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In the fifth entry of The Prompt series, we decided to (hypothetically) elect our antitrust experts to public office and grant them the power to convene a hearing:
"Suddenly finding yourself Chairman of the House or Senate Judiciary Committee, you instruct staff to pull together an antitrust hearing. What would that hearing focus on?"
A few contributors said that they would focus on the consumer welfare standard...
"That hearing would focus on the reasons for reorienting federal antitrust enforcement toward a consumer welfare standard. Such a revived standard should focus on weighing potential efficiencies and legitimate business justifications in determining whether particular conduct is exclusionary."
"I would call a hearing to consider “whither consumer welfare?” Specifically, I’d want the Trump Administration to indicate whether they are committed to a consumer-welfare focused antitrust enforcement policy; if the focus is broader (e.g., some version of neo-Brandeisianism), what is it and how would it lead to different results."
"The hearing should focus on getting sharper clarity on (a) details of where the current administration’s antitrust team agrees and disagrees with the Biden Administration’s antitrust team and (b) in particular, whether the current administration is restoring the consumer welfare standard or would have antitrust embrace a wider, sometimes conflicting set of interests."
The Prompt
Answering antitrust challenges one question at a time
The Chamber has assembled a range of preeminent experts in the field of antitrust from across a wide political spectrum to offer timely views on key questions of antitrust law and policy. This group brings together senior enforcers spanning seven administrations, from both the Antitrust Division at the Department of Justice and the Federal Trade Commission.
Others said they would use the opportunity to explore broader questions about the role, effects, and proper use of antitrust law and policy...
"The possible misuse of antitrust for political and corrupt purposes."
"The role of antitrust enforcement in a competitive and free market economy and the appropriate standard for determining when enforcement is appropriate."
"The ideal judiciary committee hearing would focus on two major topics, both of which relate directly to the use of scarce antitrust enforcement resources to best serve the interests of U.S. consumers and workers. One priority is preventative, or combating the use of prosecutorial discretion that is designed to weaponize antitrust enforcement to seek retribution or punish against political enemies. A second priority is proactive, or deploying antitrust resources in cases where it will bring the most relief to consumers and workers, who struggle with a high cost of living in the U.S."
"For most of the last half-century, the U.S. has enjoyed a substantial degree of consensus over the proper goals, analytical tools and enforcement methods of antitrust. This consensus approach has focused on using the principles of economics to identify conduct that harms the competitive process and thereby harms consumers. This approach has its vocal critics -- but what does the evidence show? Would the U.S. economy and consumers be better off if antitrust policy veered in a less transparent and economics-based direction, toward a more political or populist approach?"
Conversely, some contributors would delve into specific, discrete antitrust policy questions...
"My hearing would be focused on (1) remedies in mergers and specifically whether there are more practical principles that should guide settlement discussions and (2) whether there are procedural distinctions in the settlement process between the FTC and DOJ [that] lead to inconsistent outcomes that are exacerbating due process issues. If one wants to settle a DOJ merger challenge, they can go to the AAG, the AG, or even the White House. Conversely, if one wants to settle a FTC merger challenge, they cannot even talk to the Commission because of the Part 3 wall. The randomness of the clearance process and extreme divergent outcomes it is generating confirms our system is broken, and likely also confirms it is unconstitutional."
"As Chairman of the Judiciary Committee, I would convene a hearing on the effect on free market competition of government taking a share of private companies in antitrust settlements and to support floundering firms. Will government ownership tilt the playing field for merger and conduct reviews involving such companies and their rivals? Is the U.S. now embracing the idea of national champions, making it more difficult to resist the efforts of other countries to do so? If so, what it is the likely impact on competitiveness long term?"
Finally, a couple of panelists suggested probing antitrust’s role in healthcare...
"Acquisition of physician groups and the implications for payors and patients."
"Healthcare is a trillion-dollar industry in the U.S. and health spending was nearly 20% of GDP in 2023. What, if anything, should antitrust enforcers prioritize with respect to U.S. healthcare markets?"
