This episode is audio from the What’s Special About Consumers When It Comes to Competition? panel from the Engelberg Center's Conspicuous Consumers Symposium. It was recorded on October 17, 2025.
Announcer 0:00
Welcome to engelberg center live!, a collection of audio from events held by the engelberg center on innovation Law and Policy at NYU Law. This episode is audio from the what's special about consumers when it comes to competition panel from the engelberg Center's conspicuous consumers symposium. It was recorded on October 17, 2025
Scott Hemphill 0:31
so Thanks y'all. I realize we're the main thing keeping everybody from their weekend. So glad to have you all joining us. It's a pleasure to be moderating this panel on what's special about consumers when it comes to competition. First, let me introduce my fellow panelists to my left, my colleague, Daniel Francis, prolific, recent or forthcoming work in Yale Law Journal, Journal of Economic Perspectives, author with Chris sprigman of a leading open source casebook, the leading open source case book in antitrust. A JSD graduate of this law school, like everyone in this panel, has had senior enforcement roles in antitrust in his case at the FTC to his left, Doha Meki, senior fellow at UC Berkeley's Center for Consumer Law and economic justice. Also very senior enforcement roles of the DOJ, including acting head of the antitrust division. She's been a leading voice on labor antitrust. Finally, Eric Posner, to my far left haven't said that that often, I'd say the Kirkland analysis Distinguished Service Professor at the University of Chicago Law School and a visiting professor with us this semester at NYU Law, hoping to persuade him to stay for longer, for forever. He's written broadly and extensively across many legal fields, I'm tempted to say all legal fields, but his most recent work has been an antitrust and has likewise elevated the importance of labor antitrust, including a book how antitrust failed workers. He likewise has held senior position in the antitrust division. So I'm going to say a few words to kind of set the table a little bit and then kick off discussion. Our starting point is that we often say that we care about protecting consumers from anti competitive action. The Supreme Court famously, though someone enigmatically described antitrust as a consumer welfare prescription. So let me take each of those words and sort of spin them out a little bit consumer and then welfare. So this first question, who do we protect consumers? What do we mean by consumers? What does that rule in or rule out? As you can imagine, Supreme Court says it protects consumer welfare. Everybody wants to say, Well, I'm a consumer. Come protect me. We might ask, does it protect sellers, as opposed to buyers. Consumer. Sounds like buyer sellers that are harmed by anti competitive action. How about sellers of labor? I think the collective response on this panel is likely to be, of course, we care about protecting sellers. I think that's probably at least now, partly to the good offices of others on the panel, a pretty uncontroversial position. Some would say then it's not consumer welfare but trading partner welfare to kind of incorporate both the buy side and the sell side. Or we could just stick with consumer welfare as an admittedly kind of awkward shorthand for situations where we're talking about sellers of labor who are not in that guy's consumers at all really second consumers sound like individual humans. So does that mean we leave out businesses when they are buyers? No, typically, I think it's pretty commonly understood within antitrust that purchasers who are businesses get protected as well. So does that mean consumers? Okay, they're not just consumers, but also workers. They're not just people, but also businesses. Can we at least rule out intermediate purchasers, so businesses that buy stuff and then resell it? Maybe they're not protected because they're not consumers. But again, we count we count them as well. Maybe we can at least rule out wrongdoers, the consumers we typically think of as victims. So maybe the wrongdoer, at least the wrongdoer, business or individual that's on the hook for a potentially antitrust violation, I think we broadly say, yeah, that's not who we're protecting by consumer welfare, except, and this will just be an aside that we probably won't spend much time on. The most famous articulation of consumer welfare was probably Bob bork, who very much included the actor who was in trouble. As part of the welfare that was relevant, and who confusingly defined consumer welfare to include the welfare of that producer, wrongdoer. I think no one is misled by that today, but it's just added another element of confusion in this whole, this whole picture. And when we say rule out, what do we mean? Do we mean that they're not a protected class, or merely that they're not our main emphasis so we could accept that there's all these different groups that are protected in principle, and yet think that scarce enforcement resources ought to be focused on, let's say B to C, business to consumer situations, rather than B to B, business to business situations, that would be one possible place to go. Two or three more words, then I'll stop. When we think about consumer welfare, we just talked about consumer on the welfare side, we might say, Okay, is it consumer welfare that we're really focused on? That's a kind of economist's game. The more we talk about welfare, the more power we may be, or influence we may be granting to economists to kind of do the to do the work of figuring out what's anti competitive or what's not. There's been a big push back against that. I think it's fair to say, recently, recently to move away from thinking about welfare and consumer welfare toward something else, maybe something about process, or maybe something about power, and maybe that's something that we'll be discussing as well. So I'll stop and start asking questions and probably talk a little less. Let me start with Doha. So you spend a lot of time at the apex of these enforcement apparatuses. Thinking about enforcement and enforcement focus. To what extent are consumers, as opposed to businesses, let's say, or maybe as opposed to sellers, a distinctive focus in antitrust enforcement.
Doha Mekki 7:02
Well, thank you so much to the engelberg center for having me, and thank you Scott for this deceptively elegant question that at any sort of standard antitrust conference would probably ignite like hours of discussion about what exactly it is that antitrust is meant to do and how it's supposed to do it, and why. So let me start with a disclosure, which is that I'm not an academic, and I come to this question with the humility of a practitioner that said I did have the great fortune of leading one of the major institutions of antitrust, which was the antitrust division of the Department of Justice, and I've had some occasion to grapple with this and to think harder about what the democratically legitimate, lawful administration of the antitrust laws is supposed to look like. And so legally, I think it is not controversial. It should not be controversial that the focus of the federal antitrust laws is competition, but baked into the legislative history of the statutes the state laws sort of deal and competition that are, in fact, older than some of the federal antitrust laws, the common law that supposedly is codified in our first antitrust law, the Sherman Act, and sort of what I'll refer to generally is like the general law of the Sherman Act, there's a lot staked in that competition, Right? We say that the second order benefits of competition are, frankly, kind of huge and daunting. They're supposed to accrue to our social, political and democratic institutions. I didn't make that up. Those aren't my words. That's like in, frankly, dicta in some 1950s Supreme Court decisions, and then it's repeated in the 1970s and cases as recently as 2015 it's supposed to be responsible for the allocation of goods and services that, frankly, we care a lot about. Thurgood Marshall calls the antitrust laws the Magna Carta of economic liberty, and says there is important to our economic freedoms, as the Bill of Rights says to our personal liberties. The history of the Sherman Act related statutes makes clear that Congress at least was as concerned with the welfare of consumers as it was with the welfare of producers. And, you know, despite, we'll say, 75 years or so of sort of active enforcement along these lines, there is a movement that, as Scott alluded to, starts to really gain. Main steam and power in the late 1970s that really focused on antitrust as a consumer welfare prescription. Antitrust is a very important public law, and for all of us who have had a hand in the administration of that law, especially working under or for people who are nominated by a President and confirmed to do their big jobs with the advice and consent of the Senate, know that there is a very public sort of political edge to that job, right? People sort of expect that public administration, administration of law is going to work for them. And so setting aside that I believe and have written about antitrust law as sort of protecting consumers and producers and trading partners, right, and sort of encompassing all of those forms of welfare people primarily think of their participation in markets as consumers. And so it is not surprising then that the lion's share of enforcement at both the DOJ and the FTC has really focused on consumers until recently, because of good work from people like Eric Posner and others. And so you know, we'll have hopefully plenty of occasion to talk about, you know, whether there's something special about consumers, but I guess to finally come around to the really big and important question that you asked, Scott, I don't believe the law, the substantive antitrust law, sort of confers like a primacy to consumers. That being said, I remember for many years looking sort of over at my friend Daniel and being really jealous that the FTC got to enforce in cases where there was like a very direct consumer facing like product, right, like razors and baby food, and these things that people can, like, hold and touch and see and go out and, like, see on shelves. So there, there you have it.
