The antitrust meme: intelligent design and the invisible hand of antitrust

Abstract

The consumer welfare standard is a hotly debated issue in antitrust enforcement. Some present it as an obstacle that prevents antitrust from being more responsive to pressing social issues and non-economic interests. Others defend it. While polarized, those discussions often share a common feature: they are intelligent design narratives. Still, arguments have also been made that much of antitrust results from more evolutionary, uncoordinated adaptations. In consequence, antitrust might not be easily changed by political fiat. This article investigates such a more organic way of looking at antitrust and asks what it may mean for attempts to change antitrust. It identifies possible ‘workability’ factors steering decision-makers towards a specific shape of antitrust. It argues, however, that while evolutionary developments may have an impact on antitrust, the specific course of those evolutionary movements is affected by the subjectivity of decision-makers. This subjectivity can be influenced by the general climate of opinion, cultural capture, and narrative preference. The article concludes that ideology should not be discarded as a force impacting antitrust, and that workability together with subjectivity-affecting factors can be seen as producing ‘antitrust memes’—something that at a given time people know they should spread.

1. INTRODUCTION

There is nothing more powerful than an idea whose time has come.¹ In antitrust, this idea was once the consumer welfare standard. Its time came in the 1970s—it contributed to the Chicago revolution in antitrust and determined the evolution of enforcement for the next few decades. As of today, however, it is strongly contested.² It is argued that it curtailed antitrust to the point of near irrelevance, that the philosophy associated with it has been ‘misguided’, and that it prevents addressing pressing issues of the modern day.³ This may concern typical areas of economic activity but also protecting special values such as sustainability, labour welfare, media pluralism, free speech, and privacy.⁴ In short, aside from more orthodox enforcement, it is claimed that, among its many alleged sins, antitrust is not doing enough from the point of view of what can be called the ‘moral sentiments’ of society.⁵ From this angle, antitrust is in a deep crisis or at least in need of change.⁶ A more recent criticism is also that while in the USA major antitrust projects are considered, it is allegedly ‘incremental change’ that is ‘still the order of the day’ in Europe.⁷

To find support for antitrust reform, the original goals of antitrust are considered once again (insofar as it is believed that the goals of antitrust are constant but that their interpretation has been wrong).⁸ Furthermore, new sources of legitimacy for an updated version of antitrust policy are investigated (insofar as it is believed that antitrust goals are dynamic and may adapt over time).⁹ Those attempts often end up with proposals that the consumer welfare standard should be dropped or reimagined.¹⁰ Under this narrative, the Chicago School is also often blamed for hijacking antitrust and reshaping it in accordance with its own ideological preferences.¹¹ From this angle, antitrust becomes a product of intelligent design: antitrust was once shaped to fit a specific vision and serve a specific goal, which can now be easily changed. If this is done, a broad range of socio-economic concerns could be better addressed.¹²

This, however, is not the only way of looking at the dynamics that drive antitrust. Within the current antitrust debate, some have argued that the turn towards Chicago-style enforcement was not simply ideologically motivated but followed from practical considerations that gave rise to a certain set of antitrust limits.¹³ As opposed to intelligent design, this perspective is, implicitly, more evolutionary: guided by an invisible hand, antitrust drifted towards a certain way of operating because this is what worked in practice. Antitrust enforcers and judges (decision-makers) address, on an ongoing basis, practical challenges that were not decided at the level of legislative acts; and they need to do this in a way that works. This can be called the workability impediments of antitrust. From this point of view, many attempts to reconceptualize antitrust may be futile. They focus on idealized visions of what antitrust could do, yet they ignore that what antitrust does in practice comes not so much from any ‘vision of the anointed’ but from limits and limitations that are inherently interwoven into the fabric of legal rules and institutions that enforce them. Tampering too much and too quickly with this complex system is risky.

The claim that antitrust develops in a more organic and evolutionary way, producing a set of antitrust limits, is not insignificant. For ‘reformers’, this would mean that their attempts might face additional obstacles, requiring additional work to bypass them; for ‘sceptics’, the argument offers an additional reason to believe that the reformers are wrong, providing also a kind of re-assurance that most radical reforms will not succeed.¹⁴

The goal of this article is to explore, in theoretical terms, to what extent antitrust might be bound by such practicality (workability) factors that emerge bottom-up. The claim that there are some natural limits to antitrust is interesting, and a better understanding of how those limits come into existence should contribute to a better understanding of how changes in antitrust take place. If changes are determined by practical considerations, then ideology can be expected to matter less, as even if it manages to initiate policy shifts, the ‘system’ will sooner or later erase them, trying instead to ensure workability, which under this interpretation remains the main concern. Conversely, if those are ideological considerations that are of primary importance, then to understand antitrust, one should attach utmost interest to what happens around antitrust. Basic intuition might suggest that the truth lies somewhere in the middle. Still, such general knowledge is not entirely satisfactory: basic intuition also says that if something is thrown into the air, it will eventually fall—yet what is actually interesting are the mechanics and specific forces behind such processes. This article seeks to map them out.

The perspective provided in this article is that of an active enforcer. The point of view is generally European but the overall outlook is transatlantic and aimed at re-evaluation. In consequence, the discussion offered in this article tries to abstract away from specific developments in the USA and the European Union (EU), attempting instead to frame them in more general terms. Furthermore, while the question is often how antitrust should change under some intelligent design perspective (a normative and dogmatic issue), this article asks how antitrust may be changing (a factual and realist issue).

To fulfil the task outlined above, the article is divided into four parts. First, it provides an overview of the current antitrust debate, discussing how the intelligent design and evolutionary perspectives seem to be implicitly, and sometimes more explicitly, present in the debate (Section 2). The discussion then moves to workability factors that may be relevant to decision-makers, and which—under the more evolutionary perspective—can be expected to influence antitrust enforcement, giving rise to what some authors call the ‘limits’ of antitrust (Section 3). A short theoretical exercise is proposed to see whether the workability side of antitrust always needs to work against a broader conception of enforcement—‘non-economic interests’ are used as a testing device and a more extreme kind of development, but—by extension—the discussion remains relevant to more moderate types of antitrust reform. The article suggests that while workability matters, it is not the only driving force behind antitrust evolution and that ideology might have a greater influence on antitrust than some assume (Section 4). With this descriptive work done, the last substantive part of the article (Section 5) argues that changes in antitrust can be seen as a more complex, ‘memetic’ process—it suggests what this may mean for three groups active in the current antitrust debate: the reformers, the sceptics, and the more neutral observers and participants.

