Antitrust Abandonment

Abstract

This Article identifies the problem of “antitrust abandonment”: a pattern of long-term, unexplained disuse of antitrust-like enforcement powers held by industry regulators. Much of antitrust scholarship focuses on the primary federal enforcers, the Federal Trade Commission (FTC) and the Department of Justice (DOJ). This Article looks instead at several other federal agencies that hold statutory antitrust powers in specific industries, some exclusively. It finds a striking pattern in which these regulators rarely use their antitrust enforcement authority. The Article critically evaluates the track record of antitrust-like enforcement by three industry regulators—in ocean shipping, rail, and meatpacking— using primary research, historical accounts of agency (in)action over time, and the perceptions of scholars, policymakers, and the agencies themselves of their competition oversight. The Article finds an alarming result: these agencies have brought only a handful of antitrust claims, sometimes none at all, over the span of decades, and, in one case, over a century. The Article argues that this antitrust abandonment is a problem, because it leaves unintended gaps in competition enforcement across pockets of highly concentrated, economically important industries. The Article then considers how to cure and prevent antitrust abandonment. It calls for an immediate shift in policymaker expectations, away from the recent push for regulators to use their long-dormant antitrust powers, and toward the empowerment of expert antitrust enforcers—the FTC and the DOJ—to act in abandoned spaces. Achieving this change will require Congress to repeal arcane legislative exceptions, as well as more subtle shifts in agency perceptions of the need for antitrust enforcement in regulated industries.