WTAS: Subcommittee Hearing Emphasizes Soundness Of Antitrust Standards
At the Senate Judiciary’s Subcommittee on Antitrust, Competition Policy, and Consumer Rights hearing on concentration and competition in the U.S. economy yesterday, one thing was clear: Antitrust law is perfectly capable at completing the job it’s meant to do.
Highlights from the subcommittee hearing below.
Senator Mike Lee (R-Utah), Chairman of the Subcommittee on Antitrust, Competition Policy, and Consumer Rights
—Antitrust is not a magic Swiss army knife: “Antitrust law is not properly viewed as a sort of Swiss army knife of a policy tool — one that’s capable of addressing and solving a whole host of social ills, of public policy woes for which other laws have been inadequate. To my mind, this kind of an approach, the magic Swiss army knife approach to antitrust law, fundamentally misunderstands the purpose of antitrust. Properly exercised, antitrust enforcement should police inappropriate exercises or accumulation of market power. In doing so, antitrust should serve the interest of consumers, of competition itself, rather than the interests of individual competitors.”
—Tech critics’ failure to provide specifics on how antitrust should change risks capture of antitrust law by special interests: “As professor Herbert Hovenkamp has cautioned, if we view the monopoly problem as political, but fail to provide a roadmap for analyzing specific practices, it’s just a recipe — not just for ineffectiveness — but for capture by special interests. We should therefore keep our focus on the consumer and demand that alleged anticompetitive behavior be explained in terms of how that anticompetitive behavior impacts consumers.”
—It’s not enough to say antitrust needs to be more aggressive: “It’s not enough, simply, to say that antitrust enforcement simply needs, in the abstract, to be more aggressive. If antitrust has in fact been too lax, then we need to know the specifics of what that means. What specific practices are occurring? How are those practices harming consumers? What specific remedies under antitrust law might be taken to remedy such abuses?”
Joshua Wright, Professor of Law and Executive Director of the Global Antitrust Institute at George Mason University
—Changes in antitrust policy are not responsible for trends in market concentration and market competitiveness: “I don’t believe the evidence demonstrates a systematic increase in market concentration nor a decrease in the competitiveness of U.S. markets that can be attributed to changes in antitrust policy.”
—Modern antitrust law and the consumer welfare standard are up to the job: “Modern antitrust law, guided by the consumer welfare standard, is, to put it plainly, up to the job. It’s important to understand what the consumer welfare standard is and what it is not. The consumer welfare standard is not merely the estimation and summing up of all the benefits and losses to individual consumers throughout the economy. Rather, the standard is best understood as the concept that antitrust rules and institutions should be designed to maximize the long-run economic productivity of our competitive economy. The consumer welfare framework has the flexibility to expand and contract enforcement in response to changes in sound empirical evidence over time. Indeed, it’s done so over time, with changing technology and changing understanding of business behavior.”
—Analysis should focus on the right unit of analysis for antitrust—markets: “The unit of analysis in antitrust is markets. I think that ‘like’ in potential competition is equally important. Where we are good at antitrust is when we are focused on market forces, not looking at evolving technological paths or broad industry aggregate figures.”
A. Douglas Melamed, Professor of the Practice of Law at Stanford Law School
—Increased market power doesn’t mean antitrust needs to change: “Even if there has been increased market power in a number of markets, that does not necessarily mean that antitrust law needs fixing. Antitrust law is not ultimately about dispersing power; it is about economic welfare. An increase in market power does not and should not violate the antitrust laws if it is the result of efficient conduct, like improving product quality and innovating or reducing cost. If the antitrust laws prohibited gaining market power by efficient conduct, they would reduce incentives for firms to engage in the kind of aggressive competition that the antitrust laws are intended to promote. If antitrust law were used to hamstring efficient firms, or to break up firms that achieve their position through efficient conduct, it would impose real costs on the economy by disrupting the most efficient means of doing business.”
—Don’t punish firms for efficient competition: “We don’t want to punish firms that obtain their position and maintain their position by efficient competition because that would create a disincentive for them to be the kind of aggressive competitors that antitrust law wants them to be.”