Adaptive antitrust prevents runaway corporatism---extinction from environmental collapse.

"The unprecedented is necessarily unrecognisable. When we encounter something unprecedented, we automatically interpret it through the lenses of familiar categories, thereby rendering invisible precisely that which is unprecedented."

Shoshana Zuboff, The Age of Surveillance Capitalism2

Antitrust for the present moment

In the 1992 movie Toys, starring Robin Williams and Joan Cusack, a megalomaniacal toymaker creates an arcade game for little kids, a violent shoot-em-up where scores soar as enemies fall. What the kids don’t know is that their joysticks control real drones, in the real world, fighting real battles.

As we rightly debate the core, underlying concept of modern antitrust – the nature of the consumer welfare standard – it is important to remind ourselves that this is not a purely theoretical, academic debate. Historic changes to the scope of antitrust, and the tests by which it is enforced, have had profound impacts on the industrial landscape in the past few decades. The implications of any movement in this concept are sure to be swiftly communicated by antitrust and corporate lawyers to companies, in ways that affect business strategy.

Real world impacts are critical to bear in mind because we find ourselves at a particular moment in history. This is an age of environmental breakdown, of deep inequalities and inequities, of populism and autocracy, of globalism, of monopoly and of surveillance.

It is, even if we are numbed from the repetition, an unprecedented moment. Unfortunately, as Shoshana Zuboff reminds us above, we do not have a good track record of dealing with unprecedented moments. As one example, the last Global Financial Crisis confronted the world with a fundamental truth as to the instability of complex financial networks, and we could have reordered ourselves accordingly. But we didn’t. We instead reverted to familiar patterns of regulation (and deregulation).

As with the arcade game in Toys, those who wield the tools to remake the economy to this design or that rarely suffer the negative effects of it personally. We face massive threats – and they are not hypothetical, for they have been felt by many people for decades, as economic opportunity has disappeared from hollowed out towns, democracies have become unstable, violent discrimination has proliferated, nation states have become cowed by corporations, biodiversity has disappeared and the weather has become more extreme. The concept of consumer welfare in antitrust must be situated and rooted in this context. It cannot be otherwise

There will be limits to how far antitrust can help with all these problems, but it can certainly harm or hinder progress towards solutions.

In its essence, antitrust is industrial policy. It determines which organisations can legally build scale, and what they are allowed to do with the resulting power within the rules of fair market conduct. 3 This makes antitrust central to debates around the future of work, economic development, healthcare, food systems, and the future of technology. The context also urges us to be circumspect and intentional when it comes to comes to innovation. Within antitrust, innovation is efficiency on steroids. According to Tad Lipsky, there is a common understanding “shared across the entire spectrum of expert economic opinion” that “the predominant determinant of overall increases in our economic well-being is innovation”. 4 That is quite a statement. When it comes to climate change, green tech innovations could certainly help us live in a zero-carbon world, but we already have the technologies we need to decarbonise. It is the structure of the economy, and politics, that must catch up. When it comes to inequality, the theory is that innovations increase productivity, raising earnings and increasing the size of the economic pie. That will only solve inequality if the gains are distributed (and redistributed) fairly, not just through the tax and benefits systems, but also at the point of production. Otherwise rising capital productivity can be accompanied by unemployment or, as we also see today, underemployment and the degradation of employment terms.

Opioids were an innovation. Fracking is an innovation. Naked Credit Default Swaps were innovations. 5 Not all innovations are good. The direction of innovation matters, and while this may be influenced along paths that are profitable, paths of innovation should not be captured, unprofitable but world-saving innovations should not be side-lined, and democratic institutions should have a say in what is acceptable. At this moment, we cannot afford anything else.