Scott Hemphill 12:12
Reactions from the other our other panelists. You
Eric Posner 12:18
want to go first. Daniel,
Daniel Francis 12:21
all right, so I have sort of one big ticket reaction in the shape of a question, which is this, when I read the legislative history of every time Congress gathered to create or change the antitrust statutes, I come away thinking it's a kaleidoscope of views about who really matters at first order to the antitrust project and what interests of those persons the antitrust laws are intended to protect. So I see some really explicit concern at different points with the interests of persons almost purely as purchasers of products and services. But then other strands that are fixated on small businesses, other strands that are fixated on workers. Do you read in sort of the historical character of antitrust a clear theory of who this is for? Or is that something that we as you know, enforcers and officials and people who care about antitrust and competition and innovation have to kind of figure out through a grand conversation about what the best version of this product project is today.
Doha Mekki 13:33
I think there's no question that when you look to like language that's actually in the statute, like restraint of trade, like, if you look at like the first restatement of contracts, which even you know, some of the most conservative judges around sort of view as authoritative, you know, sort of what counted as a restraint of trade really seemed to encompass a lot of forms of producer welfare, which maybe is not that surprising, because we know that farmers and agrarians are some of the biggest and like loudest proponents of not just anti trust law, but like an anti monopoly statute, right and anti trust and anti monopoly are, in fact, different. But I think, I think your observation is the one that your friend and mine. Robert Bork also was curious about, he thought that antitrust had no direction, that it was rudderless right, that it was protecting inefficient producers, or, sorry, inefficient smaller businesses that there was too much concern with, you know, things that were sort of not legitimate, in his view. And setting aside that I think the late Judge Bork was wrong about this and many other things. I think one of the reasons folks who have a narrower view of antitrust than I do, perhaps succeeded in convincing courts and. And businesses that supported the efforts to narrow the law that, like a focus on consumers, was somehow, I don't know, sort of less politically explosive, less subject to, yeah, and again, I think this is bunk, right? Like I don't believe that it was politically less fraud. In fact, I think in many ways it's outcome determinative. But there you have it. This is not
Scott Hemphill 15:27
hearing you guys. Also makes me wonder whether sometimes we are Hamming up the consumer facing nature of it beyond where it really is. So you at DOJ are sort of looking over jealously at ftc that has all these consumer facing industries, and the one that I think at first is Pharma. So, you know, we're really worried about this conduct by pharmaceutical companies that prevents the generic from coming in, because once the generic comes in, the price falls. And therefore, yeah, the price falls. From the standpoint of the pharma company, this is mainly to the benefit of payers. I mean, yeah, sure, ultimately, behind the payers are, oh, wait, mostly employers. And behind that there are the employees who are the individual consumers. And yes, certainly some pharmaceuticals are purchased by by folks that don't have insurance. And there, there is a real gain by seeing the drop of prices at a company's generic entry. But the bulk of the economic effect is not those, yes, suffering, non insured individuals, but it's but it's often an insurance game, an insurance company savings in the first instance, which is from the standpoint of political salience. From lower we all we think of lower pharmaceutical prices as being highly politically salient, but sitting behind that is a more complicated set of institutions that are running that are being intermediated by businesses, as opposed to just hitting consumers. I mean, your co pay when generics come in, your copay may not fall. It may even go up, depending on the insurance that you have. Eric, yeah,
Eric Posner 17:04
though I had a similar reaction, let me ask a question this way, when you were at DOJ, as you know, there are constantly these cases coming in, especially these merger cases, because when companies merge, when large companies merge, they're required to inform the DOJ and the FTC, and then there's a review process. And you know, these companies are merging all the time, and so there are many more, I assume there are many more mergers than that the DOJ and the FTC could challenge, right, even that were, even though that many of them are unlawful, or very likely unlawful. So like any government enforcement agency, you have to pick and choose among the cases and and I, and I think you know, one of the, as people have already mentioned, one of the motivations for this consumer welfare standard was that there's just too much discretion among courts or enforcers, and the consumer welfare standard narrows that but, but what my question for you is, how do you, you know, make these decisions, if we have, you know, two, you know, relatively similar mergers involving big companies, And one, they're going to have effects on different groups of people. So one might affect workers more, the other might affect consumers in the sense of ordinary people. The other one might affect, as Scott was saying, you know, an intermediary, like an insurance company. Another might affect farmers and and, so you there just seems to be a riot of possible factors that might influence you to think that enforcement is more important in one case than the other. So how did you think about those sorts of
Doha Mekki 18:52
things? Yeah. Look, I can't speak for every administration, but I think for us in the Biden administration, we thought about the biggest, most intractable issues, right? Like, where was there the most harm? The antitrust division at its high point had a $233 million budget to police a $29 trillion economy. You have to make really, really hard choices. And so, you know, the sort of the example of a case that you know, have consumer dimensions and labor dimensions, and you're sort of concerned about it, and like, left making hard choices about what to allege and a potential complaint challenging it. Frankly, if you're concerned about a merger, you need to stop it, and you need to pick sort of theories that are sort of best calculated to stop the bad merger, even if you don't express every sort of flavor of the harm. And so I think there were examples in the past of ways to express concerns about sort of the consumer facing dimensions of a deal, or the sort of effect on working. People and maybe the agency stopped just short of expressing all of those things, because, frankly, the reality isn't litigation and like sort of putting on a trial, just make it a better choice, more often than not, to kind of streamline your views. But I do think that we started to make choices about expressing labor market concerns very directly and putting them ahead of the potential consumer impact. I think the Penguin Random House Simon Schuster merger was certainly one example of a deal where the DOJ could have been focused on, you know, the number of published books that may be like harmed or something as a result of the deal. But instead, the DOJ made a choice to challenge the merger as potentially harming competition for author advances, right? And again, in the litigation of that case, there was a more compelling story, more compelling witnesses available to tell the harm, the potential harm of that deal that would not have been available if the DOJ had picked a strictly consumer facing, traditional view of the market harm.
