Dynamic Competition as a Double-Edged Sword: An Antitrust Primer
GAICIL Insights
Few words are used more loosely in antitrust than “dynamic.” This primer pins the term down. Dynamic competition, the article argues, is imperfect competition and nothing else: it adds time, motion and evolution to the analysis of rivalry, and it asks how much evidence a court should demand before acting on claims about the future.
The central claim is that the concept cuts both ways. Defendants invoke it to justify present imperfections in the name of future innovation, through dynamic efficiencies and potential competition. Enforcers increasingly invoke it as an offense, to protect nascent rivals and the innovation race itself. For frontier AI, where scale, acquisitions and future rivals sit at the heart of every case, that double edge is the debate. The article’s lesson is that both sides win or lose on administrability and on the standard of proof.
Introduction
The concept of dynamic competition in antitrust embodies both the essence of competition and the reassessment of its existence. In fact, competition inherently is a dynamic process in which market actors continuously strive to outperform each other in a world of scarce resources. Dynamic competition embodies the fundamental and authentic essence of competition. In that respect, dynamic competition is an ongoing and ever-changing process that should have always persisted.
But what precisely is meant by the term “dynamic competition”? It is imperfect competition—and nothing else. Dynamic competition challenges the negative connotation of imperfect competition and emphasizes the crucial need that any thriving competitive process necessarily needs to move away from idealized models of “perfect competition” that are neither realistic nor praiseworthy.
In both aspects, dynamic competition vouches for a departure from perfect competition models and either applauds market imperfections—dynamic competition as an antitrust defense—or detects unperceived market imperfections—dynamic competition as an antitrust offense. Because dynamic competition is a conceptual vehicle simultaneously for antitrust defenses as well as antitrust offenses, dynamic competition is antitrust’s double-edged sword: Its sharpened edges cut both ways for antitrust litigants.1
Conclusion
The foundational features of dynamic competition—time, motion, and disruption—make this notion both more accurate to depict market realities as well as unavoidably more difficult to administer as antitrust’s conceptual framework due to the problem of measurability of the inherently qualitative metrics of dynamic competition. This new, yet complicated, framework provides grounds not only for the traditional Schumpeterian defense in antitrust, but also for novel theories of harm that are forward looking. Dynamic competition is thus both an antitrust defense and an antitrust offense, provided that the evidentiary thresholds are met.
Dynamic competition is a double-edged sword that has traditionally been used as an antitrust defense but is increasingly used as an antitrust offense. Successes and failures of both sides of the sword depend on the administrability of the notion, something largely tied up with judges’ tolerance for narratives (and speculative assertions) as well as the standard of proof that is applicable in any given case.
Takeaway: Dynamic competition is a double-edged sword that has traditionally been used as an antitrust defense but is increasingly used as an antitrust offense.
Notes
- Aurelien Portuese, Dynamic Competition as a Double-Edged Sword: An Antitrust Primer, 86 Antitrust L.J. 697 (2025), https://www.americanbar.org/content/dam/aba/publications/antitrust/journal/86/issue-3/dynamic-competition-double-edged-sword.pdf. Introduction and conclusion quoted verbatim from the article (footnote markers omitted). ↩
Cite as: Aurelien Portuese, Dynamic Competition as a Double-Edged Sword: An Antitrust Primer, 86 Antitrust L.J. 697 (2025), https://www.americanbar.org/content/dam/aba/publications/antitrust/journal/86/issue-3/dynamic-competition-double-edged-sword.pdf
Header image: FTC Building statue Washington DC 2025-02-07 13-32-09.jpg by G. Edward Johnson, CC BY 4.0, via Wikimedia Commons.
