This Article explores the emergence of the LRA test, as well as its dangers, and explains how an equivalent norm underlies recent monopolization cases. The Author concludes that the law should not require business practices to maximize social welfare to pass muster under the antitrust laws. As tools of public policy directed at unilateral market behavior, antitrust and regulation have long played distinct, though complementary, roles. Natural-monopoly regulation has as its immodest goal the maximization of consumer welfare by simultaneously imposing universal service obligations and spurring the efficiencies associated with competition through the imposition of various behavioral constraints. That such regulation has widely been seen as ineffectual should in itself suggest that antitrust needs a distinct focus. Enforcement actions directed at welfare-enhancing practices improperly conflate antitrust and regulation. The consumer is likely to be the ultimate victim.
PLIVA Shields Big Pharma from Billions, Cuts Consumers' Rights,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol49/iss3/9