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Antitrust Law Journal

Volume 85, Issue 2

Symposium Editor’s Essay: Building a Better U.S. Competition Policy Corridor

William E. Kovacic

Summary

  • The allure of big substantive policy issues creates a persistent implementation blindside in antitrust enforcement. Legislators embrace soaring goals and regulators launch ambitious programs without thinking hard enough about implementation obstacles that obstruct “the path between the preferred solution and the actual performance of government.”
  • Few, if any antitrust agencies are isolated from politics.  There is even a question whether Humphrey’s Executor (1935), which insulates FTC commissioners from removal except for good cause, should remain good law.  The decision relied on the extent to which providing information to Congress and performing administrative adjudication dominated the FTC’s role. However, these functions are not as prominent today.
  • The logic of having the FTC’s multimember configuration depends crucially on the FTC’s role as an adjudicative tribunal. If administrative adjudication is not as prominent at the FTC, the rationale for multimember governance fades.
  • What influences antitrust agencies’ policy choices: public interest, personal interest, capture, behavioral impulses, or institutional design?  The right answer is likely “All of the above.” 
  • The essay concludes by describing the articles by the symposium contributors, who provide a deeply informative view of the U.S. regime and how American institutions can adapt to perform more effectively in the future. 
Symposium Editor’s Essay: Building a Better U.S. Competition Policy Corridor
Kilito Chan via Getty Images

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Three enduring questions confront a jurisdiction seeking to establish or sustain a competition law system:

  • What are the system’s goals?
  • What policies will best achieve the system’s stated aims?
  • What institutional mechanisms facilitate effective policy implementation?

In the United States, the first two questions tend to eclipse the third. “What to do” has proven to be a more compelling topic than “how to do it.”

The allure of big substantive policy issues creates a persistent implementation blindside. Legislators embrace soaring goals and regulators launch ambitious programs to accomplish them without thinking hard enough about implementation obstacles that obstruct “the path between preferred solution and actual performance of the government.” Inattention to implementation obstacles that stand between policy goals and their realization in practice is a continuing source of disappointment in competition law and other policy domains.

In some ways, the U.S. competition policy system resembles the passenger rail transportation network between Washington, D.C. and Boston, Massachusetts. A state-of-the-art rail system ought to cover the distance between Washington, D.C., and New York City in 60 minutes or so. The actual journey on the fastest passenger train takes about three hours. Rolling stock for an hour-long journey is readily available, but inadequate roadbeds and cramped tunnels force modern trains to slow to a relative crawl at several points. Infrastructure weaknesses degrade system performance.

There is no shortage in the United States of high-powered substantive policy proposals for antitrust enforcement, yet these measures must run on the institutional equivalent of the existing Northeast Corridor rail infrastructure. From time to time, the United States has carried out major upgrades of its competition policy institutional framework. Despite these measures, and the occasional blue ribbon panel report, there has been an intriguing contentment with the U.S. institutional regime and its complex architecture. Where some see a distressing lack of coherence, others revel in the system’s extraordinary multiplicity and fragmentation.

Several forces may disturb the contentment. The first is the federal judiciary, which seems inclined to revisit longstanding assumptions about the administrative state. In several cases now in litigation, the Federal Trade Commission faces formidable challenges to its structure and operations. This is a moment of peril for the FTC. One or more of the pending litigation matters may make its way to a Supreme Court, whose recent decisions foreshadow a tough look at the FTC’s institutional framework and the larger U.S. system of regulatory agencies.

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Video: ALJ 85:2 Introduction featuring Bill Kovacic

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