The role of the ACCC in restoring faith in free markets speech

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It is an important time to be talking about competition. Competition law and policy are essential underpinnings of our free market economy. We are, however, in the midst of a crisis of faith in free markets which should, and I know does, worry us all.

Today I want to make four points, as follows.

• First, I will briefly outline the loss of faith in the free markets and why this should concern us all
• Second, I will briefly discuss how some prominent economists have seen the role of competition policy and law in our market economy through time, and today
• Third, I will explain why effective enforcement of the Competition and Consumer Act (CCA) is so important to people having faith in free markets, and
• Fourth, I will suggest how we can improve the effectiveness of the CCA, particularly through higher penalties for competition law breaches.

Overall, as a committed believer in a capitalist or free market economy, I believe that a sound CCA, strongly enforced, is crucial to the proper functioning of, and people having faith in, such a system.

In essence, anti-competitive conduct is profit-maximising for firms, particularly those with a degree of market power. We should never be surprised that firms seek to handicap their competitors, push the boundaries to the point of misleading consumers or merge so they can raise prices. We must understand that they are simply pursing their commercial self-interest.

The CCA sets the standard for competitive behaviour in Australian markets, and provides for enforcement action to be taken by the ACCC as well as private litigants when businesses engage in anti-competitive, misleading or unconscionable conduct. Companies need to understand where the line is drawn; and consumers need to know that such a line exists, and that it is being strongly and effectively enforced.

Growing scepticism about free markets

The disenchantment regarding free markets seems to have two focuses: one relates to trade and the impact of exposing local industries to global competition and a concern about a loss of jobs; the second is a general discontent with capitalism itself. Many question whether open markets really work for the benefit of citizens, or whether open markets result in citizens being, to use a popular phrase, “ripped off” by powerful companies.

The current questioning of free markets, however, is more fundamental than concerns about the power of big business. A 2016 poll by the Kennedy School at Harvard of young Americans revealed that the majority reject capitalism – 51 per cent to 42 per cent[1].

The survey also found 59 per cent rejected socialism while 33 per cent supported it.

With that in mind, a joint survey published in the Journal of Democracy[2] by the University of Melbourne and Harvard found that the younger the respondent the less they are likely to agree with the statement that “living in a democracy is essential”.

Among US millennials, just under 30 per cent thought democracy was of “maximal importance”.

As many observers have noted, this crisis of faith has been brewing for some time. A poll by Globescan in 2010 showed that support for the free market in America had dropped from 80 per cent in 2002 to 59 per cent in 2010. This was said to be lower than support for free markets in China. [3]

I could talk about free trade and its benefits, but we all understand them. Instead, it is the broader concern about the value of markets themselves that is more relevant to us here today.

I have been, and remain, a passionate believer in the power of free markets. I have seen firsthand, from work in developing countries early in my career, to working in public policy and then corporate strategy, the positive change countries and institutions are capable of if they embrace an open market system. I have also seen the speed at which countries that resist the power of markets can fall behind.

For me, and this is a key point, the profit motive is the most powerful tool for enhancing social welfare. It provides businesses with the incentives to produce the goods and services consumers need and want. It rewards the businesses that do it best and ensures they are the ones that continue on. And it encourages innovation and progress.

The other great benefit of free markets is that they are efficient to manage. Government need only to set some basic rules and enforce them, and the market organises itself.

It is these rules and their enforcement that keeps all of us here today occupied. The CCA contains many of the key market rules that I am referring to; the ACCC is the primary enforcer of those rules, and the courts are the arbiter of whether those rules have been breached.

In my view, the rules are fairly simple. While the annual edition of Miller’s easily surpasses two thousand pages, the essential rules are those that keep markets working for the benefit of consumers: anti-collusion provisions; restrictions on the use of market power; merger controls that limit the attainment of market power through acquisitions rather than merit; and consumer protections through provisions prohibiting misleading or unconscionable conduct.