2. ON THE ORIGIN OF LIMITS

To situate the issue outlined in the introduction, this section provides an overview of some of the features of the current antitrust debate. It explores the underlying intelligent design and evolutionary perspectives present in arguments that are currently made. Taking into account that the level of tension present in antitrust for the past few years has contributed to large research output, the intention here is not to go through all arguments that have been made—this would exceed the scope of a single article. Still, given this considerable research output, a summary of certain characteristics of the current debate should be of use both from the point of view of full-time academic researchers and, even more so, practitioners who observe this debate and try to form their own opinions about it.

Surface level: standards

At the surface level, much of the current antitrust debate is about the consumer welfare standard, which determined the dynamics of antitrust enforcement in the past few decades. It is undisputed that the consumer welfare standard was vigorously promoted by the Chicago School, in particular Bork, and that it reshaped the way antitrust operates. Part of this process, in particular in the USA, was an argument that the legislative intent behind antitrust had been the maximization of consumer welfare.¹⁵ Bork himself saw consumer welfare as a shorthand for market efficiency (ie total welfare) and thus, using Adam Smith’s language, ‘merely another term for the wealth of the nation’.¹⁶ One of the effects of the Chicago revolution has been that broader goals of antitrust and non-efficiency considerations have fallen out of grace.¹⁷ To keep with Adam Smith’s writing style, moral sentiments became a non-issue in antitrust.¹⁸ The consumer welfare standard, which originated from the USA, soon rose to prominence also in Europe, in the form of the ‘more economic approach’, which some called ‘Chicago-light’.¹⁹

This is now contested. It is argued that the consumer welfare standard was not originally intended for antitrust and that it fails to properly identify market problems.²⁰ Other proposals are put forward. To keep this overview concise, three points seem most relevant. First, it is argued that antitrust has a greater role to play than just concern for the welfare of consumers.²¹ Secondly, antitrust enforcement should be expanded.²² Thirdly, the consumer welfare standard should be dropped or modified.²³ The gist is thus that antitrust should change—both in relation to its economic side and its relationship with wider social goals.

As signalled in the introduction, all those positions can be called ‘intelligent design’ narratives.²⁴ It is argued that the legislature had a specific intent and that for this reason antitrust should operate in a given way. Or that there are some higher goals that should be followed by antitrust decision-makers, and there is a specific way for antitrust to be enforced. This intelligent design attitude is not unnatural. In legal arguments, there is an understandable tendency to support one’s argument with the original intent of the legislature (‘these are not my personal views, this is what the legislature wanted’). Furthermore, making a proposal requires specifying a solution that is designing something.

However, this is not necessarily how antitrust works—this becomes clearer when one looks beneath the surface of the current debate.

Beneath the surface: the antitrust standards paradox

When President Biden presented his executive order aimed at reinvigorating antitrust enforcement in the USA, he pointed at Robert Bork as one of the architects of a failed experiment in antitrust.²⁵ Indeed, Bork’s The Antitrust Paradox remains the central text advocating for the consumer welfare standard. From this angle, the consumer welfare standard can be taken as ‘intelligent design’ by Congress (insofar as Bork was a supporter of originalism and argued that the focus on consumer welfare follows from the legislative intent which he merely discerned) and by Bork himself (insofar as he advocated for specific methods of antitrust analysis).

Yet, what prevailed as the applicable way of resolving cases in most jurisdictions is notoriously not the consumer welfare standard advocated by Bork.²⁶ Assistant Attorney-General Jonathan Kanter’s speech, which was delivered not long after President Biden’s, is noteworthy in that regard.²⁷ In his speech, Kanter argued that the consumer welfare standard requires calculating the welfare effects of market conduct to determine whether they are anti-competitive or not. He therefore called it the ‘central-planning standard’. Likewise, in Europe, some practitioners have argued that the consumer welfare standard is dead and that the idea of quantification is a fallacy.²⁸ Yet, the whole idea of quantification was specifically what Bork wanted to avoid.²⁹

In consequence, beneath the surface level of policy debates—in the second stage of untangling the complex web of antitrust dynamics—there is typically an acknowledgement that the nature of antitrust is more nuanced. Thus, some authors have argued at length that modern antitrust is a complex enterprise relying on a double helix of Chicago and Harvard ideas.³⁰ Others have made calls to better inform decision-makers that the issue of the consumer welfare standard is more difficult than it may seem.³¹ Within the current debate, AAG Kanter himself has arrived at a conclusion that there are in fact so many definitions of the consumer welfare standard that each lawyer will likely present a different one.³² Indeed, even some of the proponents of the consumer welfare standard admit that the consumer welfare standard may mean at least three things: (i) a strict standard that requires proof of actual price effect; (ii) a soft standard that works as a guide to formulate legal rules of liability or procedure; (iii) a loose standard that works as a priority-setting device.³³ All of that does not yet negate the intelligent design perspective but challenges possible arguments of antitrust being a product of solely the Chicago School. At this stage, the picture remains relatively static: antitrust is more complex, its shape is not just a product of Chicago, but it is not apparent what the origins of antitrust limits are.³⁴

Recent discussions in some international fora, such as the Organisation for Economic Co-operation and Development (OECD), have the potential to further illuminate this issue, making it less static. The OECD has suggested bringing more clarity to the problem of assessment standards by segregating and (broadly) defining them.³⁵ It has proposed to distinguish: (i) goals; (ii) standards; and (iii) rules of evidence.³⁶ If standards are broadly (loosely) defined and it is recognized that the consumer welfare standard may use various kinds of presumptions, also structural ones, a jurisdiction may end up with identical results using nominally different standards of assessment. For instance, the competition protection standard is supposed to be more concerned with the process of competition rather than actual effects.³⁷ However, the consumer welfare standard may equally well operate under an assumption that competition should be protected using stricter rules of evidence, for example broad presumptions of anticompetitive effects.³⁸ This can be called an antitrust (standards) paradox.³⁹ The source of this paradox is the fact that decision-makers (judges, enforcers at administrative agencies) have much influence over how evidence and liability are assessed. For example, in the USA, the courts effectively decide over what constitutes a per se violation, which cases are subject to the rule of reason, and how this rule works. In the EU, there are for example ‘by object’ and ‘by effect’ infringements, but the decision-makers decide under which category a violation falls; there is also the concept of appreciable restriction, appreciable effect on trade, and a myriad of technical tests. While there is no full commensurability of the US and EU situation, the point is that by making adjustments at the seemingly least relevant, bottom level, one can obtain a much different shape of antitrust.

Thus, when one looks beneath the surface, it turns out that, in a way, the consumer welfare standard does not exist—not in the sense of some ‘intelligently designed’ core of antitrust that was once adopted top-down and that can be easily removed and replaced by something else.

