The April 2013 Fordham Law Review [Vol 81 Iss 5] publishes the proceedings of a recent symposium on the (never-ending) debate concerning the goals of antitrust law. It might be surprising that antitrust scholars are still discussing the goals of the discipline, but it remains true that, as the recently parted Robert H Bork emphasised 20 years ago: "Antitrust policy cannot be made rational until we are able to give a firm answer to one question: What is the point of the law--what are its goals? [...] Only when the issue of goals has been settled is it possible to frame a coherent body of substantive rules" [The Antitrust Paradox, New York: The Free Press, 1993) p. 50].
The promotion of economic welfare as the lodestar of antitrust law -- to the exclusion of social, political, and protectionist goals -- transformed and gave intellectual coherence to a body of law Robert Bork had famously described as paradoxical. Welfare-based standards have benefitted consumers and the economy and have led to greater predictability in judicial and agency decision making. In the latest of numerous challenges to the welfarist understanding of antitrust, Neil Averitt and Robert Lande propose their "consumer choice" standard as an alternative they claim takes better account of the nonprice dimensions of the competitive process. Adoption of the consumer choice framework would have seriously detrimental consequences for consumers, however. Both economic theory and empirical evidence are replete with examples of business conduct that simultaneously reduces choice and increases consumer welfare through lower prices, increased innovation, or higher quality products and services. Moreover, the welfarist approach already incorporates the tradeoffs between price and quality that consumers face. The flaw of the choice standard is that it altogether rejects the economic approach to dealing with those tradeoffs and instead imposes a structural presumption that the number of firms or brands in competition is directly correlated with consumer welfare. Shifting to defendants the burden of justifying any reduction in consumer choice would be merely a revival of the long ago repudiated inhospitality tradition in antitrust that should and likely will be rejected by the enforcement agencies and the courts.
My own personal take on the issue of the goals of competition law is that
there has been substantial debate as regards the objectives or goals of competition law. Notwithstanding that debate, a consensus has been reached as regards the restriction of the goal of competition law to economic considerations and, there is a majority view which considers that competition law should protect competition as a process, in order to maximise social welfare. Inasmuch as the pursuit of alternative or secondary goals (of a social or industrial nature) conflicts with the main economic goals—which will be the case in most circumstances—competition law should disregard such ‘secondary’ considerations and be guided exclusively by economic criteria. In the EU, market integration considerations have been historically important, but have lost momentum as the evolution of the internal market reached maturity. Therefore, in my view, as a part of EU economic law, competition law should be guided by economic efficiency considerations and have as its goal the protection of competition as a process, in order to maximise social welfare—even if the specific contours of this criterion (ie, total or consumer welfare) remain relatively undefined. In my opinion, and in the light of the position of most economists, the proper goal should be specified as the maximisation of total social welfare [Sanchez Graells, Public Procurement and the EU Competition Rules (Oxford, Hart Publishing, 2011) 97].
I am convinced that the debate is unlikely to end soon. As Martin cleverly put it, the evolution of this debate is ‘phoenix-like’, recurring, and one where ‘in each cycle participants exhibit no memory of the debate’s previous incarnations’ [Martin, Stephen Martin, 'The Goals of Antitrust and Competition Policy', in 1 Issues in Competition Law and Policy (Chicago, ABA, 2008) 79-84]. Therefore, we will probably remain engaged in this intellectual and academic exercise for a while.
However, maybe we have not realized that the debate is about a different issue altogether. As Eleanor Fox claims in her contribution to the Fordham Law Review special issue,
The core debate is how to design and apply antitrust principles so that robust markets are likely to result or be preserved, not what are the goals of antitrust [...] The exercise of debating goals of U.S. antitrust, while provocative and interesting, obscures the two data points that actually drive the debate on most applications of antitrust law—perspective and assumptions. It may be more productive to state the goals or essence of American antitrust at a level of generality, as did the Antitrust Modernization Commission in its 2007 Report—antitrust is for competition and consumers—and to proceed to examine particular categories of conduct and to debate what the rules and standards should be.
We might as well follow her lead and ditch the goals debate altogether. Or maybe we won't...