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raising prices for consumers. Judge Robert Bork in his influential book The Antitrust Paradox found economic justifications for previously denounced behavior including small horizontal mergers, all vertical and conglomerate mergers, vertical price maintenance and market division agreements, tying arrangements, exclusive dealings and requirements contracts, “predatory” price cutting, and price “discrimination.” Bork also defended corporate “bigness” if it came about through internal growth or acceptable mergers. He also defended agreements between competitors on prices, territories, refusals to deal, and other “suppressions of rivalry” that are “ancillary” to some economic efficiency. The practical contribution of his work was

to put consumer welfare at the heart of competition law.®

Beyond antitrust injury, we are witnessing in today’s markets the use of economic power—often market and perhaps even monopoly power—to undermine democratic institutions and civil society. Practices such as Environmental, Social, and Governance (ESG) requirements on publicly traded corporations and their inclusion in business agreements, the so-called “de-banking” of industries and individuals, and the interference of large internet firms with democratic political discourse undermine liberal democracy, a truly open society, and, indeed, rule of law. Without rule of law, markets themselves will wither.’

Critical of the “social responsibility” agenda, Milton Friedman in his provocatively titled essay “The Social Responsibility of Business Is to Increase Its Profits” states,

[T]here is one and only one social responsibility of business—to use its resources and engage in activities designed to increase its profits so long as it stays in the rules of the game, which is to say, engages in open and free

competition, without deception or fraud.'®

For Friedman, market mechanisms, not political mechanisms, are the appropriate way to determine the allocation of scarce resources to alternative uses. Business managers appropriate shareholder wealth when they use corporate resources to further their personal political beliefs, even when pursuing what they consider a “socially responsible” or “moral” agenda. The business of American business is business, not ideology.

More broadly, there is less and less debate around the growth of monopoly rents throughout the U.S. economy. The current data strongly suggest that U.S. corporations are systematically earning far higher profits than they were 25 or 30 years ago. Combined with other evidence that large corporations are accounting for an increasing share of revenue and employment, it certainly appears that many large U.S. corporations are earning substantial incumbency rents, and have been doing so for at least 15 years, apart from during the depths of the Great Recession that began in 2008.

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While the explanations for this shift are not clear, what is particularly disturbing is the possibility that these rents are extracted at least in part through regulatory capture—which can function as a bar to entrance for new competitors. In addition, the sheer cost of compliance with regulation favors large firms, which can more efficiently spread the cost of regulation over a larger revenue base and have the resources to invest in sophisticated government relations. The FTC must consider, therefore, the role of government itself in maintaining market concentration in areas ranging from pharmaceuticals and healthcare to avionics, banking, and real estate brokerage.

Beyond undermining small businesses and reducing their salubrious moral effect on American civil society, concentration of economic power facilitates collusion between government and private actors, undermining the rule of law. The continued emergence of evidence documenting collusion—between the Big Tech internet platforms and the Biden White House and administrative agencies—to censor criticism, scientific fact, and uncomfortable political truths demonstrates this unfortunate development.

But, there are some caveats. First, the FTC lacks the power to revisit developments in antitrust laws, which have brought an invaluable rigor to the antitrust law—matters such as analyzing vertical integration, for example. Nor should it. Second, the FTC’s recent rescinding of its 2015 Policy Statement was undoubtedly ill-considered." Of course, the consumer welfare standard must guide FTC action, but, in appropriate situations and with strong evidence, this standard must be expanded to include more factors than just price. Further, a similar standard of proof used to establish that a practice challenged by the Commission causes harm to competition must also apply in demonstrating the efficiencies that justify the practices.

President Harry Truman reportedly made the famous quip, “Give me a onehanded economist. All my economists say ‘on the one hand...’, then ‘but on the other.” When it comes to some of the more vexing issues in antitrust regulation, the conservative movement is in the same predicament. Many wish to preserve the productivity and efficiency focus of an economic-based consumer welfare standard approach to antitrust enforcements; others are more willing to look at the effects of business concentration in certain industries on innovation, the institutional resilience of our democracy, and children’s development. The following discussion sets forth policy principles and initiatives on which there was agreement among the contributors to this chapter, and notes and explains where there was dissent.

NEEDED REFORMS

Should the FTC Enforce Antitrust—or Even Continue to Exist? Some conservatives think that antitrust enforcement should be invested solely in the Department of Justice (DOJ). The FTC’s commissioners are not removable at will by the President, which many quite reasonably believe violates the Vesting Clause