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Edwin S. Rockefeller is a consummate antitrust insider. He's served as chairman of the American Bar Association's Section of Antitrust Law, and for more than four decades, he's headed the advisory board for the Bureau of National Affairs' Antitrust & Trade Regulation Report. And what has a lifetime in antitrust taught Rockefeller? That it's "faith . . . preserved by a cult of professional followers who call themselves 'the antitrust community.'"

Rockefeller opens with a discussion of what "antitrust" means. It's not simply a matter of interperting antitrust statutes like the Sherman or Clayton acts. The statutes themselves are vague:

"Antitrust is not defined in any of the provisions of the antitrust statutes. It can't be translated into foreign languages. Antitrust was not enacted. It is not a coherent set of rules. You can't look it up. Experts are required to inerpret it. Much of it is in the eye of the professor."

Rockefeller says the antitrust faith "allows the pursuit of mutually exclusive goals," which he identifies as justice and "fairness." The latter, he maintains, prevents the adoption of any objective rules to decide such basic antitrust questions as what contracts "unreasonably" restrain trade, how to distinguish "monopoly power" from effective competition, and how to decide what mergers to forbid.

Chapter 2 is perhaps the book's most instructive. Rockefeller defines and describes the "antitrust community," the practitioners, academics and regulators who directly benefit from antitrust. Becoming a member of the community, according to Rockefeller, is more about speaking the language of antitrust versus then any special experience. The "critical step," he says, is "learning to speak a vocabulary of meaningless or ambigous terms with authority," primarily quasi-economic metaphors that come into play when actually representing clients (or the government) in a particular case. Since antitrust is made up on the fly, it's more important to talk then listen. For this reason, Rockefeller says, "there is no substitute for government service since the government antitrust official must be listened to no matter what is being said."

In chapter 3, Rockefeller provides a short overview of antitrust history. Few cases are discussed; instead, Rockefeller surveys academic and political attitudes towards antitrust in various eras. 

The next five chapters address specific facets of antitrust. Chapter 4 deals wth "market power," an essential element of most antitrust cases. Rockefeller, echoing the free-market literature, explains that market power is not real: "It is the power that a firm or group of firms would have in an imagined situation." Imagined or not, "market power" is a substitute for facts and evidence in antitrust cases. "The antitrust community infers its existence from market share," writes Rockefeller, meaning that if a firm sold X% of goods in a given period it controls X% of the market. But, Rockefeller notes, "the market is only a metaphor, not a description of reality." Ultimately, market power "is used to provide a facade for subjective decisions as to what the decisionmaker feels is fair."

In chapter 5, Rockefeller addresses monopolization, the core fear of antitrust advocates. His starting point is "the Standard Oil legend," the infamous 1911 Supreme Court decision that dissolved the oil trust under the Sherman Act. Rockefeller covers little new ground here. He largely cites other criticism of Standard Oil from economists like Dominick Armentano, Robert Crandall and Clifford Winston, and Thomas DiLorenzo. But he puts the case into the contest of his antitrust-as-religion thesis:

"The Standard Oil legend is a starting point for belief in antitrust in somewhat the same way that belief in the virgin birth supports the Apostle's Creed. Without an acceptance of the Standard Oil legend, the collection of fears, assumptions, and predictions that constitute the antitrust religion wou;d have nothing to build on."

Unfortunately, Rockefeller provides little present-day context for the Standard Oil legend. The rest of the monopolization chapter focuses on well-known historical cases, like ALCOA, IBM and Microsoft. But the only 21st century example he cites is the Ninth Circuit Court of Appeals' 2005 decision against Weyerhaeuser, which was overturned by the Supreme Court, presumably after Rockefeller submitted his manuscript. A better choice would have been the Third Circuit's decision in the 3M case, which dealt with similar monopolization issues but remains binding precedent.

Rockefeller does a better job of discussing contemporary antitrust activities in chapter 6, which deals with mergers. He does a thorough job explaining why the Justice Department and Federal Trade Commission "merger guidelines" are nothing of the sort--they are simply another facade to cover for arbitrary government intervention. The guidelines are wholly dependent on the personal beliefs of the person reading them, and even though more than 95% of mergers are allowed, there's no way to know if or why a particular deal falls within the remaining 5%.

"Tying" and "exclusive" dealing are dealt with in chapter 7. As with monopolization, Rockefeller relies mostly on historical cases that overlook recent developments (such as the Supreme Court overturning its decades-long ban on "resale price maintenance.") Again, a discussion of 3M wold have been beneficial. There's little to distinguish his discussion of tying from the previous chapters on monopolization and market power.

Finally, chapter 8 addresses what Justice Antonin Scalia once called the "supreme evil" of antitrust: price fixing. It's curious that Rockefeller would shove this subject to the back of the line when price fixing cases form the backbone of most of the antitrust community -- from criminal prosecutions that generate hundreds of millions in fines to civil class-action lawsuits that enrich large law firms. Rockefeller properly notes the hypocrisy of government condemnation of private price fixing agreements while sponsoring large-scale price fixing arrangements like unions. He also cites a number of authors for their work in debunking the myth that price-fixing is harmful to free markets. Yet, once again, there's little in the way of present-day examples. At the end of the chapter, he cites the 2003 class action against Visa and Mastercard. But there's nothing about the Bush-era DOJ's ratcheting up of criminal price-fixing prosecutions, particularly against non-U.S. firms and executives.

And in what's arguably Rockefeller's greatest ommission, there's no mention of the DOJ's "corporate leniency" policy, an extra-constitutional practice whereby the DOJ's Antitrust Division hands out full pardons to one company in a suspected price-fixing cartel in exchange for providing evidence against the firm's competitors. These pardons, which are secret and not subject to public or judicial review, distort the very markets the DOJ claims to protect by giving one company what amounts to a huge subsidy (since the other firms inevitably plead guilty and pay fines, while the pardon recipient stays out of court and pays nothing.) If any single practice demonstrates the arbitrary and capricious nature of antitrust, it's "corporate leniency," but Rockefeller neglects to even mention its existence.

Rockefeller concludes his book on a mixed note. He says that while there's ample cause to repeal antitrust, it's not politically feasible. He doesn't offer any practical suggestions for fighting the antitrust community beyond further education--of law students, journalists and the public alike. Despite the shortcomings noted above, Rockefeller's own book serves as a good introductory vehicle for providing that education. 

The Antitrust Religion (2007) by Edwin S. Rockefeller is published by the Cato Institute (ISBN 978-1-933995-09-0). You can purchase the book for $16.95 through the Cato Institute's website.