In the late 1980s and early 1990s, antitrust
was widely seen as an antiquated topic, but things have changed
dramatically in the last few years. Antitrust seems to be entering
a new golden age.
The antitrust action against Microsoft is only the most visible
sign of the revived interest. Europe's scrutiny of mergers and
proposed mergers, including Boeing-McDonnell Douglas and MCI
WorldCom-Sprint, indicate that the new trend is not confined
to the United States.
One of the realities of globalization, however, is that markets
are no longer constrained by national borders. The most important
challenge facing U. S. antitrust advocates is adapting to the
global economy a body of law that was designed primarily for
dealing with a national economy.
Clearly, the realities of international competition have forced
a fresh look at allowing increased collaboration between national
companies to meet international competitive challenges. Sematech
-- the research consortium among U.S. semiconductor companies
(and originally the U.S. government) -- has demonstrated that
there are important potential benefits to collaboration that
should not be restricted by antitrust enforcement.
That said, it's undeniable that the country as a whole benefits
from a diverse marketplace in which companies compete for customers
on the basis of price and innovation.
Perhaps one of the most valuable things to be learned from
the Microsoft case is that antitrust policy does seem to have
a role to play in the ""new economy.''
The final resolution of the Microsoft case could easily be
years away, and Microsoft certainly deserves the right to pursue
all legal avenues reasonably available to it to defend itself.
Already, however, there are important lessons to be drawn from
the litigation. Microsoft and its chairman, Bill Gates, have
argued stridently that the old concepts of antitrust cannot
be applied to the new economy of software and microchips.
This argument was initially appealing to many, including me.
But it is striking how little Microsoft was able to produce
to support this position. In fact, as the case unfolded it seemed
that the parallels between Microsoft's actions and those of
past trusts were too strong to be ignored.
Even more surprisingly, as the case enters its next phase it
seems that many of the remedies employed in the past -- court-ordered
breakups and limits on commercial behavior -- are, in fact, potentially
viable in the new economy, just as they were in the old economy.
So antitrust is likely not as antiquated as it once appeared.
Still, however, there are competitive realities that must be
addressed.
Consider the recent merger of Boeing and the other remaining
U.S. airframe manufacturer, McDonnell Douglas, which ultimately
was approved by U.S. authorities.
Even though Boeing would still face intense international competition
from Europe's Airbus, many were concerned that this merger would
lead to troubling concentration in the production of large airliners.
Airbus, however, would not exist were it not for generous
subsidies by European governments. Since the United States is
not inclined to grant similar subsidies to Boeing, might it
be appropriate to loosen antitrust scrutiny here? And in cases
of other U.S. companies forced to compete with foreign governments
as well as companies?
Beyond that, Europe's increasing interest in mergers involving
major U.S. companies, like Boeing and MCI-WorldCom, raises other
questions.
Europe has every right to promote a competitive marketplace
in order to ensure low prices for its consumers. There is, however,
a fine line between this type of legitimate action and measures
designed to promote the interests of the European competitors
of the U.S. targets of the EU actions. The latter, of course,
is merely another type of protectionism.
Since so many of the world's largest companies -- General Electric,
General Motors and Microsoft -- are U.S. companies, the United
States must remain on guard to ensure that a global wave of
antitrust actions does not become an excuse for a wave of anti-U.S.
protectionism.
The day may not be far away when the United States must decide
whether an antitrust action against Microsoft in Europe, Japan
or elsewhere is a legitimate effort to follow a U.S. example,
or merely an effort to boost a foreign Microsoft rival.
At some point, these issues will require an international agreement.
Negotiations have already been proposed on an international
antitrust agreement, but from a U.S. perspective they are likely
to be long and difficult.
A diverse, competitive marketplace still remains very much
in the best interest of the United States. The new competitive
realities of the global market, however, make that goal harder
to pursue than ever before.
An unfortunate truth, it seems to me, is that most other countries
are more interested in building up national champions -- and
perhaps tearing down U.S. national champions -- than building
a competitive marketplace.
Copyright 2000, Journal of Commerce
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