It is impossible to distinguish the ideological intent of antitrust law – we must look to the consequences of future reform to determine positive intent

What are the purposes or objectives of the antitrust laws? There are several ways to answer this question. To answer it descriptively, one could look at the history of antitrust enforcement and ask who the antitrust laws have actually benefited or what they have achieved over time as they have been enforced. As the economist George Stigler wrote, “The announced goals of a policy are sometimes unrelated or perversely related to its actual effect and the truly intended effects should be deduced from the actual effects” (Stigler 1975, 140). The actual beneficiaries of antitrust enforcement may be quite different from those intended by the legislative framers of the antitrust statutes or the ones proposed by normative theorists. The answer to the descriptive question is contested. Public choice scholars have claimed that the history of US antitrust enforcers shows that small, inefficient businesses are the primary beneficiaries of antitrust enforcement, often at the expense of consumers and economic efficiency (McChesney and Shughart 1995). Many antitrust advocates would contest this claim and argue that consumers have been the primary beneficiaries of antitrust enforcement. In this chapter, I will not attempt to answer the empirical question. One could also attempt to answer the rationale question as a matter of legislative intent by looking to the intentions of the framers of the Sherman Act (1890) in the United States, the Treaty of Rome (1957), reborn in 2009 as the Treaty on the Functioning of the European Union (“TFEU”), or the foundational antitrust statute of any of the more than 100 nations that currently have antitrust laws. Such an approach is highly contestable too. Claims about the intentions of the framers of the Sherman Act, for example, have been controversial. The Chicago School theorist Robert Bork claimed to locate an economic efficiency objective in the congressional minds of 1890 (Bork 1978). Subsequent scholarship refuted Bork’s claim, finding the avoidance of wealth transfers from consumers to producers or protection of small, inefficient businesses to be the predominant legislative purposes (Lande 1982, DiLorenzo 1985, Hovenkamp 1988, Hazlett 1992). A third approach to determining antitrust rationales is to engage in a free-form normative debate about the role of monopoly, competition, law, and regulation in modern society. Should we have antitrust laws and, if so, why? This is where most of the action is today. Most scholars and antitrust practitioners—at least in the established antitrust regimes, particularly the United States and Europe—tend to assume that the foundational legal instruments creating antitrust law are sufficiently open-textured and subject to interpretation to accommodate a variety of different and sometimes conflicting normative objectives. Hence, the existential purposes of antitrust law are open for continued creation and recreation by litigants, scholars, judges, and government officials. Further, whoever have been the actual beneficiaries of antitrust law in the past, most antitrust practitioners assume that the proper beneficiaries can be reached if the right substantive norms, procedural rules, and institutional constraints are enacted. Thus, objections based on the past record of antitrust enforcement have largely fallen on deaf ears.