Depths: the invisible hand of antitrust enforcement

With the intelligent design narrative weakened, it becomes tempting to ask whether maybe antitrust is subject to a much different process. A standard alternative to intelligent design is evolution, with Darwin’s On the Origin of Species being a classic reference for the underlying idea. Darwinian evolution can be understood in two ways: (i) incremental changes and (ii) no focus on any intended design—the latter is in fact more relevant, providing grounds to arguments that complex arrangements may arise without any grand plan.⁴⁰ In legal and political theory, a descendant of this view is known as an invisible hand explanation—its gist is that an outcome arises as a byproduct of decentralized actions.⁴¹

In antitrust, this kind of argument has been recently made by Petit.⁴² The argument has been that the Neobrandeisians (and some more moderate commentators) overestimate the ideological influence of the Chicago School. Instead, much of how antitrust looks is supposed to follow from practical considerations.⁴³ Those practical considerations are resolved by decision-makers and give rise to certain antitrust limits that cannot be easily changed by ‘political fiat’.⁴⁴ In the USA, in particular, the law evolved following an incremental and slow process, contributing to those limits.⁴⁵ Under this argument, practicality becomes the basis for a ‘theory of antitrust limits’ which, in turn, suggests that antitrust needs to respond to the level of uncertainty in a given jurisdiction.⁴⁶

The practicality argument can also be phrased more indirectly. For example, Hovenkamp argues that antitrust moved away from its ‘movement’ roots with vague slogans towards a more technical perspective focused on practicality, and with decision-makers creating a patchwork of legal tests, often choosing Harvard over Chicago.⁴⁷ On the other side of the debate, Wu makes a comment in passing that the consumer welfare standard was reinforced by intrinsic features of the court system: judges preferred the consumer welfare standard as it provided them with a simple solution.⁴⁸ He observes that the Chicago School has ‘given the judiciary an excuse not to do their jobs’ and criticizes this: judges should do their work and make value judgments, not abdicate from their role of judging.⁴⁹ Yet, at the fundamental level, the point remains similar: practicality won. Judges, led by an invisible hand, started to apply the method of making assessments that allowed them to achieve their goals best. This is a problematic hypothesis from the point of view of antitrust reformers: if the reformers themselves speculate that the judiciary, as a collective, just does not want to ‘do their jobs’, that is, if there is some non-ideological characteristic about the judicial profession that pushes it towards a more Chicagoan perspective, this indicates additional obstacles for antitrust reform.

A theory of antitrust memetics?

On a common sense basis, the invisible hand explanation is not without logic: on the dogmatic level, antitrust can be argued to have certain goals; yet on the practical level, judges and enforcers can be expected to optimize and pursue their own goals as well—this has been part of the legacy of legal realism, including the law and economics movement.⁵⁰ Thus, to paraphrase Easterbrook, one could say that there is no intelligent design of antitrust, there are only evolutionary outcomes.⁵¹ What follows is that since it can be argued that at the basic level, the primary goal of decision-makers is to keep the whole system running, workability becomes an issue. The life of an enforcer and judge is a different life than that of an advocate or academic. Market reality is complex, facts are imperfect, information is costly, the level of uncertainty is high, bizarre cases happen, decision A in case X may have implications for an actual case Y and a hypothetical case Z, cases need to be resolved in a realistic timeframe, etc. From the point of view of reforming antitrust, workability gains therefore a more distinct character: it is not just that a certain vision of antitrust should be workable in the sense of a normative claim, but that it needs to be workable to survive and actually be utilized by decision-makers.

However, doubts can be cast over the invisible-hand explanation as well. For example, if one looks at the developments in the EU in the 1990s from the point of view of the invisible hand theory, this becomes questionable, because the more economic approach was implemented top-down by the European Commission without any apparent ‘invisible’, incremental, evolutionary interaction.⁵² Likewise, if one takes Petit’s theory of antitrust limits, which focuses on practicality and resolving the issue of uncertainty, the EU part of antitrust history also does not seem entirely persuasive: it does not seem that the EU decision-makers were resolving any uncertainty issue, but rather simply aligned the EU system with that already in place in the USA. Technically, this does not falsify any claim in relation to the USA, but it weakens the aforementioned theories as a more general explanation.

The remaining part of this article reconstructs this picture in a way that addresses those deficiencies, resolving also the tension between the workability argument and the widespread belief that the Chicago School exerted a strong ideological influence on antitrust. The article also suggests to reformulate what has been called by Petit the ‘theory of antitrust limits’, proposing a different focus for future research. Since effectively the question here is about the relationship between intelligent design and invisible hand explanations—both of which come down to imitating someone (ie either imitating the author of a design, or decision-makers imitating each other, while choosing the most practical arrangement in a process of iterated interactions)—the description provided further is provisionally called a ‘theory of antitrust memetics’.⁵³ This is to highlight that imitation might play a more important role in antitrust than one could assume. A short methodological note seems appropriate here. In empirical sciences, some have argued that one of the main features of a theory is the process of its falsification and its predictive value.⁵⁴ In social sciences (law, economics, political sciences) this causes controversy, due to inherent problems with testability.⁵⁵ However, even in natural sciences, the classic claim concerning the ability to falsify a theory weakened over time.⁵⁶ With this caveat in mind, this article uses the word ‘theory’ in a derivative form, related to the claims that have already been made in antitrust scholarship.⁵⁷ It is thus mostly a discursive device aimed at describing how antitrust changes.⁵⁸

To do so, Section 3 discusses what ‘workability’ may mean for decision-makers. To see whether workability inevitably leads to an approximation of Chicago antitrust proposals, it is explored whether a non-economic interest can find a way into antitrust analysis, even assuming a more evolutionary, ‘invisible’ dynamic of antitrust. Section 4 provides further comments on what might impact the perception of workability, and Section 5 restates the entire argument, discussing what it may mean for various members of the antitrust community. Section 6 concludes.

3. ANTITRUST IDEALS AND REALITY

Workability is where the antitrust ideals of an intelligent design meet the harsh reality of everyday enforcement. Without resorting to a full-blown sociological study investigating what enforcers and judges consider workable, one can try to discern the parameters of ‘workability’ with enough degree of precision based on existing literature and reasonable prediction. After doing so, this section discusses five areas in which decision-makers can move certain elements to alter antitrust through incremental changes.

