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127 U. Pa. L. Rev. 1051 (1978-1979)
Political Content of Antitrust

handle is hein.journals/pnlr127 and id is 1065 raw text is: 1979]

THE POLITICAL CONTENT OF ANTITRUST
ROBERT PITOFSKY t
Although the political forces that produced the major antitrust
statutes-in 1890, 1914, 1936, and 1950-varied widely, those statutes
once enacted have almost always been enforced and interpreted so
that economic considerations were paramount. The issue among
most serious people has never been whether non-economic considera-
tions should outweigh significant long-term economies of scale, but
rather whether they had any role to play at all, and if so, how they
should be defined and measured.1
There probably has never been a period comparable to the last
decade, however, when antitrust economists and lawyers have had
such success in persuading the courts to adopt an exclusively eco-
nomic approach to antitrust questions. In this paper, I will urge
a different view. It is bad history, bad policy, and bad law to ex-
clude certain political values in interpreting the antitrust laws. By
political values, I mean, first, a fear that excessive concentration of
economic power will breed antidemocratic political pressures, and
second, a desire to enhance individual and business freedom by
reducing the range within which private discretion by a few in the
economic sphere controls the welfare of all. A third and overrid-
ing political concern is that if the free-market sector of the economy
is allowed to develop under antitrust rules that are blind to all but
economic concerns, the likely result will be an economy so domi-
nated by a few corporate giants that it will be impossible for the
state not to play a more intrusive role in economic affairs.
This view is not at odds with the central beliefs of both the
Chicago and Harvard schools that the major goals of antitrust
relate to economic efficiency-to avoid the allocative inefficiencies of
monopoly power, encourage efficiency and progressiveness in the
use of resources, and perhaps, on fairness grounds, to maintain price
close to cost in order to minimize unnecessary and undesirable
accumulations of private wealth.2 Because interpretations that ex-
f Professor of Law, Georgetown University. Subsequent to the preparation and
submission of this paper, the author was appointed a commissioner of the Federal
Trade Commission.
1 See, e.g., Blake & Jones, The Goals of Antitrust: A Dialogue on Policy, 65
CoLum. L. RBv. 377-400, 422-66 (1965); Elzinga, The Goals of Antitrust: Other
Than Competition and Efficiency, What Else Counts?, 125 U. PA. L. REv. 1191
(1977).
2 For a summary of the central attitudes, principles, and spokesmen of the
Chicago and Harvard schools, see Sullivan, Book Review, 75 CoLuM. L. REv.
(1051)

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