This week we discuss Tim Wu’s “hipster antitrust” monograph, The Curse of Bigness (Columbia Global Reports, 2018). Both the author and the book are a cornerstone of what has been called the “New Brandesian Movement”.
With this in mind, here are a few suggested questions that could drive our discussion forward. (1) What is the New Brandesian Movement? (2) Is the New Brandesian Movement simply translating the ideas espoused by Judge Brandeis at the beginning of the 20th century into the context of concentrated tech markets of the beginning of the 21st century (i.e. are the same arguments being made against dominant digital platforms that had been made, mutatis mutandis, against e.g. Standard Oil one hundread years ago)? (3) What are the theories of harm Wu associates with market concentration and are they well fleshed out? (4) How does Wu propose we solve the purported problem of market concentration in the “new gilded age of capitalism”? (5) What is the role of antitrust for Wu in a liberal market economy? (6) Is it possible to think of a “citizen welfare” standard that takes into account political power, as opposed to, or in conjunction with, the more typical “consumer welfare” standard used by antitrust authorities?
Obviously, if your comments go in a different direction please do not hesitate to share.
Please upload your comments at least two days before the scheduled meeting date to allow others enough time to read and react.
Meeting date, time, and Place:
Discussant: Lazar
Participants: Grigoris, Nikita, Sangyun, Grace, Mladen, and Lazar
Book length: 154 pages
Difficulty: Easy
New Antitrust 
Lazar, thanks for inviting us — great proposal indeed.
Wu effectively wrapped up the current US antitrust debate, namely a division to technical and political antitrust[1]. He fervently advocates a political approach to antitrust as the prevailing consumer welfare principle developed by the Chicago School is narrow, focusing only on one type of anticompetitive harm, i.e. higher prices to consumers (p.17 the Curse of Bigness). He asserts that the consumer welfare standard simplifies and overlooks the ever-increasing inequality between the rich and poor and that big companies exert undue political influence. Hence, Wu`s the Curse of Bigness puts forward the idea of the reemergence of Brandesian school, so called NeoBrandesian movement which focuses on the attainment of social goals as opposed to the rigid application of consumer welfare test which proved to be socially insensitive. As proponents of NeoBrandesian school claim (see Kahn The New Brandeis Movement: America’s Antimonopoly Debate 2018) antimonopoly debate is a key tool and philosophical underpinning for structuring society on a democratic foundation.
Neo Brandesian`s attempt to shift away competition law paradigm from purely technical, expert like to more socially oriented is fair enough. As Kahn points out: ‘’the fixation on efficiency, in turn, has largely blinded enforcers to many of the harms caused by undue market power, including on workers, suppliers, innovators, and independent entrepreneurs’’. One could hardly disagree on this, but still it is debatable to what extent (if at all) antitrust can remedy these social deviations.
The main points of Wu are essentially as described by Hovenkamp: (Is Antitrust’s Consumer Welfare Principle Imperiled? 2019, p.3), ‘’ that antitrust policy should be driven more by political theory rather than economics’’. This is because unregulated monopolists undermine the ‘’very nature of democracy, and the conditions under which its citizens would live‘’ (p.33 the Curse of Bigness). Instead of the vague notion of consumer welfare (see for instance Kirkwood and Lande 2008 The Chicago School’s Foundation is Flawed, Antitrust Protects Consumers) the “protection of competition” test is focused on protection of a process, as opposed to the maximization of a value. It is based on the premise that the legal system often does better trying to protect a process than the far more ambitious goal of maximizing an abstract value like welfare or wealth (p.136 the Curse of Bigness).
In a nutshell, he has two arguments. The first one is that the ’Curse of Bigness’ undermines democratic grounds of the system which in turn leads to undesirable social outcomes and the second is proposed shift from consumer welfare standard to protection of competition standard.
