For the past 40 years, U.S. antitrust law has been understood as a consumer welfare prescription against conduct leading to higher prices, reduced output, and lower quality or innovation.  A growing number of commentators argue, however, that this understanding of antitrust law should expand to include social or political goals to counter the ills of what some have termed a “New Gilded Age.”[1]  Just as the Sherman Act was needed to address the common law’s failure to curb the concentration of economic power resulting from business trusts and predatory practices, a new enforcement regime may be needed to replace a consumer welfare theory of the antitrust laws that has not protected the public from concentrations of economic power fueled by mergers and, in some cases, exclusionary conduct by dominant firms.

Antitrust law must preserve the basic principles of capitalism, such as rent-seeking and the right to contract, but also provide a legal standard for addressing wrongdoing.  Achieving this balance has been a challenge since the enactment of the Sherman Act.  Initially, the challenge was to determine whether all agreements in restraint of trade (and monopolies) were per se illegal under the Sherman Act.  As the Supreme Court made clear in the landmark case of Standard Oil, such a view presented a choice of either being “destructive” of basic commercial activities or making enforcement of the Sherman Act “impossible because of its uncertainty.” [2]  By requiring judges to use reasonableness to assess whether restraints of trade violated the Sherman Act, the court sought to develop a framework for separating what is now termed “competition on the merits”[3] from illegal business conduct.

After Standard Oil, American courts often understood this framework through not just an economic lens but a social one—most notably, a concern with the loss of small competitors.  In Alcoa, for example, Judge Learned Hand wrote that “great industrial consolidations are inherently undesirable, regardless of their economic results” and that a purpose of the antitrust laws was to “perpetuate and preserve, for its own sake and in spite of possible cost, an organization of industry in small units which can effectively compete with each other.”[4]  In the area of merger enforcement, the courts’ emphasis on protecting the small competitor was perhaps most noticeable.  In Brown Shoe, the Supreme Court found that it “must give effect” to Congress’ desire for antitrust merger enforcement to “promote competition through the protection of viable, small, locally owned businesses,” even while appreciating “that occasional higher costs and prices might result from the maintenance of fragmented industries and markets.”[5]

As Professor Herbert Hovenkamp has said, decisions like Brown Shoe, which aim to protect small competitors, fail to admit of any limiting principle[6]—and thus do not establish the sort of objective standard Standard Oil sought to make the hallmark of antitrust enforcement.  If, for example, the merger in Von’s Grocery[7] could represent an unlawful trend toward concentration, then, in principle, any merger between competitors might be illegal.  Indeed, Justice Stewart argued forcefully in his dissent that the court’s reasoning implied loss of competition from loss of a competitor.[8]  The same is true in the area of unlawful conduct by a monopolist.  Even without pricing below its cost, a monopolist who benefits from economies of scale may foreclose a smaller, less efficient rival from the scale needed to compete.  By looking only at the effect of the monopolist’s conduct in terms of market structure—be it the number of competitors or market shares—antitrust law risks defining the rules of the game in a way that punishes the successful competitor simply because he wins.

An economic welfare standard and the corresponding economic approach to antitrust analysis[9] are important, because they allow judges and enforcers to distinguish between conduct that merely harms competitors—a natural byproduct of market forces—from conduct that harms competition and the economic welfare of consumers.  In so doing, the economic approach to antitrust gave firms a more objective standard than that of Brown Shoe and addressed Standard Oil’s concern about uncertainty.  What’s more, economic principles allowed judges and antitrust enforcers to apply the law for the benefit of consumers without undermining free enterprise.

