Articulating Trade-Offs: The Political Economy of State Action Immunity

Antitrust uses economic analysis to assess various trade-offs involving efficiency. Even assuming that a competition matter implicates purely economic matters it can be exceedingly difficult to determine and measure all the relevant factors, assign them proper weights, decide on the appropriate time frames, assess the pertinent interactions, and conduct the trade-off calculations. Not surprisingly, different members of the antitrust community often take vastly differing positions regarding the economic consequences of a particular antitrust doctrine as well as the significance of those consequences. When potentially anticompetitive conduct occurs in the context of state regulation, the challenge to achieving a sensible accommodation is heightened because substantially less agreement exists regarding the appropriate balance between federalism and federal competition policy.

Moreover, given that constitutional considerations arguably inform the balance struck, the necessity of achieving the correct balance is even more significant.