The legislative history of the Sherman Act re-examined.

Hazlett, Thomas W.

According to Robert Bork's influential analysis, the Sherman Act was expressly instituted by the 51st Congress to advance consumer welfare, but has often been misinterpreted by federal courts handing down anticonsumer decisions. This paper suggests that the political coalition backing the 1890 antitrust statute sought multiple social ends and did not faithfully seek to impose economic efficiency. The key evidence includes historical economic trends, congressional debate, the legislative agenda of Senator John Sherman, and the political conflict generated by the most contentious (and most electorally important) issue of the 51st Congress: the highly protectionist McKinley Tariff Act.

I. THE CONSUMER WELFARE HYPOTHESIS

Economists have singled out the Sherman Antitrust Act as a uniquely proconsumer piece of legislation. While the general economic analysis of political processes has proceeded from George Stigler's presumption that "[A]s a rule, regulation is acquired by the industry and is designed and operated primarily in its benefit" (Stigler [1971, 114]), no similar cynicism has enveloped the nation's preeminent antitrust statute. Strong evidence that the Federal Trade Commission Act of 1914 was shaped by the protectionist vision of Louis Brandeis (McCraw [1981]), or even a solid economic consensus as to the anticompetitive sentiment behind the 1936 antitrust law, the Robinson-Patman Act (see Sowell [1980, 210]; Ross [1984, 243]; Schwartz [1986]) has failed to cloud the Sherman Act's good name. As Stigler himself has concluded: "I like the Sherman Act So far as I can tell, it's a public interest law--in the same sense in which I think having private property, enforcement of contracts, and suppression of crime are public interest phenomena" (Stigler [1984, 46]; see also Stigler [1985]).[1]

This proconsumer view of antitrust is all the more ironic in light of recent dissatisfaction with anticonsumer consequences of antitrust policy generally. (See Goldschmid et al. [1974]; Demsetz [1978]; Baxter [1980]; Brozen [1982]; Armentano [1982]; Johnson [1983]; Baumol and Ordover [1985]; Hazlett [1986]; Bittlingmayer [1992]). There is widespread concern that antitrust law has been employed against competitive market rivalry. Moreover, the central paradox of an 1890 antimonopoly law remains: Why should an economy rapidly expanding outputs in virtually all major industrial sectors move to quash restrictions of output (Baxter [1980], DiLorenzo [1985]), particularly when such output increases were intrinsically tied to the emergence of large corporate forms (Chandler [1977])? It is also troubling that the Interstate Commerce Act of 1887, generally rejected as a proefficiency measure, occurred under such close and similar political auspices (Hilton [1966]). Indeed, a recent re-examination of the Commerce Act has nicely revealed a multiple interest group demand for legislation (Gilligan et al. [1989]). Perhaps, the consumer welfare model differs sharply from the popular notions of monopoly that the Sherman Act sought to discourage in law. Yet, this would tend to jeopardize the notion that the Act was wholly proconsumer. And American economists of the Sherman Act era, in typically viewing competition as a dynamic market phenomenon, largely rejected the antitrust approach as failing to advance the consumer's long-run interests (DiLorenzo and High [1988]).

The proconsumer view of the Sherman Act has been most thoroughly elaborated by Robert Bork, who writes: "The legislative history of the Sherman Act displays the clear and exclusive policy intention of promoting consumer welfare" [1978, 61]. While competing motivations for antitrust legislation were admittedly advanced, with only trivial exceptions "It is impossible to find even colorable language suggesting most of the other broad social or political purposes that have occasionally been suggested as relevant to the application of the Sherman Act" (Bork [1966, 42]). The law, argues Bork, should be interpreted as wholly devoted to maximizing economic efficiency, for even though "The legislators did not, of course, speak of consumer welfare with the precision of a modern economist, their meaning was unmistakable'' [1966, 10]. And, more inclusively: "Congress' position with respect to efficiency cannot be explained on any hypothesis other than that the consumer welfare was in all cases the controlling value under the Sherman Act" [1966, 26].

The policy importance of this interpretation is vast. Antitrust courts have repeatedly found various "noneconomic" grounds for preserving particular firms or market forms, the classic being Justice Peckham's concern over the "small dealers and worthy men" (U.S.v. Trans Missouri, [1897]) who deserved a judicial reprieve from competitive extinction. This line of reasoning forms the