The Yale Law Journal

May 2018

Antitrust and Deregulation

Antitrust Law

abstract. Because regulation works alongside antitrust law to govern market structure and economic conduct in the United States, deregulatory cycles can create gaps in competition enforcement. Antitrust is sometimes portrayed as just another form of government intervention that a deregulatory administration should also diminish. This Feature argues that policy makers should resist that political logic. Instead, antitrust should become stronger as regulation becomes weaker. Antitrust as a countercyclical force to deregulation will most directly help to protect consumers from enforcement gaps that result as competition-related rules recede. But antitrust enforcement in deregulating markets can also help to demonstrate where antitrust can govern markets more effectively and efficiently than regulation; it can provide the federal courts with an opportunity to clarify recent Supreme Court decisions on the boundary between antitrust and regulation; and it can better inform ongoing policy debates about the effectiveness of antitrust by providing a more accurate view of what antitrust enforcement can accomplish with its existing legal and analytic framework. Not only is each of these benefits of countercyclical antitrust enforcement important in its own right, but together they can lead to better policy choices between antitrust and regulatory solutions as political cycles change over time.

author. Professor of Law, Georgetown University; Partner, Davis Polk & Wardwell LLP. The author previously served as Administrator of the White House Office of Information and Regulatory Affairs and as Director of the Federal Trade Commission’s Bureau of Economics. The author is grateful to Jonathan Sallet, Scott Hemphill, Catherine Waddams, Erik Herron, workshop participants at the University of East Anglia, and participants in the conference on “Unlocking the Promise of Antitrust Enforcement” at American University for helpful comments.