Eric Posner 21:18
Now, as you know, I was a big fan of that merger challenge. But as I was, you know, praising it, various people said to me, but look, you know, the market that you defined are authors who are paid $250,000 or more for their manuscripts as an advance. So that wouldn't include royalties, the Stephen Kings of the world. These are the rich people and the consumers, the people who buy the books. You know, they're ordinary people. So isn't there a kind of a paradox here that you brought this case for the sake of the worker, but maybe you ended up benefiting these wealthy storytellers who obviously could tell stories rather than the readers.
Doha Mekki 21:59
So one of the best parts of my job was being in the courtroom. The day Stephen King took the stand, he was the first witness was sworn in that case. It was a wonderful moment where he says, you know, you ask for your name and your job, and he says, Hi, I'm Steve King, and I'm an author, and the whole courtroom just like died of laughter. You know, the best part of his testimony was that, you know, Stephen King today was not Stephen King when he was getting started. And he told a story about how, for the ordinary author, the as yet, sort of like famous person who wants to write books, these advances really matter. There's flavors of this in the Ticketmaster Live Nation section two case that DOJ felt as well, right? It's not about the Taylor Swifts of the world, the beyonces of the world, that there are working artists for whom competition really matters again. Sort of comes down to the compelling stories that are available. But I see that not as a contest between consumers and working people, but as an obligation to stop really bad conduct in a market that is pervasive, that harms a lot of people, for which there's a high dollar volume of harm attached, and needing to do the most effective job of that. Can I
Daniel Francis 23:20
just pick up on that? So one thing that I sometimes struggle with, struggled with as an enforcer, struggle with now that I'm just hanging out and writing rather than making enforcement choices, is whether
Scott Hemphill 23:32
that you've abandoned your humility.
Daniel Francis 23:38
Sorry What limited humility that was so each of us as consumers is consumer is consuming at once in a whole bunch of very different markets, right? Sometimes we buy milk, sometimes we buy luxury, high priced products. Sometimes we're buying exciting Stephen King novels. Do you share my sense that an enforcer, whether or not they talk about it explicitly, has to have a theory of whether and to what extent some preferences, some markets, are more important than others. So sometimes the most compelling merger challenges or conduct challenges present themselves in luxury markets, where the consumers in question are pretty inelastic, which antitrust actually likes, because then they're the ones who can be overcharged a lot in a way that antitrust courts recognize and allow consumers to recover for. So recognizing that the recent history of antitrust enforcement includes everything from sugar for the kitchen table with the DOJ sugar merger challenge to luxury handbags, or at least some of the commentary around the case is gosh, the biggest factor affecting federal antitrust enforcement is limited access to resources and capacity to bring cases. You know, like, what's the hospital merger or the dialysis merger that had to be left on the cutting room floor in order to challenge the tapestry handbag merger? One part of a response might be, yeah, but look, this is an important way to set a policy or establish a principle that will do a bunch of good work, even protecting consumers in their more vulnerable activities. So I suppose the top line question is, how do you think about this? The more granular version is, do you share my sense that however much strict welfarists and enforcers might say, we treat all consumers identically, and all markets identically, in practice, that can't get off the ground and so people have to have in order to enforce sensibly, a theory of which markets matter most. This is
Doha Mekki 25:46
a fascinating question. I guess I was more concerned about big handbag than Daniel. But look, I don't know that enforcers, as a practical matter, are choosing or like, making a case that, like some consumers, welfare matters more than others. Again, these are enforcement choices and how to tell the most compelling story. Antitrust, whether you love it or hate it, sort of comes down to a single market rule, right? Like, if you can identify harm in a single market, right? It does not matter what's going on another like 99% of the deal, again, the total welfarist really hate this, but that's, that's the law that we have. And so are the agencies, like engaging in elite preferencing, like when the DOJ is worried about craft beer. Is it sort of making a choice to privilege like the high end beer consumer and not the person who's drinking Budweiser. I don't think so. I think it's just easier to define a narrow market, right? And I remember when I was so I again, had the great fortune of helping to build a very comprehensive labor market program at the DOJ. And some of the early feedback that I got was like, why is the DOJ bringing cases about fancy doctors and these like highly specialized labor markets and not people working on an assembly line? And I don't think the answer, in fact, I know the answer is not that the DOJ does not care about the average working person this country. It is, frankly, just much harder to define those markets. And again, when you are faced with very fast litigation timelines, and especially merger challenges, resource constraints and so forth, you are thinking about vindicating the law, the applicability of law, like principles that are important to like, dust off and test from time to time in markets that are definable and in cases that are winnable, because again, you see bad conduct. If you see a bad merger, your job is to stop it.
