Antitrust is now widely said to be dedicated to maximizing “consumer welfare” through an intense focus on promoting “allocative efficiency”. This article, which can be found here, seeks to provide evidence of how such a limited goal has no support in legislative history by tracing U.S. Congress’s consistent balancing of social, political, moral, and economic values and objectives over the course of more than a century of antitrust legislation.
The paper is structured as follows:
Part II reviews antitrust statutes throughout the years, and how they blend fundamental political, social, moral, and economic values.
This section begins by reviewing scholarship on the legislative history of the US’ antitrust statutes. This review shows that there are differences in how conservative and progressive scholars have interpreted the relevant statutes. Conservatives traditionally identified mainly economic goals in the law, while Progressives extracted a number of other political and social goals from the relevant legislative acts. Differences regarding the goals found to be present in early antitrust statutes reflects the fact that Congress had to balance different social, political, moral and economic values, objectives and visions in order to pass antitrust legislation.
The author argues that proponents of early antitrust statutes shared values such as a belief in fair competition (equality of opportunity), economic diversity, and economic fairness through government oversight. Similar values clashes were present in more recent congressional antitrust debates, which required US Congress to carefully and delicately balance diverse social, political, moral and economic goals and objectives. Regarding the Hart-Scott-Rodino Act of 1976, which set up the current prior notification merger control regime in the US, the author reviews the legislative history and the political-economic context, and shows that the adoption of the Act sought to protect goals as varied as protecting economic diversity, fairness, corporate responsibility.
Part III compares Congress’s balancing of social, political, moral and economic values, goals, and objectives between 1890 and 2004. It purports to show how the antitrust laws were never intended to identify or pursue economic values to the exclusion of all other values. Instead, throughout the years Congress has balanced carefully and judiciously a diverse array of potentially conflicting fundamental values such as equality of opportunity, diversity, and economic ethics and morality.
In the light of this, it is argued that enforcement should more faithfully honour and implement congressional goals by: protecting competitors against unfair predation; preventing undue market concentration through more aggressive merger control; continuing to prevent anticompetitive collusion while encouraging R&D joint ventures; and preserving the dynamic efficiencies and technological innovations resulting from a diverse array of aggressive competitors at all competitive levels.
Part IV concludes that antitrust has moved too far from democratic institutions towards technocratic control, in service to a laissez-faire approach to antitrust enforcement. This approach reflects an ideology that Congress never explicitly adopted. As such, courts and antitrust enforcement agencies should stop interpreting antitrust laws as though they were somehow written or amended by Congress to reflect this worldview, and such values need to stop being treated as neutral and merely technical.
On the other hand, values such as competitive fairness, a level economic playing field, economic justice, healthy diversity of competitors, and reduced economic concentration are actually crucial economic values that provide the foundational underpinnings for a stable and sustainable capitalist economic system. These values are reflected in antitrust laws, and should be recognised by courts and agencies.
This article provides a good overview of the legislative history and context in which antitrust statutes were adopted in the U.S. As the author notes, there already is a plethora of outstanding and insightful scholarship analysing Congress’s objectives in passing the Sherman, Clayton, and FTC Acts. As a result, the main contribution of this article concerns its analysis of the US Congress’s more recent antitrust legislation, including the Hart-Scott-Rodino Act of 1976 and the National Cooperative Research Act of 1984.
This article – and the one immediately above – also take an openly normative / political approach to antitrust, as is common with New Brandeis proponents. They do so by attacking the interpretation of the goals of antitrust statutes, as is common in the US. I do not mean to engage with arguments of US statutory interpretation, but papers on this topic always seem to avoid discussing why the 1970’s revolution took hold as strongly and quickly as it did.
In my interpretation, and in addition to the conservative / economically liberal bent of the times, this had something to do with widespread concerns about the lack of precision of antitrust rules and the uncertainty regarding which activities were prohibited under antitrust law. The ‘consumer welfare’ standard seemed to provide exactly such a standard, while also creating a normative justification for antitrust law as a whole. As such, I am always slightly disappointed when criticisms of current enforcement – which, in any event, seems to follow the Harvard School a lot more than Chicago – do not advance alternative standards of analysis that would allow one to pursue effectively all the social goals that the authors identify.