Document Type

Article

Publication Date

7-6-2017

Abstract

Why would anyone want to use antitrust law as a wealth distribution device when far more explicit statutory tools are available for that purpose? One feature of antitrust is its open-textured, nonspecific statutes that are interpreted by judges. As a result, using antitrust to redistribute wealth may be a way of invoking the judicial process without having to go to Congress or a state legislature that is likely to be unsympathetic. Of course, a corollary is that someone attempting to use antitrust law to redistribute wealth will have to rely on the existing antitrust statutes rather than obtaining a new antitrust provision that is more explicitly distributive.

One possible lever for redistributive antitrust is a link between market competitiveness and wealth equality. A good deal of literature suggests that competitive markets are conducive to the more even distribution of wealth. Of course, the antitrust laws already have an agreed upon goal of making markets more competitive. The most defensible goal for the antitrust laws is prohibition of practices that serve to reduce output anticompetitively, which is simply a statement of the consumer welfare principle.

The arguments for an antitrust consumer welfare approach are of three general kinds – those derived from legislative history, those derived from principle, and those derived from administrative concerns. The legislative history makes a weak case for consumer welfare, but as between consumer welfare and general welfare the former is a clear winner. Second, arguments from principle do not get us anywhere because they are very sensitive to assumptions. Third, the arguments from administrability strongly favor a consumer welfare approach.

That then leaves one question pertaining to wealth inequality. Suppose we start out with the premise that antitrust harm consists in a market-power-driven output reduction. Accepting that competitive markets are conducive to greater wealth equality, hasn’t antitrust already done all it can do? To ask that question differently, are there any circumstances in which antitrust should favor practices that reduce output simply because these practices also yield a more appealing distribution of wealth?

Comments

CPI Antitrust Chronicle, forthcoming 2017.