As for the first point, he does not, however, elaborate much on the role of antitrust in a society and to what extent all the woes he described in the introduction arise precisely from (under)enforcement of antitrust rules. Just like technicians tend to solve all antitrust concerns by resorting to only viable ‘natural solution’ i.e. lower prices and variety/better quality products, the NeoBrandesians view that the society would be more democratic if we curb monopoly is far reaching. Problems he describes (poor social conditions of workers, ratio of capital/wages) are broader, more systemic ones. I struggle to see the exact cause/effect relationship between weak antitrust and undermined social values. For instance, Stiglitz[2] and Piketty see antitrust rules just as one aspect of the wider social policy/redistribution of wealth debate. It would be very difficult to commensurate an explicit relation between failures of antitrust and structural, intrinsic problems of the society. After all, haven’t we witnessed the greatest economic growth and technological progress in history thanks to the same companies we now want to limit/break up? Surprisingly, Wu entirely neglects possible counter arguments coming from technical pro status quo side. For instance, he does not mention at all that (see ROBERT D. ATKINSON & MICHAEL LIND Big Is Beautiful: Debunking the Mythology of Small Business), large corporations can be more “progressive” than small businesses are in terms of higher-wage jobs, better workplace benefits, lower prices, and greater workplace diversity, safety, and stability[3].
After indisputable recurring cycle of economic growth, what went wrong in the meantime is the overarching feeling that the system is not fair (see for instance Zingales). If as Eric Posner says: ‘’markets without competition are not markets at all, just as a one-party state cannot be a democracy’’, is it justified to say that the democracy faded away as a result of the distorted competitive process itself? I doubt that system would automatically be considered more fair by majority, if we would have several small companies instead. What is actually needed to achieve desirable social goals is wider social consensus of elites, let alone the antitrust battles against bigness.
From a strictly legal point of view (though I agree with Lazar that antitrust is inherently political), Wu fails to offer any proposal how the courts/agencies will actually implement such undefined ideologically (frankly, even typical ‘economic notions’ like efficiency are ideological) driven concepts.
My impression is that if we alter the consumer welfare standard with another broad catch all legal test such as ‘’protection of competition’’ I am afraid we are opening a great leeway for interpretation with inconsistent outcomes.
According to Hovenkamp: ‘’the main critique to Neo-Brandesian movement is that if we abandon consumer welfare approach, we cannot test the assumption that individuals in our society would really prefer a world characterized by higher prices, but smaller firms. Everyone in society is a consumer and consumers vote mainly with their purchasing choices. The Neo-Brandeisians still face the formidable task of providing evidence that most citizens believe they would be better off in a world of higher cost smaller firms selling at higher prices, their market behavior notwithstanding. One problem is that these costs have never been calculated, and another is that they have never been effectively communicated. Further, the neo-Brandeis movement has not provided much in the way of a calculus for determining how these goals should be applied to specific practices, other than highly general ones of the nature that Amazon should be regulated in some fashion[4]’’. Hovenkamp`s argument reminds me of a well-known premise of ‘sovereignty of consumers’ by Mises (The Anti-Capitalistic mentality, 1956) meaning that if you are buying cheap products, it is a win-win situation and ‘’a sovereign consumer’’ ultimately decides who is going to win and who to be expelled from the market. As consumers are homo economicus and rational per se, of course they will not choose higher priced products.
Nevertheless, I reckon that consumer choice is rather an illusion if we don’t look at the social welfare. If the one is worse off as an employee in terms of wages (as Lawrence Mishel, Elise Gould, and Josh Bivens noted there was no real increase in wages from 1979 to 2007 for the US middle class comprising majority of population[5]), conditions of work, low chances of upward social mobility (as Michael Hout concluded in the most recent research [6]) how the one can be better off as a consumer except in purely theoretical books-related terms? Even if the one extracts consumer surplus and enjoys the variety of consumer choice on the one hand and loses in all other above-mentioned aspects, what kind of ‘’consumer choice’’ the one actually has? We have to presuppose that consumers are at the same time employees as Piketty notes that about 70% of US national income is labor income and only 30% capital income[7]. Consumer welfare (OECD Glossary[8]) refers: ‘’to the individual benefits derived from the consumption of goods and services. In theory, individual welfare is defined by an individual’s own assessment of his/her satisfaction, given prices and income’’. If the income for the majority remains flat, can we say that it is utterly useless to win in this exchange?
