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The perennial challenge of antitrust enforcement is to be true to laws passed to protect competition (and ultimately consumers), but to do so without undermining the growth and innovation that are central to our capitalist economic system. Ever since the passage of the Sherman Act of 1890, businesses have benefitted from an economic system that supports and encourages building the proverbial “better mouse trap”; but they have had to bear in mind legal penalties for conducting business in a fashion that would harm the public with such things as collusive acts aimed to fix prices or limit supplies that result in unfairly raising prices for consumers.

At times, the federal government’s regulatory and enforcement arms over antitrust—the Department of Justice Antitrust Division (DOJ) and the Federal Trade Commission (FTC)—have acted aggressively, particularly (and understandably) after the Stock Market Crash of 1929 and the ensuing Great Depression. During the early to mid-20th century, federal courts tended to use a “per se” illegality approach when examining certain actions, such as horizontal price-fixing or group boycotts; in all likelihood, they did this because the laisse faire philosophy of business regulation appeared to have been discredited by the stock market crash. Towards the latter part of the 20th century, with a more stable economy and a conservative cultural shift, antitrust jurisprudence moved towards a “rule of reason” analysis of alleged antitrust violations.

For some observers, the shift merely reflected a political movement stemming from the election of more conservative U.S. presidents who in turn appointed more conservative judges less inclined to automatically hold certain transactions illegal. Whatever the reason for the shift, these late 20th-century judges preferred a rule of reason approach because it involved a more reasoned and holistic analysis compared with the per se approach it supplanted. The rule of reason approach has continued to be the standard in most antitrust cases.

Recent antitrust officials, such as FTC Chair Lina Khan, have revived the more aggressive approach, but that approach faced criticism for stifling innovation and economic growth. New DOJ Antitrust Division chief Gail Slater suggests she will lead by taking a less political, more traditional antitrust approach, and that under her leadership, “the goal of the Justice Department’s Antitrust Division will be to ensure the law is enforced both vigorously and fairly, with clear rules.” Such an approach would be both refreshingly new and consistent with traditional antitrust frameworks, though it has not been followed by previous antitrust enforcement leadership.

Whereas Chair Khan was roundly criticized for abusing “authority at the agency, trampling on the due process rights of regulated parties, upending the rule of law, and violating ethics standards,” Slater’s testimony before the Senate promises a more balanced and reasonable approach seeking to protect both competition and consumers while not stifling innovation. Slater testified, “I too am concerned that anti-competitive behavior has negative effects on small and independent businesses, including those in agriculture. I will make agriculture antitrust issues a priority, and I look forward to working with the Department of Agriculture on these important issues.” And at the same time, she stated she was “absolutely committed to making America competitive again by vigorously and fairly enforcing antitrust law.”

If she follows through on these promises, the Justice Department’s Antitrust Division will strike that all-important balance between protecting consumers and ensuring American business remains competitive.

Sound antitrust enforcement must attempt to strike a delicate balance between protecting competition and consumers and not stifling capital growth and innovation. Companies must be allowed space to innovate and improve even as antitrust enforcers vigilantly guard against anticompetitive conduct. Both the DOJ and FTC need to follow traditional antitrust jurisprudence and do so in an ever-changing and increasingly competitive global marketplace. It appears Slater has the experience and approach to achieve that balance.