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Wickelgren, Abraham L. --- "Issues in Antitrust Enforcement" [2012] ELECD 223; in Elhauge, R. Einer (ed), "Research Handbook on the Economics of Antitrust Law" (Edward Elgar Publishing, 2012)

Book Title: Research Handbook on the Economics of Antitrust Law

Editor(s): Elhauge, R. Einer

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848440807

Section: Chapter 10

Section Title: Issues in Antitrust Enforcement

Author(s): Wickelgren, Abraham L.

Number of pages: 16

Extract:

10 Issues in antitrust enforcement
Abraham L. Wickelgren


I INTRODUCTION

While the literature on what antitrust law should and should not prohibit is vast, the
literature on how best to enforce these laws is much smaller. That said, in recent years,
there have been some important developments in the literature on optimal antitrust
enforcement. While far from a comprehensive survey, this chapter discusses the literature
on several issues in antitrust enforcement.
The next section in the chapter addresses the proper balance between public and private
enforcement; that is, it examines the relative strengths of and weaknesses of public and
private enforcement and attempts to shed some light on the circumstances in which one
mode of enforcement is likely to be preferable to another. The following sections all
discuss issues related to optimal enforcement by a public agency. Section III discusses the
optimal welfare standard that a public antitrust enforcement agency (or a court) should
use in evaluating potentially anticompetitive conduct. The two leading candidates are
the total welfare standard (evaluating the effect on all players, including the benefits to
the firms involved in the conduct), often advocated by economists, and the consumer
welfare standard (only considering the effect of the conduct on consumers), which is
most commonly used by regulators and courts. Section IV discusses the optimal timing
of antitrust enforcement. An antitrust authority can either review and decide whether or
not to prohibit conduct before it is undertaken (ex ante enforcement, commonly used in
merger enforcement) or wait until ...