Parameters

Workability appears explicitly in Easterbrook’s 1980s writing, with the Chicago School being called the ‘Workable Antitrust Policy School’ that relies on scepticism towards the ability of decision-makers to administer economic models and improve market outcomes, given the difficulties in appraising what business practices do.⁵⁹ While Easterbrook does not define workability, his meaning of the term appears to come down to performance tests: Chicago is workable, because it eliminates the most controversial practices, leaving more ambiguous ones to be eliminated by the market, due to their inefficiency.⁶⁰ Bork, in turn, mentions administrability and internal consistency as important factors.⁶¹ Arguments were also made that antitrust would never produce a workable standard, unless it dropped its constitutional mode of interpretation in favour of ordinary statutory interpretation, which would remove disagreements between the Chicago, post-Chicago, and populist sentiments in antitrust, ensuring at the same time predictability and consistency.⁶²

The situation is not much different today. Hovenkamp, for example, speaks about antitrust problems in terms of administrability and avoiding difficult trade-offs.⁶³ Predictability is still present in the discussions.⁶⁴ Predictability provides a justification for ‘scientific rigour’ in antitrust, with science being seen as ‘objective’ and value-free.⁶⁵ The argument by Petit, mentioned in Section 2, puts more emphasis on practicality understood as solving the problem of uncertainty in the institutional context in which the decision-maker operates (eg decentralized court system and private enforcement in the USA, as opposed to more centralized, administrative system in Europe, with much less private enforcement).⁶⁶

The OECD, in turn, has used five criteria to assess various antitrust standards: (i) predictability; (ii) social welfare enhancing; (iii) ease of administrability; (iv) political sustainability; (v) minimizing the risk of errors.⁶⁷ They concern both more abstract benchmarking (eg social welfare enhancing), which is of more interest from the point of view of intelligent design, and more practical issues that might be of much interest to individual decision-makers (eg administrability).

Making a list of relevant factors involves much discretion, but given the overview above, this article suggests the following factors as possibly of interest: (i) retrospective consistency; (ii) simplicity and administrability; (iii) predictability; (iv) prospective consistency. They focus on the practical dimension of decision-making (as opposed to normative and ‘philosophical’ considerations), and can be explained in the following way.

Retrospective consistency

The decision-maker can be expected to prefer sticking with what has been already said, and thus rendering a decision based on a rule that fits earlier case law. This is because in such a case: (i) no explanation is needed for taking a different decision; (ii) old reasoning can be replicated; (iii) the likelihood of annulment is smaller. Retrospective consistency contributes to slow, incremental changes in enforcement.

Simplicity and administrability

The decision-maker can be expected to have a preference towards making a decision based on a rule which is simple and administrable. This is because: (i) a simple rule means a simple explanation to outside actors and (ii) a simple and administrable rule means less effort and requires less resources (eg time, money, and information).

Predictability

The decision-maker can be expected to prefer making a decision based on a rule which can be explained to external actors in a sufficiently clear way, that is one that offers predictability. This is because: (i) predictability shows that the decision was not arbitrary and is thus easier to defend and (ii) predictability allows external actors to adjust their future behaviour thus possibly preventing new cases from appearing.

Prospective consistency

The decision-maker can be expected to prefer making a decision based on a rule which can reasonably be anticipated not to cause problems with future cases.⁶⁸ Doing so reduces the costs of future decision-making. At the same time, prospective consistency might be less concerning for the decision-maker than retrospective consistency: the former is a deferred future problem and the latter is more immediate. To conclude, while retrospective consistency is about ensuring that a new decision fits what has already been said in case law, prospective consistency is about ensuring that a new decision will not affect future decisional practice in a negative way.

To be sure, it is possible to have an enforcer or judge with a preference for complex analysis or a need for extravagant reasoning and for breaking away from old cases, and thus ‘making history’ (eg a politically motivated enforcer, or a newly appointed judge who follows a different philosophy than older colleagues, like judges Bork and Easterbrook). Indeed, the Chicago approach in the 1970s can be seen as going against retrospective consistency, albeit one should note that the Chicago School made sure to provide decision-makers with a feeling that the past is not lost (the re-discovery of the true original legislative intent by Bork).⁶⁹ Still, looking at long-term processes and large numbers, there seems to be no reason for decision-makers to discard those factors; their presence makes the life of a decision-maker easier, bringing more utility.

In this context, the next subsection looks into how decision-makers may end up expanding the scope of enforcement by incremental changes that do not instantly tear apart the old order, but may ultimately lead to a far different place than the starting point.

Moving elements

The language of both US and EU antitrust law is notoriously open-textured, creating room for evolutionary movements initiated by decision-makers.⁷⁰ This subsection identifies five areas in which decision-makers have a large enough margin of appreciation to address non-economic interests and thus start a process of change, possibly without ever dropping (at least not explicitly) the consumer welfare standard (and thus satisfying the need to ensure retrospective consistency, mentioned earlier as the first factor that they may feel is important to observe). To avoid a back-and-forth between various non-efficiency interests, further discussion uses free speech as an example. Free speech in antitrust was one of the early concerns of the Neobrandeisians, which so far has not led to any spectacular policy changes or enforcement developments—this makes it more interesting to investigate.⁷¹

Priority-setting

Decision-makers have much leeway in defining their priorities.⁷² Merely focusing on a certain social issue, for example free speech, does not create much risk of violating any of the factors mentioned earlier. Even sticking to a very narrow idea of the consumer welfare standard, enforcers may simply start expressing interest in certain sectors. Still, new non-standard cases sooner or later invite new theories of harm.

Quality

Decision-makers cannot be expected to easily incorporate a non-efficiency interest into antitrust analysis by political fiat.⁷³ This would violate the need for retrospective consistency. One can see that in European merger control. In the Polish national-level Orlen/Polska Press merger, the authority was asked (by third parties) to block a merger due to free speech concerns.⁷⁴ The authority refused, and the court concurred with the authority upon appeal: free speech is not antitrust. However, if one argues that free speech and media pluralism are part of product ‘quality’ and thus consumer welfare, there is more room for change.⁷⁵ This is not without controversy but creates an entry point at the level of substantive law.⁷⁶

Uncertainty

Quality causes much controversy, as it is difficult to assess.⁷⁷ This leads back to the issue of dealing with uncertainty in antitrust as one of the possible factors that, under arguments made by other authors, affect the final shape of antitrust.⁷⁸ Decision-makers may relatively easily move around between two extremes: exact quantification and probability.⁷⁹ This is possible without cutting all ties with the general idea of following the consumer welfare standard, thus ensuring more retrospective consistency.⁸⁰ Since probability-based judgments typically need to rely on proxies and presumptions, they may also contribute to simplicity and administrability, even if quality is difficult to measure; in practice, decision-makers often rely on heuristic arguments in relation to quality.⁸¹

Risk

An issue connected with uncertainty is attitude towards risk. Risk–attitude depicts how an actor tends to react to uncertainty. The comments about uncertainty above can be taken as a decision made by a risk-neutral actor. Yet, decision-makers may also be risk-averse (less likely to accept high uncertainty) or risk-loving actors (more likely to accept uncertain results). Attitude towards risk is a highly subjective issue, yet its impact on the perception of workability might be high. What seems ‘unworkable’ to a risk-averse enforcer might seem perfectly ‘workable’ to another enforcer. To a Chicagoan, structuralism is illogical and inconsistent, and thus unworkable: this is mostly because the Chicagoan believes that the risk of actual competition restriction is low, while the risk of competition chilling is high. For a structuralist, it is the other way around. The 1945 Associated Press case, provides another example.⁸² The case concerned an anti-competitive agreement among newspapers. The issue was whether the press industry, which plays a special role from the point of view of free speech, should be treated like other markets.⁸³ As pointed out by one of justices, since the role of free speech is special, this market should not be assessed the same way as ‘peanuts and potatoes’.⁸⁴ In other words, the attitude here was risk-averse. In a world of perfect knowledge, there is a ‘right’ answer to this question. Yet, decision-makers who actually develop their idea of workability do not have perfect knowledge. Attitude towards risk may further contribute to establishing presumptions and simple rules of assessment (including heuristic ones), thus enhancing simplicity and administrability, and further predictability.

