Antitrust Policy in the 21st Century: Is There a Need for Reform?

Our third session brought together Bill Baer and Spencer Weber Waller. Baer emphasized that the consumer welfare standard was a sensible framing for antitrust policy and that he didn’t know of a better alternative, but he feared that in actual application, enforcers had become too cautious and that that had led to significant under-enforcement of the antitrust laws. He believed that agencies should give courts better guidance on how antitrust policy should be implemented, though he noted that while the horizontal merger guidelines had been a successful example of that process, it had taken a substantial amount of time for the courts to come on board.

Waller believed that current U.S. antitrust policy was substantially out of sync with much of the world. While the United States once had been in a position of leadership, it had now been pushed to the side as the European Union approach to competition policy had become, well, almost dominant. Waller believed that the right way to intervene in U.S. antitrust policy was to add an abuse of dominance framing in Section 2 of the Sherman Act and that doing that would help to bring U.S. law into better sync with the rest of the world.