ASPEN, Colo.--It must be a bit irksome being an antitrust regulator in the United States when your European counterparts are (a) more likely to interfere with the private sector and (b) look disdainfully at federal agencies as wishy-washy.
Which is probably why William Kovacic, one of the Federal Trade Commission's five members, spent nearly an hour on Monday defending the American approach as reasoned and no less thorough than that of its cross-Atlantic counterparts. There is a "tendency on the part of our European colleagues to dismiss the U.S. experience," he said.
(It should be noted at this point that the FTC is in the midst of deciding whether or not to approve Google's planned acquisition of DoubleClick. The FTC tried unsuccessfully to obtain an injunction blocking the Whole Foods-Wild Oats merger, which a federal judge denied this week. And the Federal Communications Commission is currently reviewing the XM-Sirius merger.)
U.S. antitrust thinking has been inspired, Kovacic said, not only by the so-called Chicago School of law and economics but also the Harvard school of thought led by luminaries like the late professor Phil Areeda. "To really understand the DNA of modern competition law you have to look at the mutually reinforcing strands of both schools," Kovacic said.
Kovacic, who was speaking over lunch at this year's Aspen Summit organized by the Progress and Freedom Foundation, noted the FTC was more active now in antitrust cases than at any point since the 1970s.
Kovacic seemed noticeably more enthusiastic about antitrust enforcement than he was a decade ago when I audited his antitrust law class at George Washington University in Washington, D.C. nearly a decade ago. (He's on leave from his teaching gig.)
For instance, Ed Black, the head of the Computer and Communications Industry Association and an undeniable fan of aggressive antitrust enforcement, asked whether it's a good idea for federal agencies to have a "little more involvement upfront in a regulatory approach because remedial antitrust action later on is too late."
Kovacic agreed, saying "a sensible comeptition policy involves both tools." He added that, when it comes to the courts, "our views resonate when we can point to a base of knowledge...that we thought through the issue in question."