A rough precedent for the approach here suggested is the National Cooperative Research Act of 1984, 117 which provides for single damages plus attorneys' fees (with certain exceptions) in cases arising out of joint research and development programs that have been properly reported in advance to enforcement agencies. 118
Pursuit of the economic goals of antitrust requires a blending of efficiency and consumer welfare. While antitrust law seeks to realize all types of efficiencies, production and innovation efficiencies, which lead to technological progress, contribute the most to social wealth enhancement, and, therefore, should be the key objectives of antitrust policy. It follows that the immediate interest of consumers should sometimes be deferred to the achievement of production or innovation advances. But, ultimately, consumers must receive an appropriate share of the wealth created by such efficiencies, which is the share that would be allocated to them through a competitive market. Thus, provision must be made for the eventual restoration of competitive market conditions. These economic objectives can be implemented by placing greater emphasis on stability and predictability of antitrust rules, preventing exclusionary conduct that threatens production efficiency, and recognizing a limited efficiencies defense when otherwise restrictive conduct would enhance production or innovation efficiency.
Helpful comments were received from Airlie House conference commentators Walter Adams, Phillip Areeda, and Jerome Hochberg, and also from Scott Bales, Robert Bone, Ronald Cass, Jane Cohen, Clayton Gillette, Michael Harper, Robert Lande, Robert Marks, Stephen Salop, Louis Schwartz, Robert Seidman, Ingo Vogelsang, and the participants in the Boston University Legal Theory Workshop. Thanks are also due to Beth F. Kirk for valuable research assistance, and to the Centre for SocioLegal Studies of Oxford University, where I did some of the thinking for this chapter.