The role of antitrust enforcement in the U.S. economy is drawing debate these days, with critics often suggesting that U.S. antitrust authorities should emulate their European counterparts. The differences between the two approaches will be the focus of a hearing today before the Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights.

Expect the hearing to feel academic at times. There undoubtedly will be comparisons about the role of economic analysis, the definition of consumer welfare, and the application of the rule of reason. The hearing may also touch on procedural differences and the role of judicial review between the enforcement practices in Europe and the United States. 


Undoubtedly, all of these observations will be true, but the central difference between the United States and Europe is that the United States does not believe in using antitrust to manufacture a certain outcome in the marketplace. In the United States, we believe societal priorities, including important economic objectives, should be left to legislation and regulation and should not be the product of antitrust enforcement.

This is not the case in Europe. When it comes to competition concerns regarding dominant firms with a large share of the market, Europe believes that protecting the competitive process extends to protecting competitors. The result is Europe punishes success.

Every successful company in Europe that becomes dominant by earning consumer loyalty learns that European antitrust enforcement is waiting to saddle it with a special responsibility. This responsibility requires the firm to stop competing and to give its competition a break. In stark contrast, the United States refuses to punish success by requiring firms to take it easy on the competition.

U.S. antitrust law is comfortable with dominant firms, so much so that monopolies are technically not illegal under our laws. Instead, we use antitrust to monitor how a firm becomes dominant. Dominance earned through competition in the marketplace is rewarded. But dominance gained through anti-competitive mergers or through business practices that artificially result in market dominance appropriately results in antitrust scrutiny.

Over the years, we have seen Europe issue antitrust remedies to successful companies by dictating to them a special responsibility. Some learned they could no longer pre-load products – ranging from soda to software – in platforms that they already invest in and provide to customers. In these cases, Europe ignored that consumers often enjoy the convenience of these bundles but can easily find alternatives. Other companies were condemned for offering lower prices in the form of loyalty rebates. Remedies in response to high profile abuse of dominance cases in Europe can strain understanding. They have done little to boost competition and serve as a regulatory solution designed to engineer a desired outcome.

The United States is home to the world’s most successful companies – success that has been achieved as a reward for constant innovation in the marketplace. Consumers, including other businesses, have flocked to their products and services. It is important that U.S. antitrust be vigilant and ensure businesses continue to earn market share by serving the consumer. However, the U.S. should reject European thinking that a firm that has earned its dominance needs to be punished and given a special responsibility. 

Sean Heather is U.S. Chamber Center for Global Regulatory Cooperation vice president.