Scott Hemphill 27:58
Let me just some of this may just be sort of restatement and amplification, but I'm really struck by this. It's not something I've thought much about that you know that the that the cases that are winnable, identifiably winnable, are going to be cases that have demonstrably narrow markets, maybe that part I've thought about before, but that the narrow markets might tend to be higher end subject to price discrimination. And if you have price discrimination markets, you could go after either of them. You're likely to do the one with the higher price, not the one that's the lower price, even though it's even though there may be a price rise over there too. Some of this may be more apparent than real. I mean, you're being sort of quietly teased a little bit about the Stephen Kings of the world. But, like, part, if I understand correctly from the trial, there was a cut point of 250k or more. But, I mean, the expert was like, well, if it's 250 it comes out this way, and if it's 200 it comes out this way, and if it's 150 it again comes out this way. That basically, all the way down the distribution, the result is likely to be the same. But law requires us to say something concrete, and so we're going to create a cut point, but that the answer is robust to the choice of cut point. And this is, I guess, a long winded way of coming back to your idea about vindicating a larger set of situations, that you're making the world safe more broadly across the distribution of advances by using this unusually concrete or clear, clear subset. The other thing I was wondering here in response is like, I mean, you know, I think it's been true for all of us. We've observed that cases, the entire menu of cases, doesn't show up. I mean, occasionally, yes, like, if someone wanted to bring a case against Blue Cross, Blue Shield, like we've had decades to do that, and you can wait for the right time, I suppose, ex post to go after it, but with prospective merger challenges that come when they come and say you to make a call about it, unless one is willing. Willing to, as one should be willing to do some cleanup after the fact with ex post merger challenges, to the extent that something turns out to be more important than it seemed. You know, at the time, Eric, you seem like you might want to, oh,
Eric Posner 30:12
sure, yeah, I was. I mean, I think one of the malign effects of, you know, Burke's view, and more broadly, the influence of economics on antitrust law, is this idea that antitrust laws is, you know, very one dimensional. It's just supposed to maximize consumer welfare or social welfare, you know, or total welfare. And what's always struck me about this is this is not how we think about any other area of the law. All other areas of the law, we make a distinction between the law itself, which is often very kind of crude and enforcement decisions. And in all areas of law as a very rough approximation, the enforcers are weighing the seriousness of the impact of a particular type of behavior and how easy it is to prove it. So for example, with law enforcement, this is all very obvious. In other areas of the law, they're going to investigate murders, they're going to put a lot of resources in both investigating and prosecuting it. If somebody you know picks your pocket, or even if your house is burglarized, you know, the police will come over and look around, but they're not going to do anything about it, unless, you know, the burglar is there when they arrive, and then they can just catch the catch the person, or, you know, civil fraud. This happens all the time. Fraud is happening constantly. Most of the time. It's just too small for the authorities to want to try to go after it. But in some settings they do because it will make a point. We're used to enforcers also like going after people who are more prominent so that they can more get the free publicity. Which will improve, which will improve enforcement. So with antitrust, it's the same it's the same idea. It's a very crude area of the law. If it were enforced in a mechanical way, it would lead to disastrous outcomes. But the enforcers, and to some extent, sort of standing law and other aspects of civil litigation constrained that, which is why I was asking you, how you decided to bring these cases.
Scott Hemphill 32:24
Can I stay with you? Eric, on this question of kind of the role of economics, I confess to having some mixed feelings about the role of economics in antitrust. As someone who loses economics in antitrust is of substantial degree. You've done some writing about how we should think about mergers that I think bears on this question of the role of consumers and consumer welfare maximization. So, you know, part of your writing in the merger context has been, I think, I think this is fair arguing from a sort of shift away from looking at the merger. I mean, the merger guidelines that the agencies say they use, historically has thought about whether, ultimately, does the merger reduce prices or not? Right? It might create some power over price, which tends to create pressure to raise prices might lower marginal cost. A few of my students in here have heard this before, which will tend to lower, they'll be pressure to lower prices. And if that downward pressure is bigger than the upward pressure, then leave it alone, because the overall price is going to fall. And you kind of say, well, wait a minute, statute doesn't say this right. Statue says something else. Can you talk about that a little bit? And whether, I mean, it sounds to me like a potentially an important move away from economics as a way of thinking about merger control,
Eric Posner 33:46
right? You know, economics still is involved, but the economic kind of implicit normative principle of economics is efficiency and and I think we should move away from that. But let me provide a little bit of background for those of you who haven't taken antitrust from Scott or Daniel or any of the other people here. So the as I mentioned earlier, the Justice Department, the FTC, routinely challenges or reviews and challenges mergers under statute that says that a merger is illegal if it may substantially lessen competition, and that's all the statute says. And so there's been a lot of debate about what substantially less than competition means. And the Court, the Supreme Court, over the years, has adopted, you know, has, has addressed this issue in various ways that are sometimes confusing. But it was this, you know, this, this, this is where Bork comes in. So an economist named Oliver Williamson, who would later gone and win the Nobel Prize, had was, I guess he was the economist at the Department of Justice in the 1960s and his boss asked him, you know, there all these mergers are coming in. What? How should we from an economics perspective. Perspective, how should we, how should we decide which ones to challenge? And as an economist, he came up with what was just an efficiency test, where you, as Scott was saying, where you balance, you know, the pressure. If a merger reduces production costs because of economies of scale, that'll could reduce prices, but if it increases market power, then that could increase prices. You just balance those and figure things out. And then Bork goes and misnames that the consumer welfare standard where, where's it's really a total welfare standard or efficiency standard. And the you know, the irony about about Williamson's rule is that if you had a merger to monopoly, right? So you'd think, if you have two firms in the market and they merge and become one firm, that would be a reduction of competition, because before the merger, you have two firms that are competing, and afterwards you have one firm that is not competing with anyone, because it's a monopoly. But under Williamson's and works rule, that would not that would be, that would be lawful under the standard, under the statute. And the reason, why is that the the surreptitiously redefined competition to mean prices going down, which is not what competition is. Competition is rivalry, rivalry between different firms, under certain conditions, that rivalry will cause prices to go down. But they're not the same thing. They're different. They're different ideas. But this, this idea of mergers that reduce prices is good gets entrenched in the antitrust division and later the FTC, and it becomes a kind of enforcement practice, although my view is it's never become the law like it's not something the courts have have accepted in any kind of broad way. But this because, but because the agencies are do most of the work bringing merger challenges. They're kind of stuck with their in their with their policy. So in these cases, you often see discussions of whether a merger will reduce prices, or prices or not. So I think, I think now, over the years, this has been going on since the 80s or even earlier, and what economists have discovered through their empirical work is that there's some controversy over this, but I think the the majority view it's called is that there's been increasing concentration of of of the markets over the last couple decades, and this increasing concentration has very likely caused prices to go up and all that suggests that merger law was being under enforced, right? And so merger law is being under enforced, even though the whole point, according to the various authors of the mergers guide, merger guidelines, even though the whole point of merger enforcement was to cause prices to go down, not not up. So what happened? I think what happened was partly, doing this kind of economic. Economic Analysis is too complicated. It actually, once the agencies commit themselves to do it. It's very expensive to hire economists and have them, you know, go through the data and try to make predictions. It's very hard to make predictions about what the impact of a merger will be. And then the hardest part of it is that the firms that want to merge are, you know, very big firms that hire very good economists, and you have a battle of the experts and sometimes the judges, you know, just kind of throw up their hands, because although there are these details about burdens and so forth, ultimately the agencies have to persuade the court that the merger should not, should not be enforced, should not be allowed to go through. So my argument is that, look, we have this statute nobody it certainly doesn't say that. It doesn't say a merger is lawful if it's efficient or a merger is illegal if it's inefficient. It does not say that. Doesn't say that in the legislative history, nobody really understood it to mean that. It's pretty clear what it means, which is that if the number of firms goes down in a way that would be likely to result in worse outcomes, however you think about it, it should be blocked and and then the problem is trying to operationalize that. And so I've argued that you can operationalize that by just looking at basically the economic power of the firm. So if the economic power increases substantially as a result of the merger, then you block it. And of course, there's a line drawing problem, but that's ubiquitous. That's ubiquitous in the law. So, so, so, so now, where does this leave consumers? I mean, you could call it a consumer indifference standard, because the impact on consumers is no no longer explicitly a part of the legal standard. But again, that's very common in the law where we try to create institutions or legal frameworks in which at a very kind of gross, in a very gross way, it. Advances the public interest, even though we may not demand when enforcers are enforcing a particular law, that they actually show in granular detail how people are benefited by enforcement of the law and and that just brings us back to the enforcement aspect of it, which is like in all the these other areas of the law, where the government enforces the law, we're really putting a lot of trust in government officials to act in good faith. And I think there is an assumption of some kind of political check if enforcers enforce the law in a way that is harmful. Now we're seeing you know that this is a risky, risky assumption to make, but it is a big part of our law, and I don't see why antitrust should be any different from other areas of the law. Okay?