Time-preference

Time preference is about choosing immediate or deferred results. The problem of innovation is a good example of time-preference issues.⁸⁵ Compulsory licencing may lead to more consumer welfare today; however, it may weaken incentives to innovate and thus lower consumer welfare in the future. Furthermore, the more we speak about the future, the more probabilistic must be reasoning, since the future is unknown. There is also a ‘justice’ element in this regard that goes beyond economics since the group of actual consumers who enjoy some welfare today might be a different group than in the future. As there is no clear legislative prescription on how decision-makers should approach the issue of time, the assessment of workability becomes more dependent on the subjective judgments made by decision-makers.⁸⁶

Subjectivity

The previous two subsections discussed what workability might mean for decision-makers, and how they may start paying attention to non-efficiency interests, even if they do not ever drop their commitment to the consumer welfare standard explicitly. How is it then that non-efficiency interests have not been taken into account on a large scale in the past few decades? Is it that at the end of the day workability needs to work towards the Chicago ideal and away from a broader conception of antitrust?

One hypothesis might be that the evolutionary perspective outlined in the subsection ‘Depths: the invisible hand of antitrust enforcement’ is inherently wrong—there was simply no ‘intelligent designer’ who would impose a design favourable to broad antitrust enforcement. However, this might be a too hasty conclusion, since we also saw that decision-makers may have both their own incentives to act and means to alter the shape of antitrust. Another hypothesis might be that non-efficiency interests ultimately fail with regard to prospective consistency, which was covered in the subsection ‘Parameters’, but was the only factor not present in the subsection ‘Moving elements’. Decision-makers may anticipate that even if they, for example take the ‘quality route’, it will be a slippery-slope towards lack of prospective consistency, since even if they create simple and administrable rules to address the problem of assessing quality, sooner or later the whole system will become unworkable.⁸⁷ However, one could argue the same in relation to purely economic antitrust: economic analysis invites in a further step economic quantification, and once quantification starts, it might become a slippery-slope towards ‘economic extravaganza’ that ultimately makes antitrust unworkable—Jonathan Kanter’s ‘central-planning standard’. In a way, every antitrust project carries the seeds of its own destruction.

A yet different explanation might be that workability itself is affected by subjectivity: indeed, if we look through the factors mentioned above, they involve subjectivity, which cannot be easily avoided.⁸⁸ The next section looks therefore at possible sources shaping this subjectivity.

4. THE SWAY OF OPINION

Sections 2–3 outlined first the reasons and then areas which may cause antitrust to adapt in a more evolutionary way, rather than by intelligent design decreed top-down. As it was discussed, such an evolutionary perspective on the applicable antitrust standard of assessment can be seen as a distant relative of invisible hand explanations known from legal and political theory. However, as it was shown in the previous section, the perception of workability involves a degree of subjectivity. The discussion below further explores this issue, mapping out possible sources of this subjectivity and means of changing it.

Society: intellectual climate of opinion

On the common sense level, one could argue that each epoch is driven by its own climate of opinion that people tend to share and take as something that is simply ‘known’. The climate of opinion can potentially influence how people perceive the world; a change in the climate of opinion may thus also change the perception of antitrust. In that sense, the climate of opinion impacts also the scope of Overton’s Window, and thus options available to decision-makers with regard to factors discussed in the subsection ‘Moving elements’.⁸⁹

The belief that there is a phenomenon that people living in a specific time period are driven by a certain truth is so strong that it gained its own name: the zeitgeist.⁹⁰ While Bork once claimed that antitrust is a microcosm in which larger movements of the society are reflected, one could say that the intellectual climate of opinion would be the macrocosm influencing antitrust.⁹¹ Cardozo called this eloquently ‘the total push and pressure of the cosmos’ that decision-makers cannot escape and which ‘determine where choice shall fall’.⁹²

Generally, if one looks through literature, and authors from diverse fields, writing in different time periods, there seems to be a common theme when it comes to the climate of opinion and how it changes.⁹³ First, economic conditions affect people’s philosophical attitudes and people’s attitudes affect economic conditions.⁹⁴ Secondly, since those changes require time, a swing in the climate of opinion may require a period longer than a generation, with younger generations and non-conforming outsiders attacking old dogmas, only to establish a new consensus which becomes attacked when its intellectual rigour deteriorates.⁹⁵ Dicey’s perspective is noteworthy in that regard because there is a connection between his views and the Chicago School, and thus indirectly also antitrust—this is because Dicey had a profound impact on Milton Friedman.⁹⁶ Dicey, an English legal theorist, speculated on how the public opinion influences legislation; he observed that: ‘A change of belief arises, in the main, from the occurrence of circumstances which incline the majority of the world to hear with favour theories which, at one time, men of common sense derided as absurdities, or distrusted as paradoxes’.⁹⁷ The lesson that Chicago seemingly drew from Dicey was that the key to success is persistence in a long process of large opinion shifts.⁹⁸

One may also look at the climate of opinion in a narrower perspective, that is through the lens of antitrust scholarship. Andriychuk, for example, argues that the momentum for the intellectual dominance of every antitrust doctrine eventually disappears, which leads to the emergence of a new one.⁹⁹ This can be seen as part of a perpetual dialectical movement.¹⁰⁰ Likewise, when it comes to shifts in the general climate of opinion in the context of generational changes, some Neobrandeisians appear to be supportive of an argument that part of the reason for the Chicagoan drift in antitrust policy was rooted in demography.¹⁰¹

The point about long-cycles and demography has much appeal: a person raised during the Great Depression and one raised during the post-war economic boom can be expected to have vastly different experience of markets. This can be compared to Max Planck’s observation that: ‘a new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it’, commonly known as: ‘science progresses one funeral at a time’.¹⁰² Planck’s observation is formalized by Kuhn.¹⁰³ Like Dicey, Kuhn seems to had impact on Friedman.¹⁰⁴ Generally, Kuhn’s argument is that a scientific community (in his case, physicists) continuously goes through two periods of activity: ‘normal science’ and paradigm shifts, with a crisis taking place in between.¹⁰⁵ During the periods of normal science, individuals operate and think in accordance with a set of rules defined by a paradigm.¹⁰⁶ During the periods of paradigm shifts, the entire world seems to change.¹⁰⁷ Kuhn highlights that a strong force in accepting new paradigms are generational changes in the scientific community, as its new members are often less committed to older paradigms.¹⁰⁸

