The Economist January 29th 2022 Leaders 11
E
ver sinceits first antitrust law passed in 1890, America has
argued over what trustbusting is for. One school, named after
Louis Brandeis, a judge, holds that big companies must be tamed
because they corrupt politics and damage customers, competi
tors and staff. The other says the goal of antitrust is to protect the
welfare of consumers, which can be enhanced by big, efficient
firms. For decades the consumer approach has been ascendant,
but now the consensus has frayed and trustbusters are heading
in a Brandeisian direction. This is a mistake. Competition policy
needs reforms, to correct past failings and to
adapt to the digital economy. Yet it should con
tinue to be based on the principle that consum
ers are what count.
A shift towards more politicised and expan
sive antitrust is taking place across the rich
world. President Joe Biden has appointed trust
busters, such as Lina Khan (pictured) at the Fed
eral Trade Commission, who are exploring new
responsibilities like protecting small firms or workers. Since the
1990s the euhas tended to put consumers’ interests first, but
now its commissioner wants to apply a “broader notion” of
harm. Lawmakers everywhere are redrafting rules to constrain
technology firms, even when their products are popular and
free. On January 20th America’s Senate Judiciary Committee ap
proved, with bipartisan support, a bill that would ban tech
giants from using their platforms to favour their own services.
The change is happening because competition policy has
fallen short. In America the consumer welfare standard is asso
ciated with rulings that make it difficult for trustbusters to win
in court unless they can meet abstruse legal tests proving that a
firm has raised or will raise prices. Competition authorities have
lost cases they should have won, such as when Sprint and tMo
bile merged, taking the number of mobile networks down to
three. The authorities became gunshy about bringing cases. Be
tween the 1990s and 2010s the average number of mergers inves
tigated per year by the Department of Justice fell from 180 to 70,
despite frantic industry consolidation. Sleepy
trustbusters missed the rise of big tech.
The new expansive and strident approach is
tempting, but it did not work well in the past.
Standing up for consumers, who are diffuse,
does not come naturally to politicians who tend
to indulge vocal and concentrated interests,
such as incumbent firms, lobbyists and unions.
Before the consumer welfare standard emerged
in legal judgments in the 1970s and 1980s, America’s trustbust
ing was capricious. In 1949 the government won a case against a
grocery chain, a&p, whose low prices led a government lawyer
to accuse it of being “a gigantic blood sucker, taking its toll from
all levels of the food industry”. In 1967 the Supreme Court ruled
that firms that started a price war by shipping cheap pies into
Utah had acted illegally. Europe shows how trustbusters can be
clueless. What purpose was served in 2005, when the euforced
Microsoft to release a version of the Windows operating system
Competition policy should protect consumers, not anyone else. But it should do so more competently
All-consuming
Trustbusting
armed forces and leader of the junta, has launched a campaign
of mass bloodletting. Soldiers have razed entire towns and mas
sacred civilians. The unsays the army’s attacks against civilians
are crimes against humanity. Some ordinary Burmese have tak
en up arms, unleashing violence across the country. About
400,000 people have fled their homes.
Yet the world is forgetting about Myanmar. The West is dis
tracted by domestic squabbles, an increasingly bellicose China
and the prospect of a new war in Europe (see previous leader).
India and China, Myanmar’s biggest neighbours, are loth to get
involved. The tencountry Association of SouthEast Asian Na
tions (asean) is divided over how to handle its most trouble
some member. Its strongest response so far has been to ban Gen
eral Min Aung Hlaing from its summits—a big step by its stan
dards, but a negligible one when set against what is needed.
By remaining silent, Myanmar’s neighbours do themselves
no favours. Tens of thousands of refugees are pouring into Thai
land and India. Violence and drugs are spilling over borders, too.
Methamphetamine is flooding SouthEast Asia as drug cartels
take advantage of the chaos to raise production. Resistance
fighters angry at what they perceive as China’s support for the
junta are attacking Chinese investments, including a nickel
plant and pipelines that carry oil and gas from the Bay of Bengal.
Even if Western countries are reluctant to get involved, they
can help bring the junta to the negotiating table. On January 26th
America warned businesses of “significant reputational, finan
cial and legal risks” of working in Myanmar. America and Eu
rope have placed sanctions on generals, the companies they
control and some state enterprises. They should also target the
state agency that collects revenues from oil and gas compa
nies—an industry that is the regime’s biggest source of foreign
currency. Firms with links to the junta should divest.
Such measures are only the start. Previous juntas brushed off
Western pressure. Myanmar’s Asian neighbours have more in
fluence. But India is worried about ceding the advantage to Chi
na, so it continues to sell weapons to the junta and remains offi
cially closed to refugees. China, the country with most sway over
the generals, is unhappy. It is thought to be quietly pressing
them to release Aung San Suu Kyi, the democracy activist who
led the government that the generals toppled. Deposed mps from
her party have formed a shadow government and are coordinat
ing resistance to the junta. China has already asked this rival
government to restrain the rebels attacking Chinese invest
ments. It would be wise to hedge its bets still more.
asean, too, should be braver, by suspending Myanmar’s
membership. The junta is in a precarious position. Its troops are
stretched thin. Despite a year of fighting, it has not crushed the
resistance. Dissent is growing in the ranks. asean and China
claim to cherish stability, yet they are propping up a junta whose
efforts to cling to power are unsettling the region. If doing what
is right is not motive enough, Myanmar’s neighbours shoulddo
what is in their interests, and strive for a return to democracy.n