Scott Hemphill 40:50
So just to make sure, just this may be by way of sort of sharpening or confronting it with the line drawing problem. So following situation, let's imagine it is stiff. It's stipulated that because of a cost savings, price is going to fall right? That's a That's a given fact. Maybe you say, we never really know, but let's just imagine for a second, because it has with it an enhancement of power. Let's suppose that's also stipulated it's enhancing power and it's reducing prices, you'd say condemn it that this is a familiar idea, that there's some over inclusivity, sure, but that's common, and that's what we see everywhere. And we basically, either we're fine with it, or we don't really know, or we trust the agencies not to do these perverse attacks, or you don't regard it
Eric Posner 41:40
as perverse, maybe under your assumptions, it is perverse, but in the real world, it's never the case that we know that. In fact, even under the Consumer welfare standard, we're not actually looking at individual consumers, we're aggregating across them. So a merger might harm a whole bunch of vulnerable people and benefit some other people, but in aggregate, you know, create more benefits than harms, and so it would be approved, right? And economists, you know, in principle, don't take a position on kind of, I guess it depends on the Economist. But what should happen in that setting. The idea here is that economic power is at a, you know, at a very general level, something to be concerned about. And so we want to create frictions against firms increasing their economic power in an easy way. So a merger is an easy way to increase your economic power the way a cartel is. On the other hand, if a firm just grows by itself by providing better products that people want, like I have no problem with that. It's this problem of using a shortcut where, you know, the main result would be an increase in economic power.
Daniel Francis 42:47
And black dude, go ahead. No. So just to kind of concretize it a little bit, let's imagine we're in some rural community somewhere, and there's a market, maybe it's supermarkets or gas or widgets, whatever, and it's kind of an oligopoly. You got three or four firms, but it's really expensive to get the widgets to the rural communities. They say, I know what we're going to do. We're going to consolidate our whatever our transport hub is, and we're going to make it like a little train station or bus station or a cargo port. That's going to make it cheaper to bring products and services into the community. So on the story that I'm trying to tell, the consequences of that deal, maybe they're consolidating their upstream transportation facilities is their costs are going to plummet, prices are going to go down, but margins are going to go up. We'd be comfortable, like blocking those deals, recognizing that it's not just the government, but also private plaintiffs who
Eric Posner 43:46
could do so I think that that's a harder case. You're not so you're this is a joint venture, not a merger.
Daniel Francis 43:51
So let's say two of them are going to sell their transportation facilities to the third one or
Eric Posner 43:57
Okay, so it's and if it's a cartel, would you take the same position
Daniel Francis 44:02
well, so we're integrating the transport operations.
Eric Posner 44:05
You had two firms that said, I'm not going to advertise, if you agree not to advertise, as a result of which, our costs will go down, and we'll reduce prices
Daniel Francis 44:16
next. That'll be output limiting, and that would be harmful
Eric Posner 44:19
overall. If they reduce prices, they why would it reduce prices? Because they're they're avoiding the costs of they're avoiding the costs of advertising. It's the whole point is that every one of these rules creates false positives and false negatives. And we have to make some kind of overall judgment of this is really interesting is this part of the conference,
Daniel Francis 44:42
we have a special button when someone says something particularly impressive and delightful, but so is it? So? Yes, that would be blocked, but the idea was,
Eric Posner 44:54
but there are two points here. One is, one is, is that you know when you, when you, when you create these kind. Abstract examples, you can always do that for any kind of general set of rules. So, and my response, you know, in the response to Scott's first example, is you have a merger to monopoly that reduces prices. I don't know agency, I think, has ever allowed a merger to monopoly, even though a merger to monopoly could result in lower prices, if it's like a natural monopoly situation. So, and then the other point, though, is that there's a legal framework here. So Congress made a judgment about a century ago about what we want our merger policy to look like. And you could, you know, I can imagine someone saying at the time, looks because there was a ton of consolidation at the time. That's why they, they passed this law. And all this consolidation was stuff that, you know, might seem quite reasonable, railroads merging, for example, or or, you know, oil companies merging so that they get economies of scale. The concern was, though, that the economy as a whole would become too concentrated, and that would, you know, if we're in an economy that's run by monopolies, or, you know, very large firms in most of the most important sectors, there's a harm that goes beyond the higher prices. There's a potential political harm. They're, they're, they're sort of concerns about, about, you know, these companies, even in different sectors, exerting too much power on the government. And at the time, in the early 20th century, country companies did that a lot. And one other thing I just want to mention, I always find this kind of an interesting fact, which is the first campaign finance law was enacted at basically the same time, around 1907 I think. And it was, it was, it was motivated by the same sort of concerns that led to the Clayton Act, which is the merger Clayton Act Section seven, which is the merger law. And that was, is that people were noticing the corporations were giving a lot of money, basically bribing the government to produce policies that benefited them. And so these were all the peace these statutes an attempt not only to reduce economic power, but to reduce the political power concentrated in the hands of the
Scott Hemphill 47:15
wealthy. Are you making an implicit connection behind that to the draining of economic power as a way to
Eric Posner 47:22
Yeah, I think that is, that was their theory. Yes, that was their kind of assumption of what they were doing. Yes, that there's a connection.
