The Slogans and Goals of Antitrust Law

By Herbert Hovenkamp (University of Pennsylvania)

This is a comparative and historical examination of the slogans and goals most advocated for antitrust law today – namely, that antitrust should be concerned with “bigness,” that it should intervene when actions undermine the “competitive process,” or that it should be concerned about promoting some conception of economic welfare.

“Bigness” as an antitrust concern targets firms based on absolute size rather than share of a market, as antitrust traditionally has done. The bigness approach entails that antitrust cannot be concerned about low prices, or the welfare of consumers and labor. Nondominant firms could not sustain very high prices or cause significant reductions in market output. Concerns about bigness as such invariably translate into protection of small business, or of firms dedicated to older distribution methods of technologies. These firms can be injured by even nondominant rivals who have lower costs or more innovative supply.

The most important advantage of an antitrust policy of protecting the “competitive process” is the phrase’s rhetorical appeal. It invokes a classical liberal bias that sees process rather than substance as the key to good public decision making. However, classical liberalism reaches that point by beginning with a few bedrock substantive starting points, including protection of contract, property rights, and due process. No equivalent bedrock exists for the “competitive process.” As a result, people from the right and the left embrace it, and it cannot produce useful tools for decision making about competition issues. It operates as a slogan.

Continue Reading…