Antitrust is as American as apple pie. It embodies a defining attitude toward corporate bigness in American political culture and (as Assistant Attorney General Thurman Arnold disparagingly put it) in American "folklore." A peculiarly American approach to the public control of economic power, it has not been much imitated by other democracies until recently.1 Other countries have preferred to deal with issues of corporate size, competitive behavior, and market control through corporatist negotiation, discretionary government planning, or nationalization. Many have tolerated or even encouraged cartels.

Such approaches also had their champions in the U.S. As the gilded age laissez faire regime fell into disrepute, Theodore Roosevelt pressed for executive discretion to regulate "bad" trusts, and a few decades later corporatism was tried for a few years under the New Deal's National Recovery Administration. But an adversarial regulatory approach resurfaced after the NRA was struck down and has been dominant historically in the U.S.

So accepted is this system that commentators often speak of a "bipartisan consensus" on antitrust. It is true that, in the 113 years since the Sherman Act initiated the national policy, a network of legal institutions has grown up in the form of federal and state agencies, congressional oversight committees, a body of judge-made interpretative doctrine, and a large legal fraternity who argue antitrust cases, all supported by a broad expectation among businesses and citizens that conspiracies in restraint of trade, and other methods of unfair competition, will be prosecuted. Further, the notion that antitrust may be a necessary remedy against outright collusion to raise prices or stifle competition—against practices that endanger consumer welfare by increasing their costs or denying them valuable product innovations—enjoys wide support, even among Chicago School economists and other conservatives who otherwise disapprove of "heavy handed" government regulation.

However, the presumed "bipartisan consensus" clearly has its holes. There are, in fact, distinct cycles in political and academic enthusiasm for antitrust, and they have definite partisan aspects. We have been in a down-phase since 1980, the year most political scientists would list as the beginning of the conservative Republican realignment.2 Though we hear reports predicting a "post-Chicago" era,3 the federal courts have been filled with conservatives skeptical of any vigorous pursuit of antitrust, and passage of any strengthening legislation must await a sea-change in Congress that is not yet on the horizon.

The advantages of a laissez faire approach to antitrust (and all corporate regulation) are debatable. The costs of the lulls in antitrust enforcement have become more obvious in the present era. We have witnessed, in the past two decades, a relatively unimpeded rush to gigantism, both domestically and cross-nationally that merits inclusion in the small number of historic merger "waves." Comparison is sometimes made to the 1895-1904 merger episode, which was spurred not only by growing international trade and the "excess capacity" resulting from severe national depression, but also by the political defeat of Populists and Democrats at the polls in 1896. The great new "trusts" set out to raise prices and crush labor unions, and finally triggered a political reaction that led Teddy Roosevelt to invigorate moribund antitrust enforcement and Congress to pass more potent new laws in the Roosevelt and Wilson administrations.

But the contemporary merger frenzy has produced corporations on a completely different scale. The annual value of corporate consolidations, led by telecommunications, banking, broadcasting, chemical, and pharmaceutical companies has increased 100-fold since 1980, reaching three trillion dollars in 1999. Cross-border mergers comprise today about one-third of the total.4 Fifty-one of the 100 largest economies in the world today are not countries, but global corporations; the top 200 corporations now account for over a quarter of the world's economic activity.5 And the era that saw the MCI/WorldCom, Boeing/McDonald Douglas, Daimler-Benz/Chrysler, AT&T/MediaOne, BP/Amoco, Halliburton/Dresser, Cargill/Continental Grain, Aetna/Prudential, Citicorp/Travelers, Bank of America/NationsBank and thousands of other mergers of already huge companies is not yet over. The domestic banking industry has undergone massive consolidation, with the number of independent banks and thrift corporations falling almost 50 percent since the mid-1980s.6 In telecommunications, four companies controlled all but two percent of local telephone markets by 1999; six companies had 80 percent of cable television markets, and even in radio, four firms controlled a third of annual revenue.7

Consolidation has unleashed behavior for which the term "robber baron" seems too tame. Many mergers appear designed more to create new opportunities for the enrichment of CEOs and favored stock purchasers (and to gratify testosterone-fueled empire building?) rather than to shuck off excess capacity, create new "synergies" or reap economies of scale. We have seen the shocking results in 2001-2002, as giant after giant reveals financial chicanery that enriched the managerial elite while looting the company, to the severe disadvantage of workers, pensioners, stockholders, and communities.