Antitrust Enforcement in the Obama Administration's First Term

November 5, 2013

During his presidential campaign, Sen. Barack Obama criticized sharply the lax antitrust law enforcement record of the George W. Bush administration. Subsequently, his first assistant attorney general for antitrust even went so far as to suggest that the Great Recession was, at least in part, caused by federal antitrust policy failures during the previous eight years, say William F. Shughart II, research director and senior fellow at The Independent Institute, and Diana Thomas, an assistant professor of economics in the Department of Economics and Finance, Jon M. Huntsman School of Business, Utah State University.

Shughart and Thomas set out to investigate how and in what ways antitrust enforcement has changed since President Obama took office in 2009.

  • They review four recent antitrust cases and the behavioral remedies that were imposed on the defendants in those matters in detail.
  • They find that the Obama administration has been significantly more active in enforcing the antitrust laws with respect to proposed mergers than his two predecessors in the White House had been.
  • In addition, the Federal Trade Commission, together with the Department of Justice, withdrew a thoughtful report on the enforcement of Section 2 of the Sherman Act and issued new merger guidelines and a new merger policy remedy guide, all of which have moved antitrust law enforcement away from traditional structural remedies in favor of very intrusive behavioral remedies in an unprecedented fashion.
  • That policy shift has further transformed antitrust law enforcers into regulatory agencies, a mission for which they are not well-suited, resulting in the Department of Justice and Federal Trade Commission being more vulnerable to rent seeking.

Source: William F. Shughart II and Diana W. Thomas, "Antitrust Enforcement in the Obama Administration's First Term: A Regulatory Approach," Cato Institute, October 22, 2013.

 

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