These are interesting times. Promises to enforce laws as written and interpreted for decades may no longer do the political trick. Hence, even though the Democrats controlled Congress for a portion of the eight-year Obama administration, there was no meaningful proposal to re-write the antitrust laws to make big “bad” once again, to regulate the pricing of lawful monopolists, or to use the antitrust laws as a tool for social and economic engineering, harkening back to the trust-busting days of old. But the 2018 midterm elections beckon, and Congressional Democrats do not want to miss the populist wave a second time. So, on July 24th, they unveiled a suite of new legislative proposals, collectively called “A Better Deal,” which includes a statement titled “Cracking down on Corporate Monopolies and the Abuse of Economic and Political Power” (the Statement).¹ Certainly these new statutes, which are quite radical in terms of reversing decades of antitrust jurisprudence, are not proposals for today. But they are markers for future political battles and promises, and for that reason should be taken seriously and tracked.

'A Better Deal' for Antitrust

The Statement argues that lax enforcement of the antitrust laws have allowed large corporations to get larger, leading to higher daily expenses such as airfare, cable, eyewear, food and beverage, reduced wages and bargaining power for workers, and concentrated political power of large corporations. The Statement declares an intent to reframe the antitrust laws to “ensure that the economic freedom of all Americans—consumers, workers, and small businesses—come before big corporations that are getting even bigger.” By ascribing such lofty goals to the antitrust laws, the Statement marks a substantial departure from the long-standing consensus regarding the role of the antitrust laws—protecting the competitive process for the promotion of consumer welfare—but otherwise not picking winners and losers in the rough and tumble of the marketplace.

The Statement makes three specific proposals. First, it lays out new standards to limit large mergers that unfairly consolidate corporate power. One aspect of the new standards expands the beneficiary of the antitrust laws' protection from consumers to workers, suppliers, and competitors. In scrutinizing mergers, antitrust regulators would be required to take on a broader, longer-term view that considers—beyond short-term effects on price and output—whether mergers “reduce wages, cut jobs, lower product quality, limit access to services, stifle innovation, or hinder the ability of small businesses and entrepreneurs to compete.” Another aspect of the new standards endorses stronger presumptions that market concentration can be anticompetitive. Under this standard, “the largest mergers would be presumed to be anticompetitive and would be blocked unless the merging firms could establish the benefits of the deal.” The upshot of this presumption is to shift the burden of proving the competitive effect of consolidation from antitrust regulators to the merging firms.

Second, the Statement proposes requiring frequent, independent post-merger reviews of businesses that were allowed to merge subject to terms and conditions. The purpose is to monitor whether the terms and conditions the merged companies agreed to are being met. If they are not, regulators would be empowered and required to take corrective measures against the companies.