Economic thinking and competition law enforcement

One point that interests me as someone with an economics background is that you don’t always hear vocal support for competition law from economists today. In fact, the loudest voices from the economics community are often those opposed to what I would see as the effective enforcement of competition law on the basis that it interferes with the functioning of the free market.

Often such economists adopt overly theoretical positions without a good understanding of commercial strategy and practice; but more on that later.

Economists have a long and proud tradition of being in favour of competition and open markets, free of unnecessary government intervention. This tradition goes back, of course, to Adam Smith, who once said:

“In general, if any branch of trade, or any division of labour, be advantageous to the public, the freer and more general the competition, it will always be the more so.”[4]

According to Adam Smith, proposals for new government intervention should always be treated with extreme scepticism, especially when they come from the industry itself. Adam Smith clearly and properly recognised that the interests of industry were not always aligned with the broader public.[5]

Following Adam Smith, economists, as a profession, have tended to be strongly in favour of promoting competition, and competitive markets, and have tended to be sceptical about proposals for government intervention in the economy.

But what would Adam Smith have made of competition law? Competition law is, of course, a form of government intervention, but one that is, at least ostensibly, intended to promote competition. Would Adam Smith have been in favour or opposed to competition law?

Adam Smith was, of course, keenly aware of the problem of cartels and monopoly. Talking about monopoly he said:

“A monopoly granted either to an individual or to a trading company has the same effect as a secret in trade or manufactures. The monopolists, by keeping the market constantly under-stocked, by never fully supplying the effectual demand, sell their commodities much above the natural price, and raise their emoluments, whether they consist in wages or profit, greatly above their natural rate.”[6]

In the Wealth of Nations he also stated:

“Consumption is the sole end and purpose of all production; and the interest of the producer ought to be attended to, only so far as it may be necessary for promoting that of the consumer.”[7]

In regard to cartels, in one of his most famous quotes he said:

“People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.”[8]

But in very next sentence he expresses some scepticism that such gatherings could be prevented:

“It is impossible indeed to prevent such meetings, by any law which either should be executed, or would be consistent with liberty and justice.”[9]

He was not then, of course, able to foresee the cleverness of today’s immunity policies.

Overall, and of course this statement cannot be proved nor disproved, I think Adam Smith would have been a keen supporter of the CCA.

Although there were some laws regulating trade and commerce in Smith’s time – rules against “restraints of trade” date back at least to the Middle Ages – it took another hundred years or so before the first competition law was enacted.

Modern competition law, or antitrust law, as we know it was first actively enforced, of course, in the US, with the 1890 Sherman Act. Canada rightly claims a modern competition law that preceded the Sherman Act and not too long after in 1906 the Australian Industries Preservation Act enacted an Australia version of the Sherman Act. These laws were a response to strong public sentiment against ‘combinations’ or monopolies which had grown very strong in the ‘new world economies’ of the late 19th century.

Was the economics profession of the time strongly in favour of the creation of antitrust rules? Interestingly the answer is no. The economics profession of the time, for example, was either largely silent or somewhat hostile to the Sherman Act.[10]

Some economists viewed the Sherman Act as a violation of the prevailing laissez-faire principles at the time, or as nothing more than a populist measure intended to protect small agricultural producers from the large corporations that were coming to dominate late 19th century America. When you think of the current debate about the amendment of section 46 and the arguments used against this sensible change it is clear that some things never change.

The spread of competition law to other countries was slow. In the era after World War II, competition laws were adopted in the precursor to the European Union and in the UK and Commonwealth countries. It took another few decades for competition law to be widely adopted.

As many here may know, after the enthusiastic early adoption of a competition law in Australia, the first criminal cartel case taken was known as the Coal Vend case and led to the conviction of coal miners and shippers after a 70 day trial. The conviction against the shippers was ultimately overturned by the Privy Council in 1913 which ruled that you cannot “rely on the mere intention to raise prices...”; instead, you have to prove that there was also an “intention to charge excessive prices…It can never…be of real benefit to the consumers of coal that colliery proprietors should carry on their business at a loss…”.

