From the Economic Times:
The European Unionâ€™s antitrust agency is becoming more influential just as its US counterparts have grown more cautious and inactive, experts say. The European Commissionâ€™s recent success in forcing Microsoft to carry out antitrust sanctions underscores the differences, and academic researchers say the US is also hanging back in merger challenges. That makes Brussels, more than Washington, the place where companies must go to get their deal through and where companies must ready themselves against possible antitrust action. It also means competition agencies around the world look to Brussels.
“Influential” v. “cautious” and “inactive.” I get it. The implication is that EU antitrust enforcement is good and US enforcement is bad. The proof? One is allegedly more interventionist than the other. As a general matter, I do not find “more is better” arguments (see, e.g., here) causally linking agency activity to the quality of antitrust policy to be very persuasive. All of these claims should be taken with a grain of salt or two. It is one thing to make observations about trends in public antitrust enforcement over time. This exercise can be quite useful for addressing a number of questions or motivating a discussion of various issues. For example, the news item excerpted above cites to Baker & Shapiro’s recent article on merger enforcement which provides some evidence that federal merger enforcement is down (largely at the DOJ) and that private practitioners have noticed. Baker & Shapiro use this empirical observation as a jumping off point to discuss the structural presumption, burdens of production and persuasion, and to offer a critique of some recent decisions which (in their view) too readily accept entry and expansion defenses.
All of this can be quite productive in terms of generating dialogue concerning potential improvements in antitrust policy. However, it is quite another thing to assert that such data are capable of establishing a causal link between enforcement activity level and the “quality” of antitrust enforcement and/or consumer welfare. I should be incredibly clear here: I do not read Baker & Shapiro to be claiming to have demonstrated such a link empirically (though it is clear from the article that they believe more enforcement would be a good thing) and am not making this point in response to their article. Rather, I am responding to appeals to evidence on activity levels alone to suggest that “more” or “less” enforcement would bring about positive changes for consumers. Maybe such a link would be useful if we were talking about dramatic changes in the rate of enforcement (say, abruptly plummeting to zero or increasing tenfold).
But one should be very cautious about making inferences about consumer welfare from small changes in aggregate enforcement data or anecdotal evidence from a handful of cases. I offer this word of caution in the spirit of the current season when these types of claims are quite popular with the politicians and journalists: while it may be true that the most active antitrust agency is the most influential for a number of reasons, there is simply no theoretical or empirical basis to suggest that the most active agency produces the greatest benefits for consumers.