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Numerous observers, from all sides of the political spectrum, have proposed alternatives to economic efficiency as objectives for antitrust enforcement and decisions. A list includes fairness, inequality, labor share of income, jobs, effect on competition (apart from consumer welfare), consumer choice, promoting democracy, concentration of political power, globalization, domestic control over resources, media veracity, environmental protection, managerial competence, and mitigating consumer error. Three factors raise general doubts about the merits of doing so. One is that antitrust is sufficiently complex and that adding additional factors to balance may make it even less comprehensible to the general public (and even experts). A second is that other policies are available to pursue these alternatives that are both better designed to do so and are not subject to the vagary of whether a particular firm or sector might be involved in an antitrust violation. The third is that antitrust ought not be distracted from its economic efficiency mission, since there is no other economy wide tool for promoting economic efficiency. Those considerations and others are used to assess the potential effectiveness of incorporating each of these alternatives into antitrust enforcement and adjudication. Many of these alternatives may be a side benefit of antitrust enforcement, but not a factor that antitrust enforcers and courts can be expected to sensibly trade off against economic efficiency.

Prof. Markovits has been a prescient commenter on antitrust. His early and insightful characterization of the harm from merger as the loss to consumers from being able to trade off their two top choices can be seen in the use of diversion ratios in unilateral effects merger cases. So too does the change in assessing unilateral effects mergers from market concentration to direct measurement of competitive effects match his skepticism of market definition. I share Prof. Markovits's view that prior dominance should not be a prerequisite for monopolization cases, at least those involving exclusionary practices. I am skeptical that intent should play a role in monopolization, other than as a source of expert evidence that a practice will be harmful. Whether antitrust should be about maximizing consumer welfare or punishing powerful actors with bad intent may be a fundamental divide in perspective in the antitrust community.

With the increasing technical sophistication in economic theory and econometric estimation, antitrust assessments have become increasingly complex. Calls to incorporate additional considerations such as business strategy, managerial acumen, externalities, and consumer error would add to this complexity. Such technical advancements and added dimensions to assessments come at a cost. Business managers require expensive legal and economic consultation to ascertain if a proposed practice, merger, or venture may violate the antitrust laws. Judges and juries face similar difficulties in determining liability. The pendulum perhaps should shift back toward simplicity. Simplicity is consistent with different views regarding strict or loose concentration standards, the role of intent, or criteria for per se legality or illegality of various practices. Recognizing simplicity may reopen historical debates over whether economic welfare or other considerations—political power, the right to ply one's trade, the "competitive process" —should define the objectives of a more easily comprehended antitrust law.

Abstract:Behavioral economics posits a number of cognitive biases and limitations, which raises questions as to whether revealed willingness to pay equals true willingness to pay. If so, benefit-cost analysis, with a number of methodological advantages, would need to be replaced. Prior analyses of the issue by Sunstein, Sugden, and Bernheim and Rangel fail to offer guidance that would avoid substituting centralized judgments for decentralized information on benefits and costs. Alternatives including using post-implementation valuations, libertarian paternalism, and direct democracy on policy issues also have conceptual or practical limitations. A tentative suggestion is democratic delegation, somewhat appealing because it is already applied to cope with bounded rationality and non-efficiency values. Viewing benefit-cost analysis as a market analogue, and restricting the domain of behavioral economics to uninformed consumers, may be useful guides. The most important guidance may be to require very strong evidence of substantial choice failure before abandoning benefit-cost analysis.

Abstract Climate policy planners and the public should be aware of both economic challenges and arguments that may influence the intensity of the climate policies with which they have to cope. This article examines six economic challenges: cap‐and‐trade versus taxes, non‐price regulations, energy efficiency policies, mitigation versus adaptation, trade effects, and transmission planning. Three additional challenges affect the end itself: 'fat tails', discount rates, and whether environmental protection should be evaluated by willingness to pay. If future generations cannot compensate the present for climate policy costs, climate policy is inherently redistributive and cannot be evaluated through cost–benefit analysis alone.