The Privy Council made this decision in the context of what they described as “disastrously low prices” for coal which were due to “cut throat” competition.

This decision, as you will appreciate, effectively suspended Australia’s experiment with competition law until the mid-1960s. By 1974 we had a properly functioning modern competition law and an agency to enforce it.

In the forty three years since the 1974 Trade Practices Act, competition law has now been adopted by the majority of countries in the world, with over 150 competition agencies now responsible for enforcing the various laws now in place.

The views of economists moved on. A 1984 survey of professional economists around the world found that, for example, 83 per cent believed that “antitrust laws should be used vigorously to reduce monopoly power from its current level”.[11] Even those economists who actively oppose many other forms of government regulation and control may support competition law as a legitimate role of government.

Take, for example, the case of F. A. Hayek (Austrian economist and Nobel prize-winner, 1974). Hayek was a long-time advocate of “allowing markets to function relatively unhampered by government regulation”. Like other Austrian economists he viewed competition as a “‘discovery procedure’, an experimental method of solving problems and adapting to unpredictable and inevitable changes in circumstances”[12]. But when it came to antitrust law, Hayek endorsed “the power to regulate monopolies and curtail industry practices in restraint of trade” as a legitimate function of the state.

Hayek used the example of an oasis where people settled under the assumption that water would be available at a reasonable price, due to the existence of competing supplies of water. However, if one of those supplies dries up the owner of the remaining spring may be in a position of monopoly, being in the “position of being able to demand that the people do whatever he wishes”[13]. It is this situation of economic dependence that Hayek wished to avoid and for him, justified competition law interventions in the economy.

But within the economics profession there are strong critics, in part because of concerns with the way that competition law has been enforced in practice. For example, Milton Friedman (US economist and Nobel Prize winner, 1980) has spoken of his own change of heart:

“My own views about the antitrust laws have changed greatly over time. When I started in this business, as a believer in competition, I was a great supporter of antitrust laws; I thought enforcing them was one of the few desirable things that the government could do to promote more competition. But as I watched what actually happened, I saw that, instead of promoting competition, antitrust laws tended to do exactly the opposite, because they tended, like so many government activities, to be taken over by the people they were supposed to regulate and control. And so over time I have gradually come to the conclusion that antitrust laws do far more harm than good and that we would be better off if we didn't have them at all, if we could get rid of them.”[14]

This idea that competition law is fine provided it is very rarely used is often put by competition economists.

Competition law in my view, however, seeks to promote competition and the benefits this brings. A firm is allowed to compete by investing to create products that are cheaper or more desirable than its rivals, even if that means achieving a dominant position in a market. Competition law, however, prohibits the same firm from engaging in conduct tying up essential supplies, or locking up marketing channels or means of reaching consumers in order to prevent rivals from competing on their merits. This directs investment towards creative and productive ends which are in the long-term interests of the overall economy.

The critics of competition law, however, have made some valid points. For too long in its history, economic thinking had too little influence on competition law enforcement. Fortunately, that has now changed. It is widely recognised around the world that economic thinking has a fundamental role in underpinning competition law and policy.

But economic thinking itself changes over time. J. M. Keynes is famous for pointing out that “Practical men who believe themselves to be quite exempt from any intellectual influences, are usually the slaves of some defunct economist”. Economic thinking regarding competition law has changed over time and may change again in the future. To illustrate this, let me leave the final words in this section to my favourite newspaper, The Economist, and to its Schumpeter Column of April 12, 2017.

