反垄断执法：竞争执法者如何破坏竞争

JONATHAN M. BARNETT|MARCH 2026 Refashioning U.S. antitrust in the mold of the EU’s weaker probative burdens and categoricalprohibitions would adversely impact U.S. global competitiveness and innovative dynamism, KEY TAKEAWAYS America pioneered antitrust, anchoring it in the consumer welfare standard. But Europe’sstructuralist approach—epitomized by the Digital Markets Act—now shapes global Whereas the U.S. framework requires proof of harm to competition and is neutral towardfirm size, the EU model prioritizes decentralized markets and “fair” competition. The past 50 years have shown which is better. The U.S. effects-based model hascoincided with dynamic cycles of creative destruction and cutting-edge technological DMA-style presumptions reduce underenforcement risk but increase false positives. Bycondemning conduct without balancing efficiencies, they suppress scale and scope- In platform markets, scale and scope can lower costs, enable ecosystems, and fund riskyR&D. Structuralist merger challenges, including “killer acquisition” theories, can chill This is a critical juncture for antitrust: We can preserve an evidence-based framework thatbalances error costs or adopt ex ante regimes favoring certain market structures. The CONTENTS Key Takeaways................................................................................................................... 1Introduction....................................................................................................................... 2Convergence and Divergence Between U.S. and EU Antitrust.................................................. 5Reconvergence: The Brussels Model and U.S. Antitrust Populists............................................ 6An Inconvenient Fact for the Brussels Model......................................................................... 7The Overlooked Error Costs of “Big is Bad” Antitrust.............................................................. 9Why Big Is Sometimes Good ............................................................................................ 9 INTRODUCTION Over the past several decades, antitrust regimes have proliferated around the world. In the1980s, fewer than 30 countries had antitrust or competition laws, whereas today, over 130 countries have them.1While the United States pioneered antitrust law with passage of theSherman Act in 1890, the wave of antitrust globalization over the past half-century has tended torely on European competition law as the normative model. By contrast, the U.S. antitrust model,as it has developed through judicial decisions and regulatory guidelines, faces significant While EU courts and regulators have sometimes adopted certain methodological or substantiveelements of U.S. antitrust, the EU and U.S. approaches ultimately reflect differentunderstandings of the role of competition law in market-driven economies. Whereas EUcompetition law has tended to reflect an “ordoliberal” tradition that seeks to preserve In digital markets in particular, EU competition enforcement arguably reflects a structuralist biasagainst large firms and high market shares as a matter of principle, accompanied in some cases by calls for “digital sovereignty” that raise geopolitical implications.2Under EU competition law,regulators at the EU and national levels have principally targeted large U.S. “Big Tech” firms,resulting in over 60 antitrust cases as of year-end 2025 and massive fines in just the past three These interventionist tendencies culminated in the enactment in 2022 of the Digital Markets Act(DMA), which essentially adopts per se liability rules for certain practices undertaken by the largest digital platforms—all but two of which are based in the United States.4Implementationof the DMA has put in place a quasi-administrative process involving repeated interactionsbetween regulators and platforms, appeals of regulatory determinations, and periodicsubmissions of compliance reports, compounded by an overlapping grid of EU-level and national- The DMA’s ex ante enforcement approach, implemented through categorical prohibitions ofcertain practices when undertaken by the largest digital platforms, contrasts with the continuedex post and evidence-based enforcement approach that characterizes U.S. antitrustjurisprudence and agency policy. Starting with the Supreme Court’s landmark 1977 decision in Continental T.V. Inc. v. GTE Sylvania Inc., the federal judiciary has consistently rejected antitrust Under EU competition law, regulators at the EU and national levels have principally targeted large U.S.“Big Tech” firms, resulting in over 60 antitrust cases as of year-end 2025 and massive fines in just The EU’s new regulatory approach toward antitrust enforcement has elicited admirers andimitators around the world through what has become known as the “Brussels effect.” In the viewof many policymakers and scholars globally, the EU model has offered a superior alternative t