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Experts debate antitrust law enforcement benefits

Experts debate whether antitrust law enforcement should go beyond promoting competition and focus on other factors.

WASHINGTON -- Antitrust law aims to promote competition, but regulators should look beyond pricing and consider broader implications of how anti-competitive behavior negatively affects labor and product quality.

Market competition is not just about lower prices, but a growing sphere of factors including labor and product quality that federal enforcers should take into account when enforcing antitrust law, said Kate Konopka, deputy attorney general for the District of Columbia. Konopka was speaking during the American Antitrust Institute's 23rd annual policy conference called "Bringing and Litigating Antitrust Cases in an Era of Change."

Enforcers can "broaden the way in which we are framing the competition discussion," she said.

"We've seen a huge introduction of quality into the analysis, which really brings a lot of these ideas into play, in terms of what is the quality of a workplace, what is the quality of product," Konopka said during a panel session.

Labor markets

As part of a joint effort to bolster antitrust enforcement, the Federal Trade Commission (FTC) and the U.S. Department of Justice (DOJ) are revising merger guidelines that will help the federal enforcers determine whether the U.S. will challenge a proposed merger or bring an antitrust case. "Many industries across the economy are becoming more concentrated and less competitive," the two agencies said in a joint statement in January.

Konopka said the attorney general's office commented on merger guidelines currently under review by the FTC and DOJ, urging the enforcers to consider labor in their antitrust merger analysis. The attorney general's office has seen labor as a "huge place for antitrust enforcement" for years, she said.

The White House has argued that anti-competitive behavior can lead to negative effects on the labor market, including suppressed wages and increased use of noncompete agreements limiting worker mobility.

"Ultimately, a place where we could have a much larger impact potentially on our residents much faster and much more directly is in throwing our weight behind the idea that labor markets are antitrust markets," Konopka said.

Though labor could be a factor that's considered in an antitrust analysis, Eric Posner, counsel to the assistant attorney general in the DOJ's antitrust division, said there are other laws that protect labor markets.

"There is this very close and complicated relationship between labor law and antitrust law that has to be maintained," Posner said.

Beyond competition

Joshua Davis, a research professor at the University of California Hastings College of the Law and another speaker on the panel, wants to push the envelope on antitrust law enforcement, which he believes can be used to achieve goals beyond competition -- including reducing racism.

If you get to a point where you're saying other goals are more important than competition, you've left the body of antitrust law.
Kate KonopkaDeputy attorney general, District of Columbia

Davis acknowledged that antitrust laws "are not designed to do it all." However, he said the question is how far to push antitrust law, particularly when it comes to the market "inefficiency" of racism and how antitrust law enforcement can be used to affect that.

Davis said a racist employer "is not going to be picking the best people to work," and "when you don't get the best people, that should make it more difficult for you to compete in the market."

Yet Posner said whether antitrust enforcement and the markets could reduce racism isn't quite so clear-cut.

"At the same time that it's true that greater antitrust enforcement should -- over time, if it leads to more competitive markets -- reduce the amount of racist behavior by firms, it wouldn't get rid of racism altogether, obviously," Posner said. "For that, non-antitrust law is required."

Konopka said enforcers have to tread carefully when it comes to the idea of antitrust law promoting goals such as reducing racism while keeping its main goal of promoting competition at the forefront.

"If you get to a point where you're saying other goals are more important than competition, you've left the body of antitrust law," Konopka said.

Makenzie Holland is a news writer covering big tech and federal regulation. Prior to joining TechTarget, she was a general reporter for the Wilmington StarNews and a crime and education reporter at the Wabash Plain Dealer.

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