“One sign that monopolies are a problem in America is that the University of Chicago has just held a summit on the threat they pose to the world’s biggest economy. Until recently, convening a conference supporting antitrust concerns in the Windy City was like holding a symposium on sobriety in New Orleans. In the 1970s economists from the 'Chicago school' argued that big firms were not a threat to growth and prosperity. Their views went mainstream, which led to courts and regulators to adopt a relaxed attitude towards antitrust laws for decades. But the mood is changing … What has changed? The facts. The pendulum has swung heavily in favour of incumbent businesses.”

The Economist then says that antitrust regulators “have more power than they admit… They must be braver”.

I believe at the ACCC that we are “braver”. All the while, however, hopefully appropriately humble about what we can achieve and the difficulties of knowing what would happen in the counterfactual.

We know we will make mistakes, but hopefully not through a lack of courage.

The importance of an effective CCA for the proper functioning of free markets

Since coming to my current position I have often heard competition lawyers and economists say “companies only succeed if they best satisfy the needs of consumers”.

While there is much truth in this, as I have already indicated, the use of the word “only” betrays surprising naivety and is a cause for concern.

Let me illustrate.

What Adam Smith is to economics, Michael Porter is to commercial strategy.

In 1979, as a young associate professor at the Harvard Business School, he published “How competitive forces shape strategy”. Over time variations on the following diagram at Figure 2 have dominated commercial corporate strategy thinking and practice.

The essence of commercial success was to reduce competition in your market, erect high entry barriers, keep suppliers dispersed and weak, seek strong consumer loyalty, and reduce the likelihood of product substitutes.

On its website, the Harvard Business Review says the following in promoting a reprint of this article.

“The five forces govern the profit structure of an industry by determining how the economic value it creates is apportioned. That value may be drained away through the rivalry of competitor … through the power of suppliers or the power of consumers or be constrained by the threat of new entrants or the threat of substitutes. Strategy can be viewed as building defences against the competitive forces or as finding a position in an industry where the forces are weaker. Changes in the strength of the forces signal changes in the competitive landscape critical to ongoing strategy formulation”.[15]

As anyone with any commercial experience knows, businesses are at least as much focussed on reducing these competitive pressures as they are on “satisfying the needs of consumers.”

When I left public policy 23 years ago and joined a commercial corporate strategy firm I quickly invented the following equation:

Corporate strategy = Competition policy x (-1)

That is, corporate strategy is often trying to achieve the opposite of competition policy.

I remember in late 1994, six months into my new role in the private sector, encountering a friend who was working in the then prime minister’s office. She asked: “After six months out of the public service if you met the Prime Minister today what would be your key message to him?” With no hesitation I said: “Double the size of the ACCC.”

Let me hasten to add that the vast majority of what companies do is to the benefit of consumers. They spend a lot of time reducing costs, improving their products and opening new stores or facilities. This is why free market economies are so successful.

Even their efforts to raise entry barriers or lock in consumers can benefit consumers; think Microsoft or Apple or Google. But, as with each of these companies, they will occasionally seek to create shareholder value by excluding competitors, anti-competitive bundling or deceiving consumers.

One way to categorise corporate behaviour is in Figure 3.

Figure 3: Categorising corporate behaviour

In the course of our investigations I often meet corporate executives and their advisers who see only the behaviour in line one; I am assured that the company executives would never consider acting otherwise.

Where I see profit opportunities for them in behaviour that can breach the CCA, I am assured there are no such opportunities. It is amusing that the ACCC is often accused of being theoretical when it is usually being quite practical and showing a good understanding of corporate strategy and motives.

The point is recognised by The Economist magazine.

Its Schumpeter column of February 18 concludes:

“Competition policy needs to weaken the entrenched position of established firms and help new entrants. That would make the economy more dynamic, boost wages and end the era of surplus profits that are put to no use. It’s not a message many powerful CEO’s are keen on.”

We certainly saw this in relation to our recent debate concerning the Harper Review’s recommendations to make section 46 of the CCA workable.

At a time when consumers are questioning the value of free markets, I think it is worth reflecting on whether our role, that is the enforcement of the CCA, is effective in keeping markets working for consumers.

