Revitalizing Antitrust in Its Second Century: Essays on Legal, Economic, and Political Policy

By Harry First; Eleanor M. Fox et al. | Go to book overview

been far more permissive than the Justice Department's own guidelines -- where failures to act and loose rhetoric contributed to a foolish and wasteful surge of giant consolidations. But in adopting a more vigorous program, it is essential not to simply reinstitute the policies (along with the errors) of prior years. As Judge Easterbrook has rightly pointed out, hawks as well as doves must learn the lessons of economics if they are to establish sensible policies. 26 Erroneous past policies, including an unwillingness to recognize efficiency as a factor tending to sustain the legality of an arrangement, should not be repeated. Finally, some new approaches to antitrust enforcement probably should be adopted. For example, an expansion and clearer definition of zones of per se legality would enable business persons to plan business strategies more reliably and thus contribute to consumer as well as business welfare.

Several recent articles offer encouraging signs that economics can justify a balanced and sensible antitrust policy. Professor Williamson's analysis shows how misleading it can be to examine business practices in static economic terms. 27 Many practices that conservatives regard as innocuous, including price predation, are seen accurately to have anticompetitive consequences when reviewed in a strategic context. Similarly, Professors Krattenmaker and Salop show that anticompetitive exclusion often can occur through the device of raising rivals' costs, and that outlawing those devices would not necessarily be expensive in terms of lost efficiency. 28 These analyses, and other recent scholarship, will form part of a new basis for enhanced and sensible antitrust enforcement.

The U.S. economy is so vigorous and dynamic that it is doubtful that the Reagan Administration's eight years of minimal enforcement will do much permanent harm. However, as Congress has often recognized, anticompetitive effects can be cumulative. A continuation of the level of nonenforcement reached in the 1980s would be likely to change profoundly the nature of competition in this country.


NOTES
1.
Congress prohibited the use of any funds to alter the per se prohibition on resale price maintenance and called upon the Attorney General to withdraw the Vertical Restraints Guidelines (which propose avoidance of the per se rule) in the Department of Justice Appropriations Act for fiscal year 1986. Department of Justice Appropriations Act, 1986, Pub. L. No. 99-180, § 605, 99 Stat. 1136, 1169-70 ( 1985); see House Judiciary Comm., Report on Vertical Restraints Guidelines Resolution, H.R. Rep. No. 399, 99th Cong., 1st Sess. ( 1985) (noting Judiciary Committee efforts).
2.
U.S. Dep't of Justice Vertical Restraints Guidelines, 50 Fed. Reg. 6263 ( 1985).
3.
U.S. Dep't of Justice Merger Guidelines, 49 Fed. Reg. 26,823, 26,830-35 ( 1984).
4.
Although it did bring the AT&T litigation to a successful conclusion -- at least from the point of view of antitrust enforcement.

-535-

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