Given this background, I consider in a new article whether the Trump Administration is shifting toward antitrust standards that are broader than consumer welfare.  Since the article’s publication, President Trump’s nominee to chair the Federal Trade Commission, Joseph Simons, has been quoted as saying that the antitrust agencies “have been too permissive in dealing with mergers and acquisitions” and reduced consumer welfare by limiting “consumer choice” and harming workers.[10]  Simons mention of “consumer choice” echoes the Department of Justice’s complaint that the merger between AT&T and Time Warner would slow “greater choice for consumers.”[11]  While the details remain to be seen, “consumer choice” has been recognized as distinct from “consumer welfare,”[12] and may signal a return to the types of social concerns expressed in Brown Shoe.[13]

The language of “economic liberty,” however, may be a better indicator of a new direction for antitrust enforcement.  In a series of speeches, Assistant Attorney General Makan Delrahim stated that a focus on economic liberty and consumer welfare serves “cherished values,”[14] and that “antitrust law employs law enforcement principles to maximize economic liberty subject to minimal government imposition.”[15]  In the abstract, “economic liberty” has several meanings, and could reflect the substantive due process theory that the Sherman Act rejected, the social goal of protecting competitors that the Supreme Court once readily affirmed, or the laissez faire inclinations of the Chicago School.  The best answer may be “none of the above,” and Delrahim’s use of “economic liberty” may reflect a distinct paradigm for antitrust enforcement.  If history is any guide, modifications to the consumer welfare standard may not only be something to watch for, but a basis for reflecting upon how agency officials and the courts would draw the line between anticompetitive and procompetitive conduct.

ENDNOTES

[1] See, e.g., Robert Reich, Antitrust in the New Gilded Age, Huff. Post (Apr. 17, 2014).

[2] Standard Oil et al. v. United States, 221 U.S. 1, 63 (1911).

[3] Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 223 (1993).

[4] United States v. Aluminum Co. of America, 148 F.2d 416, 428-29 (2d. Cir. 1945).

[5] Brown Shoe Co. v. United States, 370 U.S. 294, 344 (1962).

[6] Herbert J. Hovenkamp, Antitrust Policy and Inequality of Wealth, CPI Antitrust Chronicle, at 5 (Oct. 2017).

[7] United States v. Von’s Grocery Co., 384 U.S. 270, 278 (1966) (condemning merger that resulted in a combined market share of less than 8%).

[8] Id. at 287 (Stewart, J., dissenting).

[9] It is here where the various Harvard, Chicago, and Post-Chicago schools share a common technocratic core, as these two pillars of modern antitrust can be affirmed without making any assumptions about the likelihood for markets to self-correct.

[10] Pallavi Guniganti, Simons includes harm to workers and choice in competition mission, Global Competition Review (Feb. 5, 2018). https://globalcompetitionreview.com/article/usa/1153360/simons-includes-harm-to-workers-and-choice-in-competition-mission.

[11] See Complaint, United States v. AT&T et al., No. 1:17-cv-02511, at 2 (D.D.C. 2017), available at https://www.justice.gov/opa/press-release/file/1012896/download.

[12] See, e.g., Joshua D. Wright & Douglas H. Ginsburg, The Goals of Antitrust: Welfare Trumps Choice, 81 Fordham L. Rev. 2405, 2411 (2013) (noting that “both economic theory and empirical evidence are replete with examples of business conduct that simultaneously reduces choice and increases welfare in the form of lower prices, increased innovation, or higher quality products and services”). But see Neil W. Averitt & Robert H. Lande, Using the “Consumer Choice” Approach to Antitrust Law, 74 Antitrust L.J. 175, 176 (2007) (suggesting that in some markets there is “no good way to assess consumer welfare [] without considering the nonprice choice issues”).

[13] In addition the social concern about competitors, in a footnote Brown Shoe mentions competitive harm in terms of “consumer choice.” See Brown Shoe, 370 U.S. at 345, n.72 (“[E]xpansion through merger is more likely to reduce available consumer choice while providing no increase in industry capacity, jobs, or output.”).

[14] Makan Delrahim, Assistant Attorney General, U.S. Dep’t of Justice Antitrust Division, Address at the American Bar Association’s Antitrust Fall Forum 4 (Nov. 16, 2017).

[15] Makan Delrahim, Assistant Attorney General, U.S. Dep’t of Justice Antitrust Division, Remarks at New York University Law School 6 (Oct. 27, 2017).

This post comes to us from Joseph Coniglio at the law firm of Wilson, Sonsini, Goodrich & Rosati and reflects solely his own views. It is based on his recent article, “Antitrust and Economic Liberty: A Policy Shift from the Trump Administration?” which is available here and is a synthesis of and commentary on an article first published in Competition Policy International’s North America Column.