Of course, one thing that can work against the perception of the value of free markets is that competition is a process. Markets don’t always immediately provide low prices or ready supply, sometimes they have to work their way towards that state. I have previously been criticised for saying price gouging is not against the law, and nor should it be. If you have faith in open markets, you know that price gouging will often be temporary; that the money being made will attract new entrants and this increase in supply will bring prices down.

It is important that we recognise the alternative to market correction, usually some government intervention, is often more costly.

But the process of competition can be disrupted where competitive forces are stifled. For example, where businesses are able to amass market power and block competitive entry, price gouging is no longer transient opportunism, but a viable long-term strategy. Such a situation is greatly to the detriment of consumers.

Similarly if businesses collude with one another rather than compete against each other, it is consumers who suffer higher prices.

And where businesses are able to mislead consumers into buying the wrong products, or to act unconscionably towards consumers in ways that takes advantage of their vulnerabilities, then it is these rogue businesses that will flourish. The businesses doing the right thing, trying to win customers by providing the best product, lose out.

Some of the current discussion on the negative public perception of capitalism focuses on unemployment and structural changes in the economy as old industries phase out. But the effectiveness of the competition and consumer laws also influences public perception of our economic systems.

We need only look at the recent conduct of some of Australia’s largest companies, and observe the public and political backlash.

Coles’ treatment of its suppliers in 2011 resulted in considerable scepticism about the operation of markets in this context and saw the government inserting itself into the grocery supply chain as mediator.

Murray-Goulburn’s conduct towards its own dairy farmers generated such a strong public reaction that consumers and politicians are openly calling for higher milk prices, and the ACCC has been asked to conduct an Inquiry into the industry in addition to separately investigating whether Murray Goulburn’s conduct may have breached the Australian Consumer Law. On April 28 we instituted proceedings in the Federal Court as a result of the investigation alleging both misleading and unconscionable conduct.

There are, however, so many examples of companies behaving in ways that generate cynicism at best: think Nurofen’s specific pain relief products, electricity price discounts off a moving base, petrol prices that rise together by 20cpl in a day or so, our alleged laundry detergent cartel, our cases against ANZ and Macquarie last year, free range eggs when the chooks rarely if ever left the barn, and so on.

These examples, and the many other bits of business conduct that fall under our purview, make a strong impact on the public’s perception of markets and whether they work for consumers.

The competition and consumer laws play a vital role in maintaining consumer’s trust in markets. They keep businesses playing the game fairly by punishing those who breach the rules. This is the key reason to take strong enforcement action against businesses that collude or misuse their market power, or mislead consumers, and to block mergers that would substantially lessen competition.

The ACCC argued strongly for certain changes to the CCA during the Harper review that we feel will enhance our ability to keep markets working for consumers. Changes such as ensuring a usable ‘misuse of market power’ provision, better merger laws and the introduction of a ‘concerted practices’ provision are important improvements that will help the ACCC discourage businesses from pursuing the profit motive to the detriment of consumers.

However, the effectiveness of the competition and consumer laws is ultimately dictated by whether the punishment for contravening those laws deters such conduct in the first place. To put it simply, do the penalties make such conduct unprofitable for firms to engage in.

The common perception, by some businesses and many consumers, that penalties imposed under the CCA and ACL following ACCC action are merely incidental to or a cost of business is greatly detrimental to the integrity of our economic system.

Many would object to what I have just said; of course companies would not seek to break this law. But note: I did not say that. There is a subtle point here. The point is not do they seek to break the law; the point is how much does it matter to them if they “cross the line” I referred to earlier.

The penalties for breaching competition and consumer laws need to be a credible stick, capable of meaningfully impacting businesses that do the wrong thing. That is, impacting their bottom line, because profits are the primary measure of a business’s success and impacts on profits will generate changes faster than any other form of pressure.

