For several decades, U.S. federal antitrust enforcers, on a bipartisan basis, have publicly supported the proposition that antitrust law seeks to advance consumer welfare by promoting economic efficiency and vigorous competition on the merits. This reflects an economic interpretation of the antitrust laws adopted by the Supreme Court beginning in the late 1970s, inspired by the scholarship of Robert Bork and other law and economics experts. As leading antitrust scholars Judge (and Professor) Douglas Ginsburg and Professor Joshua Wright have explained (footnotes omitted), the “economic approach” to antitrust has benefited the American economy and consumers:
The promotion of economic welfare as the lodestar of antitrust laws—to the exclusion of social, political, and protectionist goals—transformed the state of the law and restored intellectual coherence to a body of law Robert Bork had famously described as paradoxical. Indeed, there is now widespread agreement that this evolution toward welfare and away from noneconomic considerations has benefitted consumers and the economy more broadly. Welfare-based standards have led to greater predictability in judicial and agency decision making. They also rule out theories of liability (e.g., a transaction will tend to reduce the number of small businesses in a market) and defenses (e.g., the restraint upon trade is necessary to save consumers from the consequences of competition) that would significantly harm consumers.
It is therefore most regrettable that the Attorney General of the United States, who oversees U.S. Executive Branch antitrust enforcement (which is carried out by the U.S. Justice Department’s Antitrust Division), recently delivered a speech on federal antitrust enforcement that is, at the very least, in severe tension with the (up to now) bipartisan federal antitrust enforcement consensus regarding the efficiency-centered goal of antitrust. In an April 6 keynote luncheon address to the Spring Meeting of the American Bar Association’s (ABA) Antitrust Section, Attorney General Loretta E. Lynch focused instead on the themes of “fairness” and “economic justice” in discussing American antitrust enforcement:
[The ABA Antitrust Section] ha[s] always stood at the forefront of the Bar’s [laudable] efforts to guarantee fair competition; to encourage transparent business practices; and, above all, to secure economic justice. . . . [O]ur choices have always been steeped in fundamental fairness. The Sherman [Antitrust] Act was also a landmark in the history of the Department of Justice, adding the maintenance of a level economic playing field to our fundamental mission of upholding the law and seeking justice. And the principle that it embodied – that the people of this country deserve the freedom to navigate their own path and chart their own future – still stands at the core of our work. Today, the Department of Justice is as committed to fair, open and competitive markets as it has ever been. . . . All of us in this room have a responsibility to stand up for people where they cannot stand up for themselves. We have a duty to defend the institutions that make this country strong . . . [including] markets that allow for competition that is fair, . . . [and] a nation where every person has a meaningful chance to succeed and to thrive. . . . [A]ll of you are making a significant and lasting contribution to a stronger and more just society.
“Fairness” and “economic justice” may be laudable (albeit ill-defined) social goals in the abstract, but antitrust is ill-suited to advance them. Indeed, history demonstrates that invocation of those goals was associated with welfare-inimical American antitrust enforcement policies that ill-served the American public. Prior to the 1970s, “fairness,” “justice,” and related concepts (such as “a level playing field”) were often cited by the courts and public enforcers to justify antitrust interventions aimed at protecting entrenched small businesses from more efficient competitors, and at precluding the aggressive exploitation of efficiencies by large innovative companies. This often resulted in higher prices to consumers, sluggish economic productivity, and slower innovation and economic growth, to the detriment of the overall American economy.
Admittedly, modern U.S. federal antitrust case law holdings and enforcement tools emphasize economic efficiency, rather than “fairness” and “justice,” so one might be tempted to dismiss the Attorney General’s remarks as unfortunate but of no real consequence. (In fairness, the Attorney General did pay lip service to the importance of competition and to recent enforcement victories by the Antitrust Division, although inexplicably she had nothing to say about cartel prosecutions – the one area of antitrust that is most clearly welfare-enhancing.) Unfortunately, however, many foreign antitrust enforcement officials and practitioners attended her speech, which by now has been disseminated throughout the global antitrust enforcement community. Significantly, a number of major foreign jurisdictions have recently employed antitrust concepts of “unfair competition” and “superior bargaining position” to attack efficient, economic welfare-enhancing business arrangements, such as patent licensing restrictions, by major companies (including U.S. multinationals). When American competition experts urge foreign antitrust officials to eschew such tactics in favor of efficiency-based antitrust rules, it would not be surprising to see those officials invoke Attorney General Lynch’s unfortunate paean to “fairness” in defense of their approach. (For this reason, U.S. Federal Trade Commissioner Maureen Ohlhausen has stressed that American officials should be careful in their public antitrust pronouncements, a warning that obviously went unheeded by the Attorney General’s April 6 speechwriter.)
One may only hope that going forward, Attorney General Lynch, and the U.S. antitrust enforcers who report to her, will keep these concerns in mind and publicly reaffirm their dedication to the accepted mainstream consensus view that American antitrust policy is based on efficiency and consumer welfare considerations, not on bygone populist nostrums of “fairness.” In so doing, U.S. officials should emphasize that efficiency-based antitrust strengthens innovation, advances consumer welfare, and fosters strong economies, considerations that ideally should prove attractive to public officials from all jurisdictions.
This piece first appeared in Truth on the Market.