What Is an Antitrust Problem, Anyway? Toward Antitrust Unlimited

• DOI: http://doi.org/10.1177/0003603X231163214
• Published date: 01 June 2023
• Date: 01 June 2023

https://doi.org/10.1177/0003603X231163214

The Antitrust Bulletin

2023, Vol. 68(2) 191 –204

© The Author(s) 2023

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DOI: 10.1177/0003603X231163214

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Article

What Is an Antitrust Problem,

Anyway? Toward Antitrust Unlimited

Salil K. Mehra*

Abstract

What is it we talk about when we talk about antitrust? Frequently, a call for antitrust action at the

frontier of the field is met by the response that the issue in question is “not an antitrust problem.”

Things we were told pre-2020 were not “antitrust problems,” it ran the gamut from “patent holdup”

and forcing a buyer to take an unwanted product to fake news and privacy breaches. Surprisingly,

however, “antitrust problem” is not a well-defined term. As this has been pointed out, U.S. antitrust

law as it exists today does not punish all ends that injure consumer welfare—for example, it is explicitly

legal to possess a monopoly, and to use it to restrict output and charge monopoly prices. Nor does

antitrust punish all means that injure consumer welfare—fraud and deception can injure consumer

welfare, but without more they are not actionable under the antitrust laws. Post-2020, we find

ourselves in an era in which policymakers are asking, not without some pushback, whether economic

inequality, racial disparities, and decades of falling or stagnant wages can and should be addressed

as problems by antitrust law. To define “antitrust problem,” we must consider what antitrust is

ultimately supposed to protect: the benefits for Americans of a national economic system based on

market competition. Displacing such a system, and thereby depriving consumers of the benefits of

such a system, is at the heart of what antitrust was designed to accomplish—even if contemporary

antitrust doctrine paints in much narrower brushstrokes.

Keywords

antitrust, competition, consumer welfare, inequality, race, labor

I. Introduction

What is it we talk about when we talk about antitrust?1 Frequently, a call for antitrust action at the

frontier of the field is met by the response that the issue in question is “not an antitrust problem.”2

*Charles Klein Professor of Law and Government, James E. Beasley School of Law, Temple University, Philadelphia, PA, USA

Corresponding Author:

Salil K. Mehra, Charles Klein Professor of Law and Government, James E. Beasley School of Law, Temple University,

Philadelphia, PA 19122, USA.

Email: smehra@temple.edu

1163214ABXXXX10.1177/0003603X231163214The Antitrust BulletinMehra

research-article2023

1. Apologies to Raymond Carver.

2. Makan Delrahim, Assistant Attorney General, Remarks as Prepared for Delivery at University of Pennsylvania Law

School: The “New Madison” Approach to Antitrust and Intellectual Property Law (Mar. 16, 2018), https://www.justice.

gov/opa/speech/file/1044316/download.