Debates among modern antitrust experts focus primarily on the appropriate indicia of anticompetitive behavior, the particular methodologies that should be applied in assessing such conduct, and the best combination and calibration of antitrust sanctions (fines, jail terms, injunctive relief, cease and desist orders).  Given a broad consensus that antitrust rules should promote consumer welfare (albeit some disagreement about the meaning of the term), discussions tend (not surprisingly) to emphasize the welfare effects of particular practices (and, relatedly, appropriate analytic techniques and procedural rules).  Less attention tends to be paid, however, to whether the overall structure of enforcement policy enhances welfare.

Assuming that one views modern antitrust enforcement as an exercise in consumer welfare maximization, what does that tell us about optimal antitrust enforcement policy design?  In order to maximize welfare, enforcers must have an understanding of – and seek to maximize the difference between – the aggregate costs and benefits that are likely to flow from their policies.  It therefore follows that cost-benefit analysis should be applied to antitrust enforcement design.  Specifically, antitrust enforcers first should ensure that the rules they propagate create net welfare benefits.  Next, they should (to the extent possible) seek to calibrate those rules so as to maximize net welfare.  (Significantly, Federal Trade Commissioner Josh Wright also has highlighted the merits of utilizing cost-benefit analysis in the work of the FTC.)

Importantly, while antitrust analysis is different in nature from agency regulation, cost-benefit analysis also has been the centerpiece of Executive Branch regulatory review since the Reagan Administration, winning bipartisan acceptance.  (Cass Sunstein has termed it “part of the informal constitution of the U.S. regulatory state.”)  Indeed, an examination of general Executive Branch guidance on cost-benefit regulatory assessments, and, in particular, on the evaluation of old policies, is quite instructive.  As stated by the Obama Administration in the context of Office of Management regulatory review, pursuant to Executive Order 13563, retrospective analysis allows an agency to identify “rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.”  Although Justice Department and FTC antitrust policy formulation is not covered by this Executive Order, its principled focus on assessments of preexisting as well as proposed regulations should remind federal antitrust enforcers that scrutinizing the actual effects of past enforcement initiatives is key to improving antitrust enforcement policy.  (Commendably, FTC Chairwoman Edith Ramirez and former FTC Chairman William Kovacic have emphasized the value of retrospective reviews.)

What should underlie cost-benefit analysis of antitrust enforcement policy?  The best approach is an error cost (decision theoretic) framework, which tends toward welfare maximization by seeking to minimize the sum of the costs attributable to false positives, false negatives, antitrust administrative costs, and disincentive costs imposed on third parties (the latter may also be viewed as a subset of false positives).  Josh Wright has provided an excellent treatment of this topic in touting the merits of evidence-based antitrust enforcement.  As Wright points out, such an approach places a premium on hard evidence of actual anticompetitive harm and empirical analysis, rather than mere theorizing about anticompetitive harm (which too often may lead to a misidentification of novel yet efficient business practices).

How should antitrust enforcers implement an error cost framework in establishing enforcement policy protocols?  Below I suggest eight principles that, I submit, would align antitrust enforcement policy much more closely with an error cost-based, cost-benefit approach.  These suggestions are preliminary tentative thoughts, put forth solely to stimulate future debate.  I fully recognize that convincing public officials to implement a cost-benefit framework for antitrust enforcement (which inherently limits bureaucratic discretion) will be exceedingly difficult, to say the least.  Generating support for such an approach is a long term project.  It must proceed in light of the political economy of antitrust and more specifically the institutional structure of antitrust enforcement (which Dan Crane has addressed in impressive fashion), topics that merit separate exploration.

First, antitrust enforcers should seek to identify and expound simple rules they will follow in both case selection and evaluation of business conduct, in order to rein in administrative costs.

Second, borrowing from Frank Easterbrook, they should place a greater emphasize on avoiding false positives than false negatives, particularly in the area of unilateral conduct (since false positives may send cautionary signals to third party businesses that the market cannot easily correct).

Third, they should pursue cases based on hard empirically-based indications of likely anticompetitive harm, rather than theoretical constructs that are hard to verify.

Fourth, they should avoid behavioral remedies in merger cases (and, indeed, other cases) to the greatest extent possible, given inherent problems of monitoring and administration posed by such requirements.  (See the trenchant critique of merger behavioral remedies by John Kwoka and Diana Moss.)

Fifth, they should emphasize giving full consideration to efficiencies (including dynamic efficiencies), given their importance to innovation and economic welfare gains.

Sixth, they should announce their positions in public pronouncements and guidelines that are as simple and straightforward as possible.  Agency guidance should be “tweaked” in light of compelling new empirical evidence, but “pendulum swing” changes should be minimized to avoid costly uncertainty.

Seventh, in non per se matters, they should pledge that they will only bring cases when (1) they have substantial evidence for the facts on which they rely and (2) that reasoning from those facts makes their prediction of harm to future competition more plausible than the defendant’s alternative account of the future.  (Doug Ginsburg and Josh Wright recommend that such a standard be applied to judicial review of antitrust enforcement action.)

Eighth, in the area of cartel conduct, they should adjust leniency and other enforcement policies based on the latest empirical findings and economic theory, seeking to pursue optimal detection and deterrence in light of “real world” evidence (see, for example, Greg Werden, Scott Hammond, and Belinda Barnett).

Admittedly, these suggestions bear little resemblance to recent federal antitrust enforcement initiatives.  Indeed, Obama Administration antitrust enforcers appear to me to have been moving farther away from an approach rooted in cost-benefit analysis.  The 2010 Horizontal Merger Guidelines, although more sophisticated than prior versions, give relatively short shrift to efficiencies (as Josh Wright has pointed out).  The Obama Justice Department’s withdrawal in 2009 of its predecessor’s Sherman Act Section Two Report (which had emphasized error costs and proposed simple rules for assessing monopolization cases) highlighted a desire for “aggressive enforcement,” without providing specific guidance for the private sector.  More generally, an assessment by William Shughart and Diana Thomas of antitrust enforcement in the Obama Administration’s first term concluded that antitrust agency activity had moved away from structural remedies and toward intrusive behavioral remedies “in an unprecedented fashion,” yielding suboptimal regulation – a far cry from cost-beneficial norms.

One may only hope (which after all makes “all the difference in the world”) that Federal Trade Commission and Justice Department officials, inspired by their teams of highly qualified economists, may consider according greater weight to cost-benefit considerations and error cost approaches as they move forward.

 - Alden Abbott is the Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and the John, Barbara, and Victoria Rumpel Senior Legal Fellow at the Heritage Foundation.