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

Maureen Ohlhausen opened with a discussion about the role of agencies in antitrust and a concern about preserving the core role of Congress in setting antitrust policy. She believed that the traditional pillars of antitrust analysis situated in careful analysis of law and facts provides the tools that are necessary to protect competition, the central role of antitrust policy. She turned to remedies and expressed a concern that much of the remedies discussion was untethered from possible antitrust violations. She also noted that it was important to define appropriate boundaries between antitrust and regulation and to make sure that antitrust focuses on the competition issues that are its comparative advantage.

Bill Kovacic’s statement (filed jointly with Alison Jones) focused on what he described as the engineering aspect of antitrust policy. It is one thing to have good theories about what an antitrust system should try to accomplish, but something quite different to build an enforcement structure that makes implementing that vision possible. He focused on what he saw as the inadequacy of the resources being devoted to the Federal Trade Commission with the consequence that capable FTC personnel frequently leave. That loss harms the agency directly and creates concerns about a revolving door between the FTC and the firms that in engages with. The solution, in his view, is to increase funding substantially for the FTC and for salaries as part of an experiment in improving how the government would function if it could pay closer to market wages.