Here is Herbert Hovenkamp’s argument in favor of under-deterrent antitrust rules (taken from The Antitrust Enterprise). The insight underlying it — that antitrust intervention is only justified if the costs of “false positives” (i.e. mistaking pro-competitive for anticompetitive conduct) are not too high — comes from Frank Easterbrook’s article The Limits of Antitrust.
When a particular form of behavior is too complex for reliable analysis, then the only defensible antitrust rule is to let the market rather than the courts control. Of course, Congress can always intervene, and further development in our tools of analysis may permit more definite conclusions later. But a court is in hazardous territory when it assumes that it can make society wealthier by condemning a practice whose competitive effects are poorly understood. The basic rule should be nonintervention unless the court is confident that it has identified anticompetitive conduct and can apply an effective remedy.
Antitrust is not good at transferring wealth, and cannot be defended on that basis in any event. Nor does it have any moral content of its own, and is not well designed to provide rules of business ethics. To be sure, we may wish the jury’s values about fairness to trump the harsher business judgments made by firms in competition. But the whole purpose of antitrust is to make markets work better, and “better” means more efficiently, Furthermore, antitrust as an enterprise is dedicated to the proposition that markets work tolerably well as a general mater, and enduring failures are the exception rather than the rule. So intervention must be justified. If the judge does not hear a fairly robust theory explaining why certain behavior is anticompetitive . . . then intervention is not justified (Hovenkamp, 47-8).
Note that this is not an argument against market intervention or wealth transfers generally. It is, instead, an argument against accomplishing these goals using the antitrust laws. Hovenkamp’s argument for the underlined portion, which is the crucial premise, is that because antitrust is devoted to protecting the market from abuses — i.e. deviations from the norm — “[o]pting to have antitrust at all entails a belief that in most cases the market will produce the correct amount of competition and innovation” (Hovenkamp, 15). Hovenkamp’s view therefore does not follow from any kind of dubious skeptical conservatism.
Note also that Hovenkamp recognizes his argument is contingent: “[t]o the extent that it rets on grounds of administrability, antitrust’s reluctance to advocate a general use of post-Chicago economics [i.e. economics that does not presume that all markets are basically competitive because barriers to entry are low] is a contingent rather than immutable truth. There is nothing inherently wrong with much of post-Chicago antitrust analysis. The problem is that in many cases the analysis has not yet been transformed into rules that a court can apply with confidence that it is making markets work better” (Hovenkamp, 49).
In light of these two nuances, Hovenkamp’s view seems sensible.