scope?**

## Summary

**Not all monopolization cases are the same: Exclusion distinct from predation**
**Fallacious syllogism: monopolization led awry by focus on rivals**
**Those with direct bads, like exclusion, can be addressed as we do mergers, collusion**
**These involve complementary market monopolization approach which can clarify analysis, remedy in exclusion cases**
**Profit sacrifice, equally efficient competitor, prior dominance, problematic screens for exclusion cases**
**Vertical matters to get story straight, as in merger cases**
**Applies to exclusion cases, perhaps bundling**
**Focus on “create” monopoly in complement market rather than “maintain” monopoly in primary market**