Lack of commitment from the legislature and the justice system prevents durable uptake.

Three forces tend to work against the attainment of lasting fundamental change. The first is time. A vital determinant of success is the durability of the commitment of the nation’s political leadership to place transformation advocates in senior leadership roles at the DOJ and the FTC, to support new legislation, and to appoint federal judges sympathetic to transformation perspectives. The redirection of the antitrust system began in the federal courts during the late 1970s and accelerated in the Reagan presidency in the 1980s required several decades to set firmly in place. How many transformation-minded presidents will occupy the White House over the next thirty years or so? Over the same period of time, will Congress provide the appropriations, statutory upgrades, and political support necessary for the public agencies to execute the transformation agenda? Are current transformation advocates in the antitrust agencies and the White House taking steps to ensure that their initiatives survive possible regime changes over time? If Congress were to undertake a basic retooling of substantive competition policy principles, might it take the further step of considering whether the existing distribution of prosecutorial authority (including the maintenance of two federal antitrust bodies) requires simplification?153

A second, related factor is the time required to effectuate a change in judicial perspectives that welcomes a significant redrawing of antitrust’s doctrinal boundaries. Two necessary paths to this adjustment are: (1) the appointment of new judges sympathetic to transformation perspectives; and (2) the persuasion of existing judges to endorse efforts, by government agencies and private litigants, to apply or extend (at least in small steps) the existing doctrinal standards to challenge alleged episodes of anticompetitive conduct. In the shorter term, efforts to bring cases that expand enforcement frontiers will face resistance from a large body of judges who endorse the doctrinal status quo and are skeptical about extensions.