Overall, if one applies the perspective outlined above to the current times, it is noticeable that the current antitrust debate takes place in the context of a possibly new climate of opinion that might be emerging due to a generational change and developments in the world outside antitrust. This includes large structural changes following the 2008 financial crisis, the 2010s being further marked with the growth of Big Tech (and thus disruption of old power structures), and the 2020s being a highly visible beginning of strong geopolitical tensions.¹⁰⁹ For such a process to fully affect the subjectivity of decision-makers may require time; however, it can be taken as at least partial explanation of the current state of the debate and possibly also an indication of its further trajectory.

Antitrust community: cultural capture

The second layer of exerting influence over decision-makers’ subjectivity may go beyond the society as such. It can be associated with the concept of cultural capture. Generally, regulatory capture theories rose to prominence in the 1970s.¹¹⁰ In turn, the theory of cultural capture has been formulated in relation to financial regulators.¹¹¹ More recently, the theory has been discussed in the context of antitrust.¹¹²

In antitrust, the argument is that in the process of representing their clients, private practitioners may—intentionally or unconsciously—adopt the views of their clients, which may then further be acquired by decision-makers.¹¹³ This process can be further strengthened by what some authors call the ‘epistemic capture’ and ‘academic capture’, ie unproportionate exposure of experts to arguments and information coming from a specific interest group.¹¹⁴

It is admitted that this kind of capture is difficult to detect and there is no ‘smoking gun’ indicating that cultural capture takes place.¹¹⁵ Also, the proponents of these arguments acknowledge that many of such interactions are natural and impossible to remove.¹¹⁶ Furthermore, assuming that cultural capture between undertakings and decision-makers is possible, one could also assume that the same type of capture could take place between, for example, the academia and decision-makers. While arguments are made today that business makes efforts to influence the academia, in the 1940s, and still at the time when the Chicago School was popularizing its worldview, there was a common argument that ‘intellectuals’ have strong impact on policy-making and that they tend to drift towards more market regulation.¹¹⁷

For the purpose of this article, however, what is more relevant is that it can be reasonably assumed that decision-makers do not operate in a vacuum and that their subjectivity can be influenced by outside actors. Factors such as group identification or overexposure to certain arguments may over time impact the attitude of decision-makers to those elements of ‘antitrust machinery’ that they can move without directly going against recent precedents, yet still in a direction that slowly changes the shape of antitrust enforcement. The theory of cultural capture contributes to explaining adaptive changes in antitrust.¹¹⁸

Individual impact: never let a good story go to waste

While the two previous subsections dealt with large-scale processes, this subsection will explore a more micro-level way in which preferences with regard to factors mentioned in the subsection ‘Moving elements’ may come into being. This micro-level process is storytelling.

It is argued that storytelling might have developed by providing a fitness benefit to individuals or groups.¹¹⁹ That humans crave good stories is recognized in legal research within the Law and Literature movement, with White arguing, for example, that: ‘the fundamental characteristic of human life is that we all tell stories, all the time, about ourselves and others, both in the law and out of it’.¹²⁰ From this angle, law becomes a cultural practice also at the linguistic level. Storytelling may include the use of metaphors, whose role was subject to discussion in both philosophy of science and legal research.¹²¹ It is argued that on the cognitive level, metaphors have a strong impact on how humans perceive reality.¹²²

A good example of how an interesting story impacts the perception of law comes from the area of free speech, which in the subsection ‘Moving elements’ served as a point of reference for workability. Free speech is often explained by the metaphor of the ‘marketplace of ideas’, associated with (but not explicitly mentioned by) Justice Holmes’s opinion in Abrams.¹²³ While free speech can be justified in many ways, the market parallel proved to be highly captivating and thus having an impact on the perception of free speech.¹²⁴ It is subject to serious analysis in free speech scholarship how various metaphors influence the development of case law.¹²⁵

Antitrust is not much different. Earlier in the subsection ‘Moving elements’, this was present in the narrative concerning the proper approach to analysing free speech in antitrust cases: free speech is not ‘peanuts and potatoes’. Indeed, it is not—and this narrative is possibly more captivating than any abstract argument.¹²⁶ A broader review of such metaphors was conducted by Boudin, who observed: ‘metaphor … is often a kind of “invisible hand” that guides events from afar without detection’ and that ‘after case citations and market share figures have faded from memory, the judge or lawyer who has read an antitrust opinion is likely to remember, if anything, a metaphor’.¹²⁷

In EU antitrust law, the room for telling powerful worldview-changing stories is more limited. The Court of Justice of the European Union (CJEU), in particular in antitrust, typically delivers rather succinct grounds for its rulings.¹²⁸ Yet, the EU system also relies on the opinions of Advocates-General. Here, one can indeed identify opinions which might significantly change decision-makers’ perception on issues where the margin for subjectivity is larger.

Advocate-General Kokott’s opinion in T-Mobile is a good example of that.¹²⁹ Generally, the Chicago perspective provided a narrative that prohibition of business conduct with unclear effects is a great evil in antitrust; in the post-Chicago enforcement, this story further led to the adoption of an approach that puts much emphasis on the quantification of harm.¹³⁰ In T-Mobile, Advocate-General Kokott was asked for an opinion on ‘by object’ restrictions. Rather than focus on purely abstract discussion, she made a simple yet impactful parallel: legal systems commonly use straightforward rules that deal with risk. Thus, for example, drunk-driving is prohibited, irrespective of consequences. Indeed, law introduces much inefficiency. Traffic rules are supposed to promote safe but speedy travel, yet one rarely finds it justified to cross the street when the light is red, even if there is no traffic. The idea of people standing and looking at the red light when the road is clearly empty is inefficiency writ large.¹³¹ Looked at from this perspective, the story about uncertainty and risk in antitrust is a much different story than that of chilling competition.¹³²

Such storytelling may also take place outside case law, for example, as a political slogan, in court letters, or legal writing. Joanathan Kanter’s reference to the consumer welfare standard as the ‘central-planning standard’ may serve as an example, radically changing the possible perception of the idea of quantification in antitrust.¹³³ The phrase ‘protecting competition, not competitors’ became an antitrust cliché, even despite the fact that its original meaning might have been more ambiguous than is often assumed (as if in some cases protecting competitors could not serve as a means of protecting competition).¹³⁴ Google introduced the ‘competition is one click away’ slogan.¹³⁵ Margrethe Vestager became known for emphasizing ‘fairness’ in her communication—and was criticized for doing so and introducing ‘romance’ into antitrust.¹³⁶ Arguing for a ‘competitive process standard’, Wu relies on a metaphor of market competition as football, and decision-makers as referees overseeing the process, not the outcome, and thus ‘fan welfare’.¹³⁷ Stucke and Ezrachi, in turn, discuss how undertakings hijacked competition language to promote their own interests and influence decision-makers.¹³⁸ Waller, on the other hand, emphasizes the importance of pop culture narratives in shaping the perception of antitrust enforcement.¹³⁹ This variant of influence is likely closest to the usual, not merely academic, meaning of ‘making memes’.