[1] See Hovenkamp, Is Antitrust’s Consumer Welfare Principle Imperiled, 2019? p.3.
[2] See https://www.bloomberg.com/news/articles/2019-04-24/stiglitz-wants-to-tackle-u-s-inequality-with-antitrust-rules.
[3] https://www.nationalreview.com/magazine/2017/10/02/large-corporations-good-for-society/.
[4] See Hovenkamp, Is Antitrust’s Consumer Welfare Principle Imperiled, 2019? p.3.
[5] Economic Policy Institute 2015 https://www.epi.org/publication/charting-wage-stagnation/.
[6] Michael Hout https://www.pnas.org/content/115/38/9527, 2018.
[7] DISTRIBUTIONAL NATIONAL ACCOUNTS: METHODS AND ESTIMATES FOR THE UNITED STATES∗ Thomas Piketty Emmanuel Saez Gabriel Zucman September 25, 2017, p. 8.
[8] OECD glossary https://stats.oecd.org/glossary/detail.asp?ID=3177.
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1. Thank you very much Lazar for an invitation to this wonderful group. Also I appreciate all for sharing such brilliant and thought provoking ideas on that book and antitrust worth dwelling on. As almost all important points, in my think, have already well discussed by you below, I here make just few comments and questions that I would like to share with you.
2. My question centers on whether Wu’s diagnosis and prescriptions to U.S. economy are correct or well established. In the last chapter, Wu floats some series of solutions to restore the highly concentrated markets (and perhaps to rescue democracy), i.e. broader and tougher merger standards, more ‘democratic’ transparency of the merger process, more big cases, breakups, market investigations, the goal shift from ‘consumer welfare’ to ‘protection of competition’. Among all, to my understanding, the most important two may be the ‘breakups’ and the goal shift, and those suggestion seem based on his perception that ‘the narrow consumer welfare standard’ has made US Antitrust enforcement withered, unfairly, and that ‘excessive concentration of economic power will breed antidemocratic political pressures.’ (Wu, 54, as quoted in Lazar’s 3rd comments)
3. However, though his argument sounds very nice and sympathetic to me, it seems somewhat failing to suggest any plausible causal (let alone functional) relation between the failures of antitrust and structural problems of the society, as Mladen already rightly pointed. Counter-proofs can be easily found in the real world, as Leon well illustrated in his comments. As Lazar said in his 2nd comment, we should be cautious in drawing such “parallels.” In addition, as to the ‘goal shift’, it is not clear to me that people, especially citizens in the U.S., would prefer a world characterized by higher prices, but smaller (many) firms, as pointed by Prof.Hovenkamp (quoted in Malden’s comment). Moreover, it doesn’t seem easy at all to overcome the long-lasting concern that such shift may lead to the protection of (less efficient) rivals, under the very strict SCOTUS’s jurisdiction. I thought that it would’ve been much better if Wu had been provided more sufficient explanations on the concept of ‘competitive process’ as an alternative to ‘consumer welfare standard’ as Mel also pointed to that spirit (if I understand correctly).
4. In my view, as one living in Korea, where the dominant tech firms are not necessarily FAANG (Facebook, Apple, Amazon, Netflix, Google), but Korean (and multinational) companies such as Samsung, LG, and NHN, and where all of them should face dog-eat-dog competition from all others, Wu’s diagnosis perhaps could have been more correct if he had recognized the tech market from a global perspective. Although it can seem to him that U.S. tech giants are dominating the whole world (including U.S.) and such dominance could last forever without any meaningful competition restraints from other current/potential firms, it’s not necessarily true in a global, in particular (North-East) Asian, perspective. Several big tech giants (regardless of their national backgrounds) compete (or are ready to compete) with each other in global markets and such competitive restrains push the firms to innovate and provide better services (setting aside the privacy and data issues). The variety of brilliant services and products Google offers for free are good proofs. As Mladen rightly pointed, it seems to me that Wu (somewhat deliberately) neglects possible counter argument that may come from the technical pro status quo side.
