The Horizons of Antitrust

The goals of antitrust law were the subject of debate in the United States during the 2016 election campaign and thereafter. While consumer welfare and efficiency have become the lodestars of antitrust enforcement, other goals such as fostering jobs, combating inequality, limiting foreign control of domestic assets, containing political power, and preserving small businesses all have attracted renewed interest. This article explores the choices triggered by this debate: Whether and how antitrust enforcement should take these other goals into account; whether the United States should adopt a “net benefits” test in reviewing transactions, similar to the tests already adopted in other countries; which arms of government, such as the antitrust agencies and CFIUS, should have responsibility for implementing these other goals; and how conflicting goals should be prioritized. The article contrasts the law in the United States with approaches taken in other jurisdictions and presents proposals for change