As in other parts of this article, it should be stressed that the point here is not whether this way of making arguments is objectively correct or not. One could argue that in every powerful story there is much room for heuristics, which itself can be criticized.¹⁴⁰ Yet, the point here is not about right or wrong, but how changes in antitrust actually happen.

5. ANTITRUST IS A STRANGE LOOP

Is antitrust memetic?

This article started with two views on the origin of changes in antitrust: intelligent design and a more evolutionary perspective. The former attaches much weight to ideological considerations, the latter wants to see the shape of antitrust as a relatively ideology-free outcome, primarily based on practical considerations. It was suggested in the introduction that basic intuition suggests that the truth may lie in the middle, with the actually interesting question being the mechanics of changes in antitrust. The discussion in Sections 2–4 formalizes this basic intuition into a more comprehensive framework, in which both the role of ideological and practical considerations are accounted for. From this point of view, to believe that antitrust changed merely because of Chicago’s ideological influence oversimplifies the problem: Chicago must have offered something that was practical enough—at that time it was the focus on economic arguments. However, it would also be an error to ignore the fact that the perception of ‘practicality’ (workability) can be influenced, to some extent, by external factors. The construction here becomes a loop: external factors influence antitrust, but they are themselves influenced by socio-economic conditions, which is the output of antitrust enforcement, resulting from the practical choices of decision-makers.¹⁴¹

The framework that has been sketched so far is by no means complete. However, it offers a different way of looking at a number of arguments that have been made in antitrust in the past few years. To give a few examples: Wu’s simplified observations about decision-makers become more formalized and substantiated in this framework. The framework is compatible and further extends arguments by Hovenkamp and by Kovacic about the Chicago–Harvard synthesis (Chicago was instrumental to changing the paradigm by doing the work discussed in Section 4, but was less successful with the work in Section 3).¹⁴² Under this framework, cultural capture theories (Lancieri, Posner, Zingales, and Broulík) are one of the movers of changes in antitrust, yet not exclusively, highlighting the impact of tacit knowledge acquired through the climate of opinion. The framework can also be seen as supplementing Ezrachi’s metaphor of antitrust as a ‘sponge’ by providing a more dynamic view of why and how this sponge changes its shape. Finally, this framework—provisionally called ‘a theory of antitrust memetics’ in Section 2—questions more directly a different theory that was proposed earlier by Petit, that is the theory of antitrust limits. This article suggests that the ‘limits’ are less objective and less predetermined than one could see them under Petit’s theory.¹⁴³ This memetic account of antitrust sits also better with the developments in the EU in the 1990s, moving the focus of evolutionary changes from the level of case law to the level of cultural changes, and from the problem of dealing with uncertainty to instead of fitting the socio-economic context.

While it is difficult to provide a full exposition of a theory in a single article, the theory of antitrust memetics seems apt for further investigation in future research.¹⁴⁴ Taken more broadly, memetics concerns itself with the study of how ideas spread, and predicting which ideas have more chances of success.¹⁴⁵ Memetics received some attention in complexity studies.¹⁴⁶ Complexity as such has already caught the attention of antitrust researchers.¹⁴⁷ Against this backdrop, an additional complexity-focused research approach could be to enhance the understanding of not just legal and economic concepts within antitrust, but of the antitrust community itself. At this time though, a shorter prescriptive discussion based on the findings of this article is appropriate.

Reformers

Since 2021, the arguments of the reformers, mostly the Neobrandeisians, have enjoyed highly favourable conditions due to personnel changes in top US antitrust institutions. This, however, neither needs to last forever, nor it guarantees success in terms of policy implementation. The framework outlined in this article invites therefore a question of what the reformers seem to do right, and what else could be done to increase their chances of success.

When the reformers started making their arguments, some commentators complained that it was not clear what different way of enforcing antitrust should follow from the reformers’ arguments.¹⁴⁸ The main target of the Neobrandeisian critique was the consumer welfare standard. In retrospect, this strategy might have been more effective than some might have hoped for. From the point of view of the framework outlined in this article, attacking the consumer welfare standard corresponds to the measures that are taken to affect the subjectivity. Had the consumer welfare standard been overturned, antitrust would have changed. Still, even if this had not succeeded, the discussion around the consumer welfare standard could change the status quo.¹⁴⁹ Within the framework presented in this article, the reformers did lay solid foundations for successfully shaping the subjectivity of decision-makers.

However, what still seems to be lacking are proposals of practical implementation. The reformers may hope for ‘things to unfold themselves organically’ after the decision-makers acquire a different ‘taste’ for solving cases (ie that they would come up with ‘some’ approach by merely interacting between themselves within the logic of the process outlined in Section 3). Still, practitioners look for practicality—and the less they are concerned with ideological issues, the more they can be concerned with just having an approach that allows them to keep the system running without too many headaches. This might also serve as a warning for every group of reformers: one may be successful, like Chicago, with shaking the old paradigm to then see the new paradigm being built around something else than advocated by those who became known as the architects of change. When it comes to practical implementations, the European example seems to provide, at this point, better results such as, for example, a slow correction of the abuse of dominance case law so that it provides room for ‘competition on the merits’ arguments, and not merely a narrow effects-based approach.¹⁵⁰

Sceptics

Some sceptics have observed that even today, antitrust cases are argued in terms of consumer harms.¹⁵¹ Yet, this seems to miss the point: if one recognizes (as it was done in the subsection ‘Beneath the surface: the antitrust standards paradox’) that the consumer welfare standard is a flexible concept, one may very well still apply the consumer welfare standard, while the trajectory of changes might already be different.¹⁵² A more realistic assessment seems to be that the antitrust debate has developed not necessarily to the sceptics’ advantage—claims that were once unthinkable and marginalized are now subject to serious debate. This is not the outcome that the sceptics might have hoped for before 2020.

