Antitrust Without Competition

Competition is everywhere in antitrust. Courts, agencies, and scholars routinely insist that antitrust can, does, and should measure the legality of conduct by asking whether it has harmed or promoted “competition.” The idea that competition is, without further definition, a coherent value that can be increased or reduced—and used to guide the development and application of antitrust rules—has dominated doctrine for a century, and is deployed freely by judges, enforcers, and writers across the political spectrum. This does more harm than good, and it should stop. There is no single value or quantity, in economics or antitrust law, that competition just is. Competition has long been essentialized, in both disciplines, in countless inconsistent ways. And its enduring dominance in antitrust doctrine causes real harms: indeterminacy and confusion, because the purported criterion cannot resolve concrete cases; utopianism, because it conceals antitrust’s fundamental need for hard choices among desirable goals; and bluntness, because today’s courts respond to antitrust’s vague tests by erring in favor of defendants. Antitrust would be better off without competition as a purported orienting value or criterion. There are multiple meaningful and plausible evaluative criteria available to which doctrine might turn instead. One such measure, “harm-centric antitrust,” would orient antitrust to guard against welfare harms resulting from the unprivileged suppression of rival incentive, or rival ability, to meet demand. This is not the only option: there are plenty of other plausible orientations for the antitrust project. But the undefined “promotion of competition” is not among them. It is time to let it go.