By Bert Foer, President, the American Antitrust Institute; May 15, 2009
With the Obama Administration now at least partially in place, it is becoming possible to say some things - but not very specific because there have as yet been no cases - about how the new regime will affect antitrust.
During the campaign, candidate Obama released a statement to the American Antitrust Institute which was highly critical of the Bush Administration' s lack of activity outside of the cartel area.
The statement gives the impression that President Obama is personally on top of the antitrust laws and of an interventionist persuasion. Whether this is true or a result of good staff work is yet to be established. Rarely in US history has a President involved himself in antitrust issues.
President Obama has now made three relevant appointments apart from Professor Cass Sunstein. First, the new Attorney General is Eric Holder and Christine Varney for the key position of Assistant Attorney General for Antitrust. At the Federal Trade Commission, the President nominated a sitting Commissioner, Jon Leibowitz, to be Chairman.
However, activist the new Administration will turn out to be, it will have to deal with one key fact-on-the- ground: the US courts, as a generality, are now quite conservative and hostile to antitrust enforcement, a legacy of the Bush years.
They will not suddenly become more favourably disposed toward antitrust, although it is likely that the Department of Justice's advocacy positions before the courts will be more favourable.
Abstract from the fothcoming issue of ReguLetter, i.e. April-June 2009
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