5. I agree with many of points Wu made such as ‘democracy is in trouble’, ‘concentration can negatively affect the income and wealth inequality’, and ‘consumer welfare should not be a single goal of Antitrust rules’. However, as many of you already pointed out, I am highly skeptical of his claim that prudent enforcement has caused (or can cause) the risk of democracy and inequality. The role of Antitrust, as far as I know, is to prevent an inefficient dominant firm from remaining in the market by way of excluding other competitors (in the case of Sherman Act Sec.2). If dominant firms are efficient and consumers are better off, no place remains for Antitrust to intervene.
6. In my think, Wu should have put more focus on the ‘vertical’ aspect of competition rather than horizontal competition and cast some questions why U.S. Antitrust rules don’t provide tools to tackle ‘vertical abuse’ such as exploitative abuse, unfair trading practices, abuse of economic dependence or superior bargaining positions, and what are the ramifications of such an absence.
7. Whilst those vertical abuse concerns are not addressed but neglected by U.S. Antitrust rules, many European and Asian states have redressed such issues within their competition law frameworks. For example, in Korea, albeit debatable, those ‘vertical abuse’ rules have contributed to easing and reducing the political pressure from extremists demonizing large conglomerates such as Samsung, LG, Hyundai, as foes of civil society. Rather than broken up, those conglomerates have been grown through supports from the government’s industrial policy. In addition to that industrial policy, the government has used its ‘vertical competition tools’ to prevent any unfair profit distribution along the value chains the conglomerates lead. I believe that the profits shared in a not-unfair-way have also contributed to the increase in citizens welfare. As far as I know, Korea’s experience is not unique at all. Same strategies have adopted by Japan and Germany in which vertical abuse rules are enshrined within their competition law frameworks.
8. Although I really love Wu’s writing and sincerely thank him for devising the concept of net neutrality (so that I can watch YouTube everyday nights without worrying anything), I am a bit skeptical if his diagnosis and prescriptions to U.S. economy and society are correct or practical. May God bless America… (sorry for the silly joke)
9. (I must have made many typos and mistakes that perhaps make you feel stressed. In that case, please accept my apologies (of course I didn’t mean it at all) and, readers, please bear with my poor English writing…)
10. (I don’t like Samsung Galaxy, but love iPhone)
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In this first comment, I will attempt to answer my first question, i.e. What is the “New Brandesian School” and which ideas does it champion? At the same time, this comment will be a sort of summary/interpretation of the book which I hope will serve to propel our discussion on Thursday (do let me know if you don’t agree with my interpretation!)
What is neo-brandesianism? According to Tim Wu, the growth of private corporate power must be controlled[1]. Uncontrolled private growth leads to nationalism, populism, and fascism, he says. Indeed, “as [the first Gilded Age] has taught us, extreme economic concentration yields gross inequality and material suffering, feeding an appetite, for nationalistic and extremist leadership”.
The answer is to be found in less economic concentration, i.e. more economic competition. Antitrust has an important role to play, as it curbs private monopoly power. But, in order to achieve this, antitrust law, according to Wu, must be revitalized: break-ups must be reinstituted as a plausible remedy, and a tougher overall stance must be adopted towards private economic power[2]. In addition, antitrust law should cease to be hung up on the notion of consumer welfare, and explore other avenues through which the concentration of private corporate power may cause harm such as, notably, though unbridled influence on politics and the ensuing damage to democratic fiber[3]. In fact, at the center of Wu’s monograph is precisely the idea that checks on corporate power constitute a prerequisite for a functioning democracy[4].