Doha Mekki 47:32
Yeah. These are the second this is not, not fair, because I obviously agree with Eric holy, these are the second order sort of benefits of a competitive economy that I think many of us have talked about, I've given entire speeches about, like this concept. I also think we need to think harder about, like, the real life examples of, you know, the merger that's permitted the abusive, sometimes abusive monopoly that's allowed to persist without real government intervention that is more or less nice to us, like it gives us free products and services. I've sued a couple. Daniel sued one, you know, like you know, for the most part, they're fine, and prices stay low, and consumers are more or less happy, but years down the line, we sort of see that, you know, there's, there's kind of a loaded weapon on the table for someone to come along and abuse, right? And so thinking about the broader aims of the statute, which I think, you know implicitly. I think this is what Eric is describing in terms of his concern about market power and the accrual, the creation and accrual of market power, and why antitrust is at least as concerned with that as prices that consumers pay. I mean, there are current events where we're seeing this. Are media mergers, the ability to censor, the ability to viewpoint discriminate, if you take the concerns of our friends on the right seriously, all of these things sort of flow from or maybe we care, because there's like, a small number of like, sort of viewpoint providers or like media companies, right? And then we have incidents like our friend Jimmy Kimmel sort of being booted for a little
Scott Hemphill 49:34
bit. I will say I was, I was sort of along for the ride on some of this. And then your comment makes me think, okay, the very capacious understanding of the statute that's been sort of stripped, that's had consumer welfare sort of stripped out of it by Eric, creates so much enforcement discretion that all of a sudden I'm
Doha Mekki 49:56
I don't think it's enforcement discretion. So, no, I'm always very curious. Careful to describe these as the second order benefits of competition, like competition is just competition, right? It's rivalry among firms. But in terms of these, like downstream sort of harms, it's not like a basis right for blocking a merger or challenging a cartel. But I think you'd be crazy not to recognize historical, legislative and other sort of understanding of the consequences of letting mergers and cartels run amok.
Scott Hemphill 50:30
Let me turn to you, Daniel. So listening to you and your exchange with with Eric, I was starting to read you as a kind of consumer welfare, almost aficionado, to the extent that you sort of confronting Eric with perversity, a little bit very sad stories about transport hubs
Daniel Francis 50:51
that my isolated rural community people are starving up there. It's now being
Scott Hemphill 50:55
the gas terminal that can't be allowed because so is that. Is that a fair understanding so consumer welfare, you know, all the way down.
Daniel Francis 51:07
I mean, close enough, probably by comparison with with many of the available alternatives. So, and I think this, this conversation, I think is right at the heart of the most important battle that's going on in antitrust right now, and I'd be interested in whether others share my sense, which is that both on the left and the right, the most important big picture struggle or battle is between what I think of as harm focused antitrust and power focused antitrust, Recognizing that sometimes those projects pull in the same direction. But the interesting question is, what do we do when they don't so for some decades, in fact, let me start even one step further than that on my reading, certainly in the merger context and perhaps in other parts of anti trust too, we did the power centered thing. It's expressed in the sort of iconic mid century anti trust decisions like brown shoe and von's Grocery that I totally agree with your reading are very explicit in saying our vision of the anti trust project is not limited to consumer some other set of persons, harms and benefits. This is about power. It's about the nature and character of our markets and our communities, and that's how we're going to do merge a lot. And my reading of the history is that that didn't go well. The mergers that were challenged and condemned were often and sometimes explicitly not harmful or beneficial, and that it led to antitrust getting such a bad rap that it drove the project into the arms of Robert Bork, who not only said, Hey, we need an organizing theory that's more appealing, but also had a bunch of really indulgent ideas about how markets work and how great monopolies can be, and how the harms from private conduct will always take care of themselves, and how anytime the government interferes in the market, it's going to be a disaster anyway. So it was exactly this power focused practice that was explicitly disconnected from a question of whether we're harming or benefiting working natural persons, or natural persons who aren't working, but who exist and have needs as consumers, as employees and as workers. That led to the very excesses of Chicago that almost everybody in mainstream antitrust right now recognizes went way too far and caused harms of its own. So in that battle, I see both on the left and the right, almost all the political momentum around the idea that we have got to get back to power, because the harm focused model, not the way we implemented it, but its bones, have led us down on the left. I think of that as Neo brandeisianism on the right. I think it's one strand in what I'm sort of still trying to understand about sort of new right antitrust policy. I think there's a sort of complicated helix there on the right in that battle. I am firmly but unfashionably on the side of welfare, welfare, harm, harm, harm. The nature of the antitrust game should be to protect persons against practices and transactions that cause economic harms to them in their own market interactions. That includes workers. It includes people who need to buy stuff. There are some complex decisions to be made given scarce resources about who we're going to exert ourselves to protect most, because I tend to think there are more good merger cases that one could bring than there are people available to bring them, and so really hard choices have to be made. But my vision of the game is that the siren call to make this about power. Yeah, and in doing so to accept that that's going to cause milk to be more expensive for families. It's going to cause wages to not be what they would be, because we're choosing to independently prioritize a project of equal sort of equalizing power or pursuing some other vision of what the economy should be. I don't really want anything to do with that version of the project. So I just sort of be interested in the views of others, whether they think that is the right way to understand the battle at the minute on the left and the right. Yeah, so maybe I'll just stop there for reactions.
Eric Posner 55:36
No, go ahead. Yeah, I'll start okay. So I don't actually think we disagree on the normative goal. I think, you know, I'm kind of a methodological individualist who thinks that people, you know, people's well being is what is, what matters, and that the government should try to advance. I think what you want to, you want to what you want is an antitrust law that doesn't require discretionary enforcement. And I don't think that's possible. And I also think that you want an antitrust law where courts and enforcers make complex empirical judgments. And I think that these judgments are too complex for them, and that they need a kind of a freer hand and a less a less restrictive type of law. Now I could be wrong. You know, I could be wrong about this if, for example, the current enforcers cause a lot of harm, or the foresters of the next, the next administration do, but I don't actually think we that this power the distinction you make between power and economics, because, after all, what I'm concerned about is economic power, right? So it's they actually converge into the same into the same thing.
Scott Hemphill 56:50
Doha, do you want to react before I guess
Doha Mekki 56:56
I have a lot of thoughts, but I'll ask a question. So in terms of our merger law, like the language section seven, you know, to me, it reads as though Congress made a judgment, like it's not courts or informer enforcers who are kind of making, like the really big discretionary decisions, setting aside sort of enforcement or not, but that Congress sort of calibrated where its risk tolerance is. I mean, that's certainly the way that we talked about enforcement. That's the way we sort of grounded, like the democratic legitimacy of merger enforcement when we were there, or at least tried to. And so I wonder. I mean, as you read, set aside or set aside the Sherman Act, just as you read section seven, do you not think that Congress dictated its tolerance to be quite low, right? And maybe that explains the bonds the Pabst brewing, the sort of brown shoe, and like other cases that people have criticized recently.