From the point of view of the sceptics, the discussion provided in this article—primarily in relation to the role of subjectivity—might serve as an encouragement to revisit arguments about the causes of social changes, both in scientific research and politics. Kuhn’s argument, referred to earlier, provides a comprehensive account of how changes in such a seemingly ‘objectivity-driven’ communities as that of natural sciences involve much subjectivity, cognitive biases, and how paradigms rise and fall.¹⁵³ Dicey’s and Cardozo’s arguments might supplement this from the point of view of political and legal theory, with Dicey having impact on Friedman, and thus indirectly on the success of Chicago. The ‘memetic’ part of the argument presented above might also be useful: when a paradigm loses its strength, competition between ideas starts anew—the memetic theory, in turn, investigates what makes ideas more attractive.¹⁵⁴ The discussion provided in this article highlights also that the sceptics should not feel overconfident about ‘practicality’ always working towards their advantage.

Silent majority?

Aside from the reformers and sceptics, there are also those who can be called ‘neutrals’, such as academic researchers who do not believe there are any strong objective indicators of an optimal shape of antitrust, indifferent practitioners who treat antitrust merely as a tool to be mastered, and career government officials whose main responsibility is to effectively carry out government policies.

From the point of view of this group, the argument discussed in this article can be taken as redirecting the focus from ‘who is right?’ towards looking at antitrust as a complex process of change. From this angle, the question becomes how to manage this process effectively. For example, taking into account the continuous nature of the process outlined in this article, a useful approach could be to develop enforcement strategies that would make ongoing adaptation to changing circumstances easier.¹⁵⁵ Another example might be that one of the side-effects of deconstructing a paradigm is less consensus within a community—in antitrust, this can be associated with the polarization of the current debate. This, in turn, affects the legitimacy of antitrust enforcement: until a new paradigm forms, there is a greater chance that there will always be one large social group strongly dissatisfied with how antitrust is enforced (ie either the reformers being dissatisfied with antitrust not changing, or the sceptics dissatisfied with antitrust being changed).

A possible role for a neutral in this context might be that of a ‘translator’. Kuhn, for example, notes that when a paradigm falls, a scientific community effectively starts to behave as two different language groups.¹⁵⁶ In this context, he argues that translating one theory into the language of another theory (and the other way around) stimulates reaching a new scientific consensus.¹⁵⁷ To put it in antitrust perspective, the exercise which was suggested in Section 3 shows an example of translating a non-economic value (free speech) into the consumer welfare standard paradigm (free speech as quality).¹⁵⁸ One should be realistic here though: such a simple exercise is not a cure to all problems—differences will remain. Yet, it is a starting point for consensus-building and mending a schism.

Another area of interest for the neutrals might be antitrust institutions (agencies, courts). The reasoning here might be the following: (i) antitrust involves subjectivity, which however remains largely similar when a paradigm emerges; (ii) however, when a paradigm weakens, there is more disunity and in consequence, legitimacy suffers; (iii) to better navigate this difficult period, antitrust institutions need to be responsive to those developments. Responsiveness does not necessarily mean that antitrust needs to change specifically the way it is argued by the proponents of a new approach. Conversely, as mentioned earlier, such responsiveness might include the role of a translator and facilitator of a new consensus. Against this backdrop, one could question whether it is an optimal arrangement to allocate policy decisions to courts. Courts hear cases deciding on issues that are formally presented as legal arguments, without much room to manoeuvre on what issues and when they are going to comment on. Furthermore, courts hear specific cases—reviewing broad ranges of issues or examples within the framework of a single case is unrealistic. Other issues have been covered, at least in the USA, within the discussion about the Chevron doctrine.¹⁵⁹ While the Chevron doctrine originates from the USA, the tension that underlies it (the role of courts versus agencies) remains relevant also from the European point of view.¹⁶⁰ The Chevron doctrine is now supported by the reformers, making it a more difficult area to discuss by those who wish to remain neutral.¹⁶¹ Still, from a European perspective, which is less concerned with internal political divisions in the USA, what might be of interest in the Chevron-related debate is further research into how administrative agencies might better handle changes in antitrust—this includes: strengthening the legitimacy of independent technocratic agencies, designing participatory mechanisms, and ensuring good governance.¹⁶²

6. CONCLUSION

This article explored a different way of looking at antitrust than is usually the case. It started with two perspectives: intelligent design and a more evolutionary approach, which in political theory is associated with invisible-hand explanations. In antitrust, such an invisible-hand explanation would mean that much of how antitrust looks comes from bottom-level practical considerations aimed at making its enforcement workable. This would also mean that attempts to change antitrust by political will alone would encounter a serious obstacle. The aim of the article was thus to provide a better description of how changes in antitrust take place by looking closer at this hypothesis.

The discussion above offers a more nuanced account of what might be driving changes in antitrust. This more nuanced explanation has been provisionally called a ‘memetic’ view on antitrust. As argued in this article, a more bottom-up, evolutionary outlook of antitrust enforcement should not be completely dismissed. There are compelling reasons—rooted both in common sense and legal realism—to believe that decision-makers may be motivated by different considerations than those of any ‘designer’ of a perfect antitrust system. Having a margin of appreciation in both deciding cases and defining practical rules of adjudication, they may alter the shape of antitrust from the bottom-up to an appreciable extent. However, this article also provided a more critical account of how the subjectivity of decision-makers might be shaped by external factors. This, in turn, means that the movement of antitrust under the more evolutionary, practicality-oriented, perspective should not be taken as pre-determined and always leading to the same result, for example a narrow Chicago-style enforcement. This point should be relevant to the antitrust reformers, sceptics, and also those more neutral in the current antitrust debate; however, each group may find it important for different reasons, as outlined earlier.

More generally, what may ultimately follow from the exercise conducted in this article is that given that there is always room for evolutionary changes in antitrust resulting from decentralized actions taken by decision-makers, one may have far less agency over the final product than one could wish. And as ‘time has upset many fighting faiths’, the main conclusion from this discussion might be that antitrust will keep changing and probably no antitrust project will last forever.¹⁶³ Antitrust passions do not fade; they are driven by ever-changing antitrust memes.

Footnotes

ACKNOWLEDGEMENTS

The views expressed in this text are the author’s own and do not necessarily reflect those of the Polish Office of Competition and Consumer Protection (UOKiK). The author discloses that he was involved in drafting the Polish Competition Authority’s OECD position referred to in this article. The author would like to express his gratitude to two anonymous reviewers who commented on this article in November 2024, and to two anonymous reviewers who had provided comments on an earlier version of this article in March–June 2024. An earlier version of this article had also been presented at the ‘Modern Bigness Conference’, held on 4–5 April 2024, in Utrecht; the author would like to thank all conference participants for their comments, in particular Oliver Budzinski for his comments about philosophy of science. The author would also like to thank Anna Gerbrandy, Pauline Phoa, and Eva Lachnit for the opportunity to discuss various drafts of this article in 2023–24.