Wu is a confessed neo-brandesian[5]. For Wu, as for Brandeis, “bigness and concentration [are] inseparable from the very nature of democracy, and the conditions under which its citizens would live”[6]. Economic decentralization is in their view not only indispensable to a thriving democracy, but in fact constitutes a fundamental pillar of a dignified and humane society. In this sense, an economy composed of smaller firms is not only expected to be conducive to democracy, but also to higher worker welfare, human autonomy, self-development, and community[7].
Bigness, or rather concentrated power, therefore, is always bad[8]. As he later spells out, “the more concentrated the industry, the more corrupted we can expect the political process to be [where by] corrupted we mean a political system that does not serve its stated goals -service of the public’s interest — but instead favors a few groups at the expense of the general public”[9]. Hence, while the corrosive influence of monopolies may have an economic origin — its effects largely surpass the economic sphere and permeate society at large.
[1] Wu, 2018.
[2] Ibid: 18.
[3] Ibid.
[4] Ibid: 19.
[5] Ibid: 33.
[6] Ibid.
[7] Ibid:40–42.
[8] Ibid: 43.
[9] Ibid: 58.
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My second comment has to do more with the facts as presented by WU.
First, would stakeholders really be better off in a less concentrated market, and how can one be so sure ? Would workers really be better off if Google had five competitors? It is safe to assume that the owners of such hypothetical undertakings would (as they would be able reap profits on a market that was previously off-limits to them) — but is it too far-fetched to assume that democracy would be more vibrant, and workers more dignified? After all, is Google, a monopolist, not consistently ranked as a top employer? Which engineer or computer scientist would refuse an offer from them today? Is the question related to size, or accountability? Admittedly, there may well be a relationship of inverse proportionality between the two — but how tenuous is that relationship? Can the benefits of “bigness” not be channeled towards social ends? Perhaps the answer to the conundrum lies in the fact that this would require close regulation of large corporations — which runs counter to the ideas of economic freedom that lie at the heart of liberal democracy. But is antitrust itself not a form of regulation?
Further, I wonder whether the issue is really one of size, or of ownership? i.e. what if Google were a public monopoly held directly accountable to the electorate?
Second, I am a bit skeptical of the uncritical acceptance of the correlation between fascism and market concentration. A deeper probe into such questions is obviously beyond the scope of this comment (and admittedly, of Wu’s book!), but one should perhaps be more cautious in drawing such parallels. Some nuance is required, I think. Indeed, and contrary to what it may seem reading Wu, some authors disagree with the notion that the concentration of Germany industry lead to the rise of the Third Reich. See, for instance, Crane:
“ it does not necessarily follow that Farben’s monopolistic position in the German chemical industry is causally related to the rise of fascism — or that monopoly enabled Nazism. Two matters should give us pause before making such an inference. […] Though gigantic, Farben remained smaller than three American industrial concerns — General Motors, U.S. Steel, and Standard Oil. Nor was Farben’s wartime market power exceptional.”
In conclusion, I wonder whether Wu is is jumping to conclusions?
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My third comment is a bit more philosophical, so please bear with me!
Wu writes that “over the last few decades, the very idea of political role has all but disappeared, as antitrust’s focus has become exclusively economic”[1]. Wu thus laments that antitrust enforcement does not take into account political considerations, such as the influence of private corporate power on democracy. Rather, it focuses on a very narrow and limited conception of economic, or “consumer”, welfare. Antitrust enforcement, he argues, should be undergirded, as Pitofsky put it, by the notion that “excessive concentration of economic power will breed antidemocratic political pressures”.
Hence, while “economic considerations are what should govern any individual case […] the broad tenor of antitrust enforcement — the broader goals of enforcement — should be animated by a concern that too much concentrated economic power will translate into too much political power”[2].