Having a meaningful stick also generates two other benefits: it acts as a general deterrent to other businesses that may be considering such conduct themselves; and it reassures consumers that businesses that damage their interests will be punished.

This last effect is particularly important today, with so many consumers increasingly sceptical about whether the system is working for them.

Realising higher penalties

The ACCC is very concerned that penalties imposed by Australian Courts in both competition and consumer cases historically have not been sufficiently high to deter contraventions, particularly in cases involving larger businesses.

On the consumer side, the ACCC strongly welcomes the current Australian Consumer Law Review. This review acknowledges that the maximum penalties for breaches of consumer law are inadequate. They are too low to provide a powerful deterrent effect, and this is particularly the case for breaches by large corporate players that are unlikely to be deterred by a maximum penalty of $1.1 million per contravention.

The ACL Review recommends that the ACL penalties be comparable to competition law penalties that also operate across the economy. There appears to be no policy reason for the maximum penalties under the ACL being lower than those available for breaches of competition laws.

As one example, we were pleased late last year when Nurofen maker, Reckitt Benckiser, had its penalty increased by the appeal court from $1.75 million to $6 million, after it was found that the original penalty could not be viewed as substantial or as achieving deterrence.

The Court held that the penalty imposed by the first instance judge of $1.75 million was “manifestly inadequate”, and that a penalty at that level “would reinforce a view that the price to be paid for the contraventions was an acceptable business strategy, and was no more than a cost of doing business.”

Perhaps had competition law penalties been available to the court we could have seen a penalty many times higher than the amount awarded to act as specific deterrents to large, multinational companies such as Reckitt Benckiser.

I suggest, although we have no way of knowing, that the vast majority of Australians would consider a $60 million penalty more appropriate as a specific deterrent for Reckitt Benckiser, which is a large multinational company.

Turning now to competition law, we have a very different story. The penalties available in Australia are broadly in line with international trends. However, penalties actually imposed here in Australia are stunningly lower than those in other comparable jurisdictions.

The key reason for this is that Australian competition law penalties were only brought into line with those overseas in 2009. From that date Australian courts now have been able to impose penalties of up to 10% of turnover where, as is usual, the benefits obtained from the illegal activity cannot be calculated.

For a company that, say, has an Australian turnover of $1 billion, the maximum penalty per contravention can now be $100 million, rather than $10 million as it was before this change was introduced in 2009.

While we are only now encountering cases where the relevant behavior occurred post 2009, the Parliament has clearly spoken. It now wants higher competition penalties as, I suspect, does the average Australian.

As with the Nurofen case in consumer law, the courts also seem to be focusing on the level of deterrence required. In his judgment on our proceedings against ANZ Bank and Macquarie Bank last December, Justice Wigney expressed reservations about the amount of the penalty that was by agreement jointly submitted to the court.

He said that the penalties were “at the very bottom of the range of agreed penalties” and that he would have ordered a much higher penalty had there been no agreed penalty. He also said:

“A very sizable penalty is plainly required to deter a financial institution of the size of ANZ from engaging in such conduct again. Equally, a very sizeable penalty is required to deter institutions in positions similar to ANZ who might be tempted to engage in similar contravening conduct”.

Clearly the size of the company does matter when having regard to the level of penalty required to achieve specific and general deterrence.

The ACCC has been for some time giving this issue careful thought. In particular we have had regard to the way in which other countries quantify their penalties in order to achieve deterrence.

In December 2016, for example, Australia participated in a Global Forum on competition hosted by the OECD. A key issue discussed was sanctions in competition cases. The research revealed that most other OECD jurisdictions, including the US, UK and the EU have very transparent methodologies for determining penalties.

In the United States, Europe and the UK the methodology used to determine penalties includes the calculation of a ‘base fine’. This is usually done by reference to a set percentage (between 10% and 30%) of the relevant turnover of the business being penalised. The turnover figure is often the turnover of the firm in the jurisdiction concerned but sometimes it is the relevant global turnover of the firm.