Daniel Francis 58:06
So I think this is a really important argument, including because in other parts of the antitrust edifice, it's pretty clear that Congress chose to do something, I'm sort of thinking here, the Robinson Patman act, that we might really, really be uncomfortable with today, and that might pose really difficult questions for how we should live and do the anti trust project in the shadow of that. I don't feel that way about section seven of the claim act. So I spent four weeks, four unhappy weeks last year, reading every page of the legislative history of the claim act in an effort to figure out whether I could make, for sort of my own satisfaction, sense of that notoriously protean phase in the statute, whether the effect of a merger or acquisition may be substantially to lessen competition or to tend to create a monopoly. I couldn't find so two big picture reactions. Number one, I was shocked at how small section seven was as a subset of all the discussion about the Clayton Act, there was a ton of discussion about what is now section eight, interlocking directorates. There was a ton of discussion about section three, on what's now certain kinds of exclusivity and tying practices. Section seven did not have the central role that I expect, even though now it's the central pillar of our merger law. It was really discussed, you know, not trivially, but it was discussed as a reaction to a relatively modest problem of holding companies being used, in some sense, as a either one might think as an evasion tactic for the Sherman Act or for what remained of state and Corporation laws. And it was extremely clear that there was not a single consensus meaning in the building about what it meant to lessen competition, even to say nothing about what we mean by substantially. There were. Some discussions that were very clearly focused on whether or not the effect of a transaction would be positive or negative for what we would think of as consumer welfare. There was some discussion about the problems of industrial tyranny in various kinds. There was some discussion about the problems of consolidation and concentration, although, I think compared to the discussion in 1950 when Congress didn't touch the substantive merger standard at all, substantially less in competition or tend to create a monopoly, doesn't move in 1950 the theme of consolidation was very, very, very much smaller than it would later become in 1950 so I came away with the very strong sense that Congress did not express, or have in its mind a single organizing principle that would give content to that law. And there were a number of legislators who explicitly said so. There's this one line that always stays with me, the day before the Sherman the day before the Clayton act is enacted says there is not a single one of us in this chamber who has an idea what the effect of this law will be, and that is fully consistent with my mostly miserable reading of that debate. Now the exception is the language tend to create a monopoly. I do think I know what that means, and I think it sounds a lot like contribution to power. But no one in the history of Section seven has ever really tried to take that language seriously as an enforcer or as a court. I think because of the threat that it would do so much consumer harm. But I recognize that reasonable minds might disagree about all this.
Scott Hemphill 1:01:38
I might have just thought it was like numerosity tend to create a
Daniel Francis 1:01:41
monopoly, reducing under like players by one, horizontal matches, early
Scott Hemphill 1:01:45
three to two, maybe like 10 to nine doesn't tend to create a monopoly. But surely two to one does. You could just kill it on the statue, whatever you thought the price was. That might be a hard statutory interpretation to I'm channeling Eric here a little bit, a hard statutory interpretation to resist. I just want to back up one sec. I'm sort of puzzling over one of Eric's comments about how, you know, maybe we should think about antitrust as being a lot like a lot of other areas of law, right? I mean, the degree to which we sort of hide from tort law, for example, which might have something to say about antitrust, it's sort of sometimes a little bit surprising this does I mean, I don't think about all of law as much as I should. Antitrust feels this conversation makes me feel like antitrust has an unusually high degree to which everyone is grabbing the steering wheel. Congress has an interpretation from back in 1890 or somewhat later, courts are trying to sort things out. Entrepreneurial professors are jumping in, like bork, or maybe economists trying to inject their ideas, which actually do make their way into judicial law. The enforcers have, you know, have their own sort of priorities. Are all areas of law contested so much in terms of, like, the basic terms under which cases, cases get brought? I mean, tort law probably not, is my guess. But I guess I'm asking this question, but I'm also just sort of struggling with it a little bit. I think we want to take questions as people think about whether they might have a question. I did have one thing that came out of what Daniel raised is, is he was sort of laying out, you know, one, maybe it's two chairs in favor of consumer welfare. You talked about, sort of consumers who who exist and have needs. And I don't know if you said it directly, but there was a kind of quiet, sort of, well, willingness to pay is kind of a tricky piece of this puzzle, right when we're talking about milk prices being raised or what have you, in some ways, milk might be easier if you think that at least that will fit within most folks budget. But there's a lot of things that have, like very low elasticity that might be outside somebody's reach a high price, low elasticity, a lot of opportunity for abuse. That would take people out of the range. One of the weird things about antitrust is that if you you know, if you get priced out of the market, you don't have a recovery. It's high if you have to pay a higher price for something you're buying, either way, you might get treble damages if the price went just a little bit outside what you could pay. And so you don't buy it at all, you're out of luck from the standpoint of a financial recovery. How do the consumer frame invites thinking about, how do we make sense of the role of willingness to pay? Which is, I mean, you're not a grade against you a little bit, right? Because it's, it's sort of preparedness to pay because you have the money in your pocket to do it in the first place. Willingness has a very green eye shaped economist cast to it. What are we supposed to do with this? You talked a little bit about this. Do you have any reactions? Doha,
Doha Mekki 1:04:55
yeah. So I think I've made my view sufficiently clear on. This panel. And I guess this is a nice way to sort of wrap up my concern about a very like price theory centric a consumer is like, sort of defined by their willingness to pay deeply technocratic version of antitrust, which, by the way, I do not believe is supported by, like the text of, you know, at least our later antitrust statutes, starting with the Clayton act. But right now, we are thinking a lot about abuse of data at scale. Right? There's sort of the algorithmic collusion problem, where there's sort of ready availability of competitor data at scale. But then there's that sort of, I think, more sinister cousin surveillance pricing, I think the end stage, sort of like consumerism, consumer focus to the exclusion of, like, all these other dimensions of economic power and market power, sort of, I think, supports a regime where you can essentially predatory price to death, like if all we care about is the consumer who is willing to pay. It sounds like Delta Airlines is going to find out exactly which consumers are willing to pay like they are announcing that they're using surveillance pricing techniques to figure out exactly what your willingness to pay in a particular moment is. That is very scary. That's a law and policy problem. I think antitrust, standing alone, may not have everything to say about those practices? I think it's going to take antitrust and consumer protection. And, you know, Congress might actually have to do something about privacy right and like, legislate like a comprehensive privacy regime, we might have to do something about data aggregators. So I see a pretty direct line from the rise and, dare I say, tyranny of technocratic antitrust to like a very predatory pricing regime.
