Restoring Rivalry As a Central Concept in Antitrust Law

In the fractious realm of antitrust law, one proposition commands nearly universal allegiance—that antitrust laws protect “competition.” A strong consensus once existed among antitrust courts that competition was to be defined by its dictionary meaning of rivalry among firms for the business of consumers. The concept that competition equals economic efficiency rather than rivalry has grown in influence since the 1970s. It is time to restore rivalry to the throne and reestablish it as a central concept in antitrust law. Defining competition in terms of rivalry is both sound law and sound economics. Rivalry cannot, however, be restored to prominence under the same terms and conditions which prevailed before it was displaced. Part II of this article is devoted to an exploration of why, as a matter of statutory interpretation, competition under the antitrust laws should be defined as rivalry. Part III discusses why focusing the antitrust laws on the rivalry standard will lead to increases in productive and innovative efficiency, which are so necessary for long-term success in an increasingly globalized and technologically driven economy. Part IV of this article contains a discussion of some of the changes in modern antitrust doctrine that will be wrought by a renewed focus on using the antitrust laws to promote rivalry. Finally, Part V discusses the doctrinal changes and accommodations that must be made if rivalry is to remain a viable central organizing concept in antitrust law