For a policy that is now, by federal statute, well over 100 years old, antitrust is surprisingly unsettled. It is not publicly controversial; there is no great groundswell to, say, amend the Sherman Act. It would awake many thousands of journalists were a presidential debate to feature an inquiry as to the candidate’s view of the Herfindahl Index as an appropriate measure of market power, even as it might make many in this room swell with pride. The controversy exists at the analytical level. When Robert Crandall and Cliff Winston review an impressive history of leading U.S. antitrust cases, they find no evidence that the legal regime improves economic efficiency. Jonathan Baker, embarking on a parallel mission, arrives at a distinct conclusion. There is no consensus among economic experts on even this most basic of questions. One consensus has been reached, however, and it is that the antitrust agencies have under-invested in analytical assessment of regulatory results. Dennis Carlton notes the “dearth” of “quantitative measures and studies,” while hearing a “frequent call for retrospective studies.” His plea for empirical analysis to better inform institutions is sound. The antitrust agencies should more systematically create and incorporate “battle assessment” reports. The practice should evaluate a range of regulatory actions some years ex post. Researchers should estimate dp and dq, incorporating quality changes and shifting (exogenous) economic conditions, in markets subject to antitrust regulation. Empirical evaluation should take special care to isolate the changes the associated with regulatory intervention in merger cases, or lack thereof. The sample investigated should include mergers, mergers blocked, and mergers blocked by the agency and then permitted by the courts. Such research is sorely lacking; there is little hard evidence produced by the antitrust enforcement agencies that their policies on net promote consumer welfare, nor on the myriad incremental trade-offs – how resources should be allocated across enforcement agency functions – imposed by real-world constraints.
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