Scott Hemphill 1:07:10
Your comment makes me wonder a little bit. So, you know, I had this idea that folks, you know, little bit older than us, who were like, trying to figure out something to work on in around 1996 like, Oh, the 1996 Telecommunications Act, that's what I'll go do, or Obamacare. When Obamacare was passed, it makes me wonder, like folks who are in law school now that we might It doesn't sound crazy to me that over the next few years, you might get a statute around, like, if surveillance pricing goes the way we think it might go in terms of an actual practice that we see a lot of in the world, that you could imagine. A statute that, again, gets litigated and played with and worked over time, that it could be like a really important kind of regulatory tool that people who are interested in antitrust or intellectual property might find engrossing. There was a, I think I saw a question, man, there's one over here.
Speaker 1 1:08:06
You can hear me. Oh, now we can I have a really simple question. I don't know why. When you guys were talking, I had like the image in my mind of me playing a video game where, basically you just have to eat things and then eventually eat other people and merge with them and become a bigger thing, and then you want to be the biggest thing that can't be eaten and merge with others. And then I was thinking how that has to do with power. And I was wondering if there was any standard or metric or barrier that comes into mind when you're thinking about the economic power that these mergers could potentially, I don't know, monopolize on, do you have like a bracket of like? Because I feel like, if you think about it, later on, when two or three things want to merge, it's too late. So what about the things that are getting to that point, the things that are starting to build up, the ones that are potentially have the capacity to build momentum eventually, great. Where is the standard, right?
Scott Hemphill 1:09:09
So there's, I mean, there's a lot in that question. One, just pulling out one strand of it, though, toward the end of of your remarks. One, I think issue that's on probably everybody's mind on the panel are people who think about and I trust is, what do you do if you sense a kind of start of a trend toward consolidation? You might have a relatively unconcentrated industry or market at first, and then they start to get rolled up, and maybe the first one isn't a big deal, or several of them doing at the same time, and all of a sudden you may find yourself in a consolidated market, but those initial transactions might not in themselves, raise the concerns that we canonically think as being sufficient to give rise to a claim Act claim. So I guess whoever wants to take this i. The merger guidelines have some material that take a pretty strong line on in sort of incipient concentration. There's some older precedent that seems to call that out as something that we are going to tackle. This might be a spot where the politics or power people and the economics people might not be in exactly the same place, but I don't know. Do any of y'all have? It's a hard question. I don't know if y'all
Daniel Francis 1:10:24
I'll just throw in the one sentence that it's really striking that the wording of our merger statute doesn't say the merge is illegal if the effect is substantially less than competition or tend to create a monopoly, says where the effect may be. And although that language has some complicated history around it does seem pretty clear that they were trying to reach incipient, or beginning practices that hadn't yet risen to the level of Sherman Act harms. They were trying to reach further into the zone that you're talking about. But how much further is a difficult
Scott Hemphill 1:10:52
question, so you're pro that guideline, then about incipient,
Daniel Francis 1:11:00
acknowledging that section seven says what it says, just making sure you're still that I'm not comfortable with that language in the 23 guidelines, no, the
Doha Mekki 1:11:10
sort of trend towards concentration issue is like a really, it's sticky in antitrust right now, there are folks who absolutely hate it as a sort of concern of antitrust, and there are people like me who see it in Supreme Court precedent that has not been explicitly overruled. I think in the Google search case, which I helped litigate and quarterback, we see a remedy about a very sizable monopoly that didn't really grow through acquisition, but did become an abusive monopoly. And I think, in my opinion, the remedy was unsatisfying. And I think many people have pointed out that maybe pivoting from that decision, we might put more emphasis on our merger law, right? There are other cases that for which I think we're expecting remedy decisions, like Google Ad Tech, where there's acquisitions at play and like the growth of power. But you know, if you don't like monopolies, you should probably be more muscular or assertive in your merger enforcement views,
Eric Posner 1:12:24
or just break them up, which is what they did in the old days. They would just take these big firms and break them up and and that was no problem. And that happens very rarely now, and it is kind of odd that both the sort of incipients rule and the break them up later. Rule, both of them have, have, have, you know, lost their effect. You think maybe one or the other should have, but not, not both. If we
Scott Hemphill 1:12:48
shrug about consolidation, then we should just shrug about deconsolidation. In terms of thinking about as being a right, is maybe time for one more you
Announcer 1:13:03
Hi. I was just wondering the entry antitrust laws are different in this country and outside the country. So sometimes they contradict. How do you maybe protect our companies from the EU or some and thrown in antitrust laws just to raise revenue, and sometimes we have to be bigger just to compete with the foreign companies. Otherwise,
Scott Hemphill 1:13:27
I think there's a robust, well, a nascent debate about how antitrust kind of intersects with trade. I think there's a long standing view that one might be very aggressive about producers in some other country, prevent it to the extent one can mergers for the benefit of your own consumers, where the other jurisdiction might have a different view. This is coming in, I think, coming into focus to the extent that there's a heightened interest right now, in kind of national champions as a strategy. This is an old idea, but of kind of renewed salience. And so one question is whether we think the best way, if you granted national champions, is an important way of engaging in, I don't know, great power competition, whether you think the better strategy is to dial down antitrust enforcement and thereby allow General Motors to flourish. I'm picking the example to be mean about it, I suppose, or whether, instead subjecting firms to vigorous competition or even limiting their ability to take over adjacent spaces is a more promising way to generate these giants that then sort of thrive on a world stage. I don't know if others have a reaction on that,
Doha Mekki 1:14:48
so I have a lot of discomfort with using antitrust to promote domestic companies, like there's to Scott's point sort of industrial policy. Tariffs and things like that that I think are more appropriately used to calibrate those like domestic economic interests. But I think one very big and significant departure that's worthy of a lot of study is we have an administration now that is very comfortable with an interventionist, very assertive executive branch to structure markets, often to favor US companies and geopolitically significant industries and sectors. So I'm thinking about chips, for example. You know that is not something that is not something I would have supported when I was at the antitrust division. I think it's ripe for abuse. But I guess we're all going to learn some things and see how how this all plays out.
Daniel Francis 1:15:54
Every business has a long list of reasons why the government should give it special favors, including, but not limited to favorable kid glove treatment under the antitrust laws. I think we do better by closing areas to that kind of thing, but reasonable minds differ.
Scott Hemphill 1:16:10
All right, please join me in thanking our panelists.
Announcer 1:16:18
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