Commonly once the base fine is calculated, it is increased having regard to duration of the conduct and numbers of contraventions, and other aggravating factors. Mitigating factors are then applied which reduce the fine before a final figure is determined.

An important difference between our approach and that of other overseas jurisdictions is that our Courts do not start the exercise of determining penalties by calculating a base figure calculated by reference to turnover of the firm.

If the base penalty approach was applied in Australia, firms with smaller turnover might end up with similar fines to those currently imposed, but importantly firms with substantially larger turnovers would generally end up with much higher penalties.

As an example, Professor Caron Beaton-Wells of the University of Melbourne has used the USA methodology to calculate that in the Visy case, instead of the penalty of $33m imposed then by the Court, the starting figure would have been $212 million, with potential to increase above that level. Under the EC’s 2006 Guidelines, Visy’s base figure would have been even higher.

In the ACCC’s view, penalties imposed under the CCA need to be many times higher than they are now to have a sufficient deterrent effect on larger firms. The current ACL Review has recommended such higher penalties for consumer law breaches; and we, the ACCC, must work with the courts to give effect to Parliament’s clear intention of a step change in penalties for competition law breaches by larger companies.

Final comments

Everyone in this room wants Australians to believe that our market economy works to their benefit. This is more likely if we have the sensible changes to the law that are likely to flow from the Harper and ACL reviews, and if a then appropriate CCA is enforced, and seen to be enforced vigorously and fairly.

Thank you for your time today.

[1] Survey of Young Americans’ Attitudes toward Politics and Public Service, 29th Edition: March 18 – April 3, 2016. Questions 89 and 90. iop.harvard.edu/sites/default/files/content/160425_Harvard%20IOP%20Spring%20Report_update.pdf.

[2] Robert Foa and Yascha Mounk, ‘The Democratic Disconnect’, Journal of Democracy, July 2016, vol 27 no 3.

[3] “Sharp Drop in American Enthusiasm for Free Market, Poll Shows”, GlobeScan, 6 April 2011. Available at http://www.globescan.com

[4] Adam Smith, An Inquiry Into the Nature and Causes of the Wealth Of Nations, Book II, Chapter II, para. 106.

[5] “The proposal of any new law or regulation of commerce which comes from this order, ought always to be listened to with great precaution, and ought never to be adopted till after having been long and carefully examined, not only with the most scrupulous, but with the most suspicious attention. It comes from an order of men, whose interest is never exactly the same with that of the public, who have generally an interest to deceive and even oppress the public, and who accordingly have, upon many occasions, both deceived and oppressed it.” Ibid, Book I, Chapter XI, para. 264.

[6]      Ibid, Book I, Chapter VII, para. 26.

[7]      Ibid Book IV, Chapter VIII, para. 49.

[8]      Ibid, Book I, Chapter II, para 82.

[9]      Ibid.

[10]     Nobel Prize winner George Stigler talks about the “lack of enthusiasm, and often the downright hostility, with which economists greeted the Sherman Act” in 'The Economists and the Problem of Monopoly', Occasional Papers from the Law School, University of Chicago, Number 19, 1982.

[11] Bruno Frey, et al, 'Consensus and Dissension Among Economists', American Economic Review (May 1984): 986-94.

[12] Ellen Frankel Paul, 'Hayek on Monopoly and Antitrust in the Crucible of US v Microsoft', NYU Journal of Law and Liberty. http://www.law.nyu.edu/sites/default/files/ECM_PRO_060889.pdf.

[13] F.A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), pg. 136.

[14]  M Friedman, 'The Business Community’s Suicidal Impulse', Cato Policy Report, Vol. 21, No 2, March/April 1999. pp. 6-7.

[15] Available at: https://hbr.org/2008/01/the-five-competitive-forces-that-shape-strategy.