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The Fundamental Goal of Antitrust: Protecting Consumers, Not Increasing Efficiency

By John B. Kirkwood and Robert Lande

Abstract

This article defines the relevant economic concepts, summarizes the legislative histories, analyzes recent case law in more depth than any prior article, and explores the most likely bases for current popular support of the antitrust laws. All these factors indicate that the ultimate goal of antitrust is not to increase the total wealth of society, but to protect consumers from behavior that deprives them of the benefits of competition. When conduct presents a conflict between protecting consumers and improving the efficiency of the economy (e.g., a merger that raises prices but reduces costs), no court in recent years has chosen efficiency over consumer protection. The only exception is the law\u27s determination to protect small sellers from price fixing and other anticompetitive behavior by buyers. This limited concern, however, is just the mirror image of Congress\u27 desire to protect consumers from exploitation. In both buy-side and sell-side cases, the overarching goal is the same — preventing firms that have unfairly acquired power from imposing noncompetitive prices or other terms on their trading partners, thereby transferring wealth from the trading partners to themselves. This conclusion supports a more aggressive approach to many areas of antitrust enforcement, including mergers and joint ventures. Reprinted by permission of the publisher

Topics: Antitrust law, Economics \u26 antitrust law, Consumer protection
Publisher: NDLScholarship
Year: 2008
OAI identifier: oai:scholarship.law.nd.edu:ndlr-1194
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