For nearly five decades there has been a basic, relatively stable consensus among United States antitrust practitioners, scholars and courts that the goals of competition policy, and thus of governmental antitrust enforcement, should be the neutral economic principles of market competition, consumer welfare and efficiency. That consensus is under threat today, a potential victim of the extraordinarily divisive politics we are witnessing in contemporary America.
Two examples are illuminating. First, President Trump remarked during the campaign, and tweeted after his inauguration, that the pending AT&T/Time Warner merger should be blocked, leading to much speculation that he would use the Justice Department to punish CNN, an outspoken Trump critic and a Time Warner property. Second, Democratic Party leaders recently unveiled a new, populist theme which highlights as one of its three pillars more aggressive merger enforcement, in part as a job-preservation vehicle, namely to “protect consumers, workers and competition.” (That itself is a revision to settled doctrine that antitrust protects competition and consumers, not competitors.)
In the 1970s, the infamous “Dita Beard memo” — revealing the Nixon Administration’s secret application of political leverage favoring a controversial ITT acquisition spree — led to a push for more open and independent antitrust merger enforcement. This resulted in bi-partisan passage of the Tunney Act and the Hart-Scott-Rodino Act to mandate merger reporting, enforcement transparency and judicial review of governmental antitrust consent decrees. The related Horizontal Merger Guidelines embody that transparency, provide predictable guidance on antitrust merger policy for corporate acquisitions, and have been accepted by both conservative and liberal administrations since 1982. No one seriously questions the wisdom of those policies.