Antitrust and the Presidency
Giorgio Monti
Professor of Competition Law
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The shrinking of antitrust:
1978 - 2006
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Shrinking some more:
1976, 2001, 2017
“Antitrust is dead,
isn’t it? That was my
impression.”
R. Posner (2017)
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• Most conduct is welfare ambiguous
– Type 2 errors better
– Shift to rule of reason
– High threshold otherwise (Brooke Group v Williamson)
• Concentration risk lowered
– 1968: if CR4 = 75% a merger between
• Two firms with 4% market share will be challenged
– 2010: if HHI above 2500 (CR4 close to 100%)
• Merger raising HHI by more that 200 presumed risky
• Consumer welfare, no other goal
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The culprit(s):
law and economics

T.I.N.A.
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 Post-Chicago
– Kodak v ITS (1992)
– UPP test in mergers (2010)
– AMR v US (2003)
 Behavioural economics
– Irrationality defeats cartels
 Inequality
– Mobility scooters rather than Christie/Sotheby
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Barriers to innovation

Can you trump the antitrust
paradox?
44th President
‘Reinvigorate antitrust
enforcement’
– Executive Order:
Steps to Increase
Competition and Better
Inform Consumers and
Workers to Support
Continued Growth of the
American Economy
45th President
‘Amazon has a huge
antitrust problem’
– What’s outside the rule
of law?
• Commitments in merger
• Prosecute foreign firms
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