But to what extent can the trajectory of antitrust be modified within the context current politico-economic paradigm? Does modern antitrust rest on certain assumptions, principles, and dogma that have become naturalized, i.e. ingrained in the social, political, and economic fabric? Would a dash of the pen suffice to de-naturalize them, and ultimately make antitrust more in line with the democratic rationale proposed by Neo-Brandesians? What Wu perhaps underplays, or ignores, is the extent to which modern antitrust is a logical and coherent reflection of the neoliberal creed — a political ideology that strikes at the core of some of the key social and philosophical concepts he invokes, such as, for e.g., democracy, community, work (and workers’ rights), equality, as well as the tension between private vs. public power. In sum, therefore, alterations of the current model focused on a narrow consumer welfare may not come easy: they may run into deeply rooted political, philosophical, and moral assumptions about how things ought to be. A deeper overhaul may be required.
[1] Ibid: 54.
[2] Ibid: 55.
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And finally, a political perspective that touches upon the role of antitrust in ensuring the continuation of liberal capitalism (and perhaps also in legitimizing it).
Wu points out that in the 1912 US presidential election, antitrust law served to defuse popular discontent that threatened to back “radical” political programmes that rejected a competitive, decentralized economy, and which called for the nationalization of private monopolies[1].
Such discontent was borne of the political, economic, and social excesses associated with unrestrained private economic power. Against this backdrop, two Presidential candidates: Roosevelt, on the one hand, and socialist Debs, on the other, ran their campaigns on the promise to nationalize Trusts[2]. In stark contrast, Taft, the Republican, and Wilson, the Democrat, offered an alternative: to restore a competitive economy by fighting the trusts with the antitrust law and new regulations[3].
In line with this account, the 1912 US election in many ways relied on antitrust to restore faith in the liberal economic order, as it promised to assuage the pernicious effects arising from its contradictions. In doing so, it quelled the need of a broader, more far-reaching systemic overhaul — at least for as long as the antitrust watchdogs performed their mandates dutifully. It acted, in essence, as a crucial mechanism to justify, legitimize, stabilize, and ensure the continuity of the liberal market economy and, perhaps, even liberal democracy itself. As George Stigler wrote in 1952: “The dissolution of big business is […] a part of the program necessary to increase the support for a private, competitive enterprise economy, and reverse the drift toward government control”[4].
As Wu states, therefore, the 1912 US election was “one of the few elections in history where the public was clearly engaged with and voting on what kind of economic order they wished to live in”[5]. This reading of history reveals antitrust as a crucial piece of regulation in the context of a liberal market economy — a check to its inevitable contradictions, i.e. an economic system based on competition, but which inescapably results in monopoly. For Wu, economic competition is thus an end in itself: a guarantor against the pernicious effects of private monopoly on the democratic system, the economy, workers, and society at large. Under this interpretation, competition law serves to ensure that the process of competition is perpetual. Indeed, as Wu later clarifies, the standard to be applied in antitrust should be the “protection of competition” test, which focusses on protection of a process, as opposed to the maximization of a value[6].
For Wu, who sees corporate concentration as a threat to democracy, fascism is a possible, if not even likely, outcome of a highly monopolized economy. Thus, he writes, “Hitler’s rise and exercise of power were facilitated by the German Republic’s tolerance of monopolies in key industries”[7]. If not fascism, then communism or socialism are the likely candidates to take over a monopoly-ridden country. As Senator Estes Kefauver writes, with whom Wu seems to agree, “A point is eventually reached […] where the public steps in to take over when concentration and monopoly gain too much power. The taking over by the public through the government […] either results in a Fascist state or the nationalization of industries and thereafter a socialist or communist state”
[8].
[1] Ibid: 75.
[2] Ibid.
[3] Ibid.
[4] Ibid: 84.
[5] Ibid.
[6] Ibid: 136.
[7] Ibid: 80.
[8] Ibid: 81.
P.S. Thanks, Mel, for your comments. Perhaps above I address some of the issues you have raised, albeit indirectly. Anyway, it would be great to discuss further on Thursday if you can make it.
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Many thanks to Lazar for this great initiative. Permit me to jot down six points and I’m sorry for any lack of clarity or typos …
1. It’s true that Wu’s book is not written with a particularly high standard of academic rigor. For example, there is not much in the way of dialectics. On the other hand, his book is really an extended essay-pamphlet, and it’s not too surprising to see him accepting his own positions without too much self-criticism. In a sense, he re-tells a story that has been told seemingly many times, but he packages the story nicely and in a way that can easily be understood by a general audience.
