Business: New Thrust in Antitrust

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New Thrust in Antitrust Sheer size becomes a target as tough new bills are pressed on Capitol Hill

"Antitrust is one of the battlegrounds upon which the future of capitalism is being fought out." —Former Solicitor General Robert Bork, at last week's TIME conference.

The 1970s have hardly been a happy time for the American Captain of Industry. Pressed hard by environmentalists, consumer activists and Government regulators, he is now coming under fresh attack from trustbusters in the Justice Department, the Federal Trade Commission and the Congress. All are considering ways to expand and toughen the nation's 90-year-old antitrust laws. The new activism, besides making lawyers rich and executives apprehensive, is raising some of the most fundamental questions about the social and political power and the function of U.S. corporations. The basic themes are as old as the debate between Jeffersonians and Hamiltonians, and as new as today's arguments in Congress over a number of proposed antitrust bills.

Is bigness badness? Is the function of antitrust to enhance economic efficiency or to ensure the dispersal of economic power into many hands? Is antitrust becoming, as its critics charge, a hodgepodge of half-baked economic theories and pop sociology that threatens the future of freedom? Or is it becoming, as its champions insist, an ever more important and effective guarantor of that freedom? Seeking answers, Time Inc. last week brought 59 leading corporate officers and economists to Washington for a conference on antitrust. For two days, they heard from and asked questions of 19 speakers, including Government officials, lawyers, law professors, economists and businessmen.

The meeting occurred just as antitrust was being pushed beyond its old boundaries on Capitol Hill and in the courts. Last week the Senate Judiciary Committee approved the so-called Illinois Brick Bill by a 9-to-8 vote, led by Chairman Edward Kennedy of Massachusetts. Prospects for passage in the full Senate and House are doubtful, but, if enacted, the bill would overturn a 1977 Supreme Court decision. Not only could middlemen and retailers sue and collect treble damages from a company for antitrust violations, but so too could individual consumers who join together in class actions. Businessmen fear that the bill would engulf many companies in harassment suits. Often, such suits amount to little more than blackmail: plaintiffs know that companies would rather agree to an expensive out-of-court settlement than endure years of costly litigation.

Many businessmen are already mired in time-consuming antitrust cases. The Justice Department is pressing monumental cases to break up IBM and AT&T, and the FTC is doing the same in a suit against Exxon and seven other oil companies. It is unlikely that the FTC suit will come to trial much before the 21st century, by which time the Government expects oil to play a diminishing role in the nation's economy.

For now, antitrust largely involves traditional questions, such as whether a company conspired to fix prices, divide up markets or drive a weak competitor out of business. A commission appointed by President Carter to review antitrust laws and procedures earlier this year recommended that the standards of proof be relaxed in favor of the Government.