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'The judge says 90% of search queries are run on Google, and its only major general search competitor is Microsoft (now valued at $3 trillion). However, the judge concedes that Microsoft was slow in adapting its search engine for mobile devices, causing it to lose ground.

“Google has not achieved market dominance by happenstance. It has hired thousands of highly skilled engineers, innovated consistently, and made shrewd business decisions,” Judge Mehta writes. “The result is the industry’s highest quality search engine, which has earned Google the trust of hundreds of millions of daily users.”

So what’s the antitrust problem? The judge says Google’s advertising revenue-sharing payments to Apple, Mozilla and others for default placement have made it harder for potential startups and Microsoft to compete.

Yet users can switch to other search engines if they want. And Judge Mehta notes that Apple and Mozilla have “promotional deals” with other search engines. Microsoft pitched Apple “on making Bing the default multiple times.” Startup Duck Duck Go also “made a bid to be the default for private browsing mode searches on Safari,” but neither it nor Microsoft “succeeded in part due to their inferior quality.”

This makes for a very strange monopolist—one that does better by consumers because its search engine is superior. “Google’s partners value its quality, and they continue to select Google as the default because its search engine provides the best bet for monetizing queries,” the judge explains, adding that Google “has continued to innovate in search.”'

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Unilateral conduct is outside the purview of section 2 unless the actor possesses monopoly power or is likely to achieve it. The mere possession or exercise of monopoly power is not an offense; the law addresses only the anticompetitive acquisition or maintenance of such power (and certain related attempts). Mere harm to competitors--without harm to the competitive process--does not violate section 2. Competitive and exclusionary conduct can look alike--indeed, the same conduct can have both beneficial and exclusionary effects--making it hard to distinguish conduct that should be deemed unlawful from conduct that should not. Because competitive and exclusionary conduct often look alike, courts and enforcers need to be concerned with both underdeterrence and overdeterrence.