regard to price-stabilization combinations, the antitrust community prefers the more restrictive of two court declarations. in the Appalachian Coals case the Court declined to condemn a combination to fix the price of coal. In the Socony-Vacuum case15 the Court upheld a criminal conviction of a combination to fix the price of oil. The antitrust community has adopted the latter and ignores the former. Those are illustrations of the “dynamic” nature of antitrust free of “what exactly are the words of the statute.”16
Two professors have described an episode illustrating the shallow-ness of the U.S. commitment to competition as follows:
The New Deal’s initial response to the Depression was to abandon enforcement of the antitrust laws. In the pursuit of a national remedy to revive the economy, the antitrust laws were expressly abrogated by the National Industrial Recovery Act of 1933. Contrary to the conventional economic wisdom of the day, which advocated balancing the budget and cutting wages and other costs, the NRA was an attempt to “reflate” the economy by forming cartels in the major sectors of the economy. The NRA administrator ordered former competitors to meet together, to include labor organizations and consumer groups, and jointly to prepare codes governing each industry that restricted or eliminated competition in that industry. The Codes specified every commercial aspect including prices, conditions of work, and the terms of trade for each product and service in the economy.17
During this period the United States had a clear policy as to business competition. The policy was to eliminate as much competition as possible, whether fair or unfair. The Supreme Court held the National Industrial Recovery Act unconstitutional as an improper delegation of power to the president and beyond congressional power to regulate interstate commerce.18 No consistent policy has been developed since.
It is not clear whether corporate acquisitions should be seen as destructive of competition or as a method of competition. It is not clear what methods of competition should be seen as fair or unfair. It is not clear when contracts will be regarded as lawful because they promote competition or unlawful because they suppress competition. It is not clear when activities will be regarded as lawful efforts to compete or unlawful efforts to obtain or abuse a monopoly. Lacking a definition of competition, we, as the public, do not know how to measure it or how to tell whether or not it is being lessened. We have no consistent policy as to when we favor it or oppose it. When court decisions about competition seem to contradict each other, antitrust professors tell students, “Perhaps each case is a product of convictions dominant at the time it was decided.”19 “Convictions” could be translated as “hunches” or “whims,” and one might ask, “Whose convictions about what?”
There is no consensus on what meaning to give to the word “competition.” Most people in business say they favor competition, and yet they use government to protect themselves from it any way they can. At least five different meanings of the word “competition” have been suggested: (1) rivalry, (2) the absence of restraint over one person’s economic activities by another, (3) that state of the market in which the individual buyer or seller does not influence the price by his purchases or sales, (4) the existence of fragmented industries and markets preserved through the protection of viable, small, locally owned businesses, and (5) “any state of affairs in which consumer welfare cannot be increased by moving to an alternative state of affairs through judicial decree.”20
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