Preface

The flurry of federal and state antitrust activity against firms such as Toys “R” Us, Staples, Intel, and Microsoft may signal the beginning of an unfortunate new era in enforcement. Antitrust regulation, like a relentless Terminator, is back in business and the economic havoc it threatens is considerable.

My position on antitrust has never been ambiguous: All of the antitrust laws and all of the enforcement agency authority should be summarily repealed. The antitrust apparatus cannot be reformed; it must be abolished.

It is said that much is risked in calling for repeal. Any call for repeal is likely to galvanize those interests committed to a return to the old-style, traditional enforcement policies. In addition, the antitrust “establishment”—attorneys, consultants, antitrust agency bureaucrats—would probably step up its attack on those who intend, from its perspective, to further “weaken” antitrust policy. Abolitionists would again be portrayed as pro-business and anti-consumer, devoid of any concern for consumer welfare or economic fairness. The most serious danger, presumably, would be that a principled opposition to all antitrust could delay important antitrust reforms or even reverse some of the slight administrative reforms already achieved.

Similarly, any serious movement to repeal is said to run the risk of alienating the support of those critics of traditional policy most responsible for the modest antitrust reforms that we have seen to date. The majority of important antitrust critics do not support the repeal of antitrust laws; in their view, there is an appropriate role for antitrust policy in a free-market economy, although one that is reduced in scope from the traditional understanding. They would argue that antitrust is still necessary for combating cartels, very large horizontal mergers, and bona fide predatory practices.

I emphatically disagree. There certainly are risks in working for repeal, but there are even greater risks in not pushing the intellectual argument against antitrust to its logical conclusion. I will argue that the case against antitrust regulation—any antitrust regulation—is far stronger than even its most important critics are willing to acknowledge. I will argue that the employment of antitrust, even against private horizontal agreements, cannot be justified by any respectable general theory or empirical evidence. But even more practically, I will argue that the very modest administrative reforms that we have seen can only be temporary. They were, after all, only administrative reforms, and we have already fallen back into the quagmire of more traditional enforcement policies. The greater risk would be to remain content with some modest “reform” agenda while leaving the entire antitrust institutional structure of private litigation, agency enforcement, and court review essentially in place. It would be far better in an entirely practical sense to abolish all of these institutional arrangements and simply be done with the greater risk.

Many of the arguments I develop and cases I discuss in this book will be familiar to readers of my Antitrust and Monopoly.¹ New readers who find these ideas stimulating—or infuriating—may wish to pursue some of them in greater depth elsewhere.² I intend, with this revised edition of Antitrust: The Case for Repeal, to reach a wider audience and to promote a greater public understanding of the case against antitrust regulation. Such an understanding still appears necessary.

¹Dominick T. Armentano, Antitrust and Monopoly: Anatomy of a Policy Failure, 2nd ed. (Oakland, Calif.: Independent Institute, 1990).

²Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself (New York: Basic Books, 1978); Yale Brozen, Concentration, Mergers, and Public Policy (New York: Macmillan, 1982); Fred L. Smith, Jr., “Why Not Abolish Antitrust?” Regulation 7 (January/February 1983): 23–28; Frank H. Easterbrook, “The Limits of Antitrust,” Texas Law Review 63 (August 1984): 1–40; Fred S. McChesney, “Law’s Honor Lost: The Plight of Antitrust,” Antitrust Bulletin 31 (1986): 359–82; William Shughart II, The Organization of Industry (Homewood, III.: Richard D. Irwin, 1990); and Fred S. McChesney and William F. Shughart II, The Causes and Consequences of Antitrust (Chicago: University of Chicago Press, 1995).