For months now, the Treasury Department has been grappling with the consequences of “Too Big to Fail” — the idea that some enterprises are too large to allow to fail. Now here’s comes the Justice Department with “Too Big To Succeed,” the idea that some firms are too large to allow to suceed.
That at least is the implication of a policy change announced this week by new DOJ Antitrust Division chief Christine Varney. Specifically, in two speeches, she renounced a report developed by the Bush DOJ last year on monopolization law. That law, enacted as section two of the 1890 Sherman Act, is famously broad, making it illegal to “monopolize.” But finding the fine line between forbidden monopolization and pro-competitive success is a difficult if not impossible task.
Courts have long recognized the danger of making size alone — and by implication success in the marketplace — illegal. Instead, monopolization cases must rely on specific improper actions. Even these, however, are tricky. As shown in the 1990’s DOJ prosecution of Microsoft — delineating unfair competition from tough competition is not easy.
Because of these very real concerns, the Bush report articulated policies to protect against overzealous enforcement of section two, urging that claims be based on objective criteria and identifying types of conduct that typically enhances rather than harms consumer welfare.
Antitrust chief Varney has now rejected this report. In strongly-worded speeches she specifically stated that it no longer represents Department policy. Remarking favorably on federal antitrust policies of the 1940s, she then calls for more “vigorous” antitrust enforcement, stating that “…as antitrust enforcers, we cannot sit on the sidelines any longer – both in terms of enforcing the antitrust laws and contributing to sound competition policy as part of our nation’s economic strategy.”
Oddly, she points to the current financial crisis in support of this change, arguing “inadequate antitrust enforcement” contributed to the current conditions. But wait a second. No amount of stretching can make the financial crisis a problem of monopolization. Whatever else went wrong — and a lot did — no one monopolized anything. If anything, the crisis shows that no firm is so big it can’t fail (unless of course the government intervenes).
In any case, indications are that Varney’s first targets won’t be in the financial industry. Instead, the folks in Silicon Valley are likelier targets. And number one on the most wanted list is probably Google (which has taken Microsoft’s place among the too-big-to-succeeders).
Don’t expect Varney to talk much, though, about the evils of Silicon Valley. Most Americans know that more innovation and consumer benefits come out of there in a year than out of Washington in a century. Expect the rhetoric to stay on the evils of Wall Street.
But either way, when the lawsuits start flying, it is the consumer who will lose.