25. Conclusion

25'. Conclusion The present situation cannot last. It involves a pre posterous contradiction in American ways of getting things done. The morals of the business community and the findings of law of the federal courts are in head-on collision. Almost straight through the fabric of American business, what is honorable and useful by one standard is criminal by the other. The paradox has not yet come to the public's atten tion for two reasons. In the first place, the law moves slowly. It takes years for some antitrust cases to move through the courts. 1'~either the Department of Justice nor the Federal Trade Commission have been getting a fraction of the money from Congress that they would need to take up all the cases that, on its face, the present interpretation of the antitrust laws would enable and even require them to prosecute. In the second place, the battle has so far looked merely like a battle between lawyers over technicalities. The Detroit :workman, stopping to "gas up" for the weekend on his way home Friday night, could not know that the question whether a good-faith price-discrimination re buttal under Section 2(b) of the Clayton· Act does or does not apply to Section 2(a) might make a difference of a half-cent a gallon in his purchase. The consumer has had no inkling, until A&P began to spread its case 193 194 CONCLUSION before the public, that it was his pocket-book over which the battle was raging.

Since the essential purpose of all the variegated attacks has been to hamper the more successful business for the bene£.t of the less successful business, the result has been not to clarify the law, but to dissolve it. When the millions of ·words are boiled down dry, what is left is merely a rule that the bigger companies are almost in variably wrong on some count ot other and the little companies almost invariably right. The result is that nobody knows what is legal and· what isn't. The law is what the government lawyers say it is. And they are essentially interested not in what is done, but in who does it. The purpose of the attack, in the last analysis, is to stop the clock and turn it back. It would keep the dis tribution industries the way they are, discourage tech nological innovation, break down the modern integrated company, hamper and bafflethe normal processes of price reduction, and upset the stability and security that the really big companies achieve through their widespread diversification and innovation.

In Chapters 5 and 6, it was pointed out how the Fed eral Trade Commission, by confusing "injury to compe tition" with "injury to competitors," was thereby soften ing competition at the consumer's expense. But the consumer will also have to pay for the attacks of the Department of Justice, under the Sherman Act, on the Big Three's and Four's of industry, on vertical and hori zontal integration, and on plain bigness in business. They, too, are attacks aimed at protecting the small com petitor, not the consumer, as the government briefs and court decisions amply indicate, and the consumer will have to pay for them.

CONCLUSION 195 These attacks hit not only the consumer, they jeopar dize the national defense.· This is not merely because, if continued with the present rate of success, they would require a complete disorganization and reorganization of American business during a national emergency. The American public is not likely to let them go that far. It is because the armed forces need, for their proper supply and industrial support, "dominant companies," integrated companies, and very big companies, as well as little companies. They needed them in World War II, they need them now, and they will need thein in the future. The breakup of the leading integrated com panies and the divorce, divestiture, or dissolution of the biggest producers and distributors, whether integrated or not, is a luxury the country cannot afford. Its "great concentrations of economic power" in American industry are more essential to the nation's defense than its great concentrations of administrative power in Washington.

The new interpretations of the antitrust laws endanger the political structure of the country. They disintegrate the law, making it a respecter of persons, which tends to be no law at all. They upset the balance of power be tween Congress and the courts, by judicial legislation, which is a usurpation of Congress' role. Whatever "power" they take away from businessorganizations will not revert to the people but is automatically being appro priated by government agencies. An United States Senator stated over 70 years ago: I do not dread these corporations as instruments of power to destroy this country, because there are thousands of agencies which can regulate, restrain and control them. But there is a corporation we may all dread. That corpo ration is the Federal Government. From the aggression of this corporation there can be no safety if it is allowed to 196 CONCLUSION go beyond the well-defined limits of its power. I dread nothing so much as the exercise of ungranted and doubtful powers by this Government. . . . .1 A newspaper sold· on the streets of London a hundred years ago said: "The greatest tyranny has the smallest beginnings. From precedents overlooked, from remon strances despised ... springs the tyrannical usage which generations of wise and good men may hereafter per ceive and lament and resist in vain. . . ." 2 And the ,Governor of a great state once said: Were it possible to find master minds so unselfish, so willing to decide unhesitatingly against their own personal interests or private prejudices, men almost God-like in their ability to hold the scales of justice with an even hand, such a government might be to the interests of the country. But there are none such on our political horizon, and we cannot expect a complete reversal of all the teachings of history.3 BibliographicalReferences Chapter 1: THE SUPREME COURT REWRITES THE LAW 1 U. S. v. Southeastern Underwriters Association, 322 U. S. (1944).