Cato Policy Analysis No. 739, “Antitrust Enforcement in the Obama administration’s First Term: A Regulatory Approach,” was released today and posted on the Cato Institute’s website (www.cato.org). Diana Thomas and I worked on this “white paper” for well over a year and a few times last summer I wondered if it would be out before the end of Obama’s second term.
In any case, the paper makes two key points: First, with considerable data-gathering help from former USU undergraduate student Ike Bennion, who took my law & economics class in spring 2011, we undermine the claim that antitrust enforcement was less active under George W. Bush than it had been under Bill Clinton and cast doubt on the Obama antitrust team’s wild claim that the financial crisis and the “Great Recession” was caused in part by Bush being asleep at the antitrust policy switch. Second, by summarizing some of the antitrust cases (we focus on mergers) brought during the Obama administration’s first three years, we document a disturbing (to us) shift toward difficult-to-enforce behavioral (“conduct”) remedies and away from “structural” relief to resolve concerns about the effects of proposed mergers on competitive market conditions. That shift, in our view, continues to transform the Antitrust Division of the U.S. Department of Justice and the Federal Trade Commission into acting more like regulatory agencies than law enforcers.
Antitrust policy is somewhat arcane, but has major impacts on what private businesses are permitted to do. The paper by Diana and me will help you understand how the enforcement of the antitrust laws is carried out in actual practice and how what seems to be a straightforward, well-intentioned policy frequently is susceptible to political influence.