2. As EUI researchers would note, there are some blind spots in his research. If monopoly — and the new econo-oligarchy — are bad for economic and political reasons, then it would be reasonable to conclude, as he does, that ‘protection of competition’ is part of the solution. But this seems similar to the rivalry-based protection of the ‘competitive process’ that commentators in Europe and Europe-conscious scholars in the U.S. have talked about for decades. It is probably asking too much to expect Wu to go deeply into ordoliberal issues (his brief references are Wikipedia-like blurbs), but it would have been helpful for him at least to consider a body of work by people such as Fox and Gerber (I’m not calling them ordoliberals (to avoid a misunderstanding: DG is not really an ordoliberal in the strict sense of the term – apologies for the nested parentheses), I’m just suggesting that their work would have been relevant to the book), both of whom have discussed the importance of rivalry and market openness and the folly of the ‘output’ model of antitrust. Instead, Wu refers to a 1986 judgment written by Richard Posner in which Posner refers to the ‘competitive process’. (p. 138.) That is not the same as the ‘competitive process’ that we talk about habitually in Europe. Posner’s remark may even lead back to the kind of Panglossianism that Wu criticizes several times in the book? Anyhow, the European ‘competitive process’ concept sits there conveniently for Wu to latch onto, but he seems rather oblivious to it.
3. Despite my criticisms (and Lazar raises several persuasive points too), I think Wu’s message is an important part of the discussion in the U.S. I basically share his view of the U.S. courts and of their occasionally ideological march toward law that systematically seems to line up quite well with the interests of big business. This is a problem that might only get worse going forward, at least within the U.S.
4. On the link between concentration and fascism/totalitarianism, Lazar raises a fair point: let’s not just take it for granted. I have not read Crane’s article, and maybe his case study is a good one. Nevertheless — and this may be debatable — it seems to me that the weight of opinion is that, in Germany and Japan, it was pretty toxic for heavy industry and the State (including its military wing) to be sleeping together. Here is a timid hypothesis: large, heavy industry is not hard-wired to favor fascitarianism (if you will). Rather, it is hard-wired (i) to be opportunistic, and (ii) not to have a moral alignment (i.e., big industry has no conscience). These features of opportunism and conscience-less-ness (though one could add others) make big business potentially dangerous if left unchecked. If this (populist? then so be it) fear has some validity, then — certainly, a concentrated economy is not predestined to become, well, fascitarian — but when certain diabolical windows of opportunity open up, concentrated industries are in a better position, compared to more fragmented industries, to support fascitarian actors who themselves act opportunistically. The foregoing comments are not inconsistent with the observation that, given a different configuration of conditions and opportunity structures, big business would not be a factor that feeds illiberalism. Personally, I much prefer the abuse-of-dominance standard to the dominance-is-illegal standard. But given the state of democratic institutions around the world today, maybe it is best to be on one’s guard. I do think that merger control has sometimes been applied too timidly, and that this has had some unfortunate consequences in the aggregate.
5. Notwithstanding what I just wrote in (4), the subject of the relationship between economic policies, market structure and democracy is huge and we are humble antitrust lawyers. Obviously, economic inequality is a subject that involves not just how competition law is defined and applied but how a range of polices are defined and applied such as, among others, tax-and-spend policies. So a full treatment of the discussion would have to be inter-disciplinary — which is another reason why these issues are vexing for policy makers and decision makers and, I suppose, for us. Good luck to anyone tackling the subject in his or her thesis …
6. I would certainly share the point Lazar raises about the ‘neoliberal creed’. As a microcosm – in the legal world – of how deeply the creed is entrenched in the American psyche, recall that five Justices in addition to Scalia signed on to the majority opinion in Trinko, including S. Breyer and R.B. Ginsburg. (Stevens, Souter and Thomas concurred in the result, I think.)
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