The alt is ‘inclusive antitrust’ framed thru Feminist Foreign Policy

Inclusive antitrust – the idea that antitrust should be deliberately focused on hearing from and serving everyone – aspires to make antitrust better by improving data inputs, options, and outcomes. An inclusive antitrust policy may encompass a spectrum of options for how antitrust and its drivers are shaped and deployed to achieve healthy competition with minimal unintended negative ancillary effects. In laying out and considering these options, Feminist Foreign Policy – already the official government foreign policy of Canada, Mexico, France, Luxembourg, the European Parliament, and Spain – presents lessons for inclusive antitrust. The lessons gleaned provide steps that can be undertaken in both the near and long terms, from leadership to process to data use – and could not be timelier in light of calls for antitrust and competition law reform and upheaval taking place around the world. Feminist Foreign Policy provides guideposts to improve antitrust policy by offering principles in expanding information and data that can contribute to more effective analysis. Inclusive antitrust aims to use better (inclusive) data to inform decision making and achieve (more inclusive) policy outcomes and decisions that serve competition goals more effectively and broadly. Whether the justifications for antitrust to be inclusive are value, purpose or efficiency-based, the concept of incorporating more complete information and evidence with a broader lens to better capture market complexities seems compelling. Being inclusive is especially important as antitrust aims to create space for competition and more level playing fields to benefit consumers across society, and prides itself on data driven decision-making. This article looks to inclusive policy forerunners to explore approaches to inclusive antitrust. Similar to antitrust, foreign policy – historically driven by a focus on defense and military force2 – is a field where inclusion has not been the dominant policy driver. And yet an increasing number of countries are officially adopting an inclusive foreign policy approach, boldly named Feminist Foreign Policy (“FFP”). FFP provides both experience and lessons for inclusive antitrust. While foreign policy may have different objectives, players, and dynamics than competition law, those differences do not diminish the transferability of the principles discussed here. Notably, foreign policy and antitrust share core commonalities: both focus on mitigating the negative effects that can occur from power imbalances. Applying an inclusive lens on a traditionally “hard power” field carries lessons for the “hard economics” and “hard data” driven field of antitrust and competition law. In line with the axiom that representation matters, FFP calls for a critical look at who is in decision-making roles across organizations, and commits to working towards meaningful diversity. This generally means diversity not only among top leaders, and not only in specific areas, but at every level across areas of expertise. Given the feminist or gender lens, the focus is primarily on ensuring that women are represented. Yet the importance of intersectional representation is gaining attention, as is the need for diversity generally FFP pulls back from narrower questions of military operations and defense, to focus on the broader goal of peace and security. In doing so, it dispenses with the assumption that a military and defense focus is the only endpoint that can assure peace and security. It seeks instead to incorporate a more holistic assessment of peace and security that includes the complexities of many different threads, such as trade agreements, economic growth, climate, cybersecurity, global health, and other domestic policies with cross border effects.57 It essentially calls for a systems design approach to foreign policy58 that also involves a culture of collaboration across institutions.59 As antitrust becomes increasingly complex, it cannot isolate itself from other areas. To be robust, antitrust policy and enforcement must consider interactions with other areas such as intellectual property, privacy, cybersecurity, national security, supply chain… yes, even foreign policy. Looking at how FFP is enhancing the ability of foreign policy to assess complex problems by improving the data used and strategic analysis is a model for those making antitrust policy – and providing strategic antitrust advice One additional lesson from FFP is to be prepared for criticisms that this all sounds good in theory, but the idea of applying it seems unrealistic.70 The lessons above highlight several areas where changes towards inclusive antitrust are straightforward and can be immediately implemented without substantive changes to antitrust or even significant funding increases. Changes already afoot in antitrust, especially in terms of institutional changes and enhanced technology expertise, also present particular opportunities to apply other inclusive policy lessons in the near term. In the longer term, where significant additional resources might be required and additional study desired, empirical research is already underway and can be further supported and bolstered. Given the immense workload already besetting antitrust and competition authorities, the appropriate place to begin may be with low hanging fruit: start with leadership, data collection, and embedding top-to-bottom inclusive norms, data use, and processes in any new institutional structures. Creating diverse teams is widely acceptable and has become a key part of the U.S. and EU governments.71 This should be complemented with regular inclusivity development education that helps individuals identify and address perspectives not represented who should be brought into the analysis. The Canadian process has made many tools and training broadly available, which can serve as a foundation to build upon. Creating inclusive institutions can be challenging when it involves addressing structures and cultures firmly entrenched. The creation of new competition units, however, especially data focused units such as the CMA’s DaTA Unit, the FTC’s Tech Enforcement Division, 72 and the Data Center proposed by Senator Klobuchar’s CALERA legislation,73 offer an opportunity to make these organizations inclusive by design – from the outset and from top to bottom: leadership and personnel to data use to analysis and decision-making. The CMA’s DaTA unit seems to be doing some of this already, for example through its work focused on algorithm bias.74 Creating explicit commitments, objectives and plans for thorough inclusion could lay foundations that will embed inclusivity and serve as a model for more established organizations to embrace inclusive antitrust principles. The benefit here, given the focus on data of these new organizations, is that they can embrace the focus on making data use inclusive from the beginning through their “digital DNA”75 while also avoiding entrenching the well documented biases and exclusive practices that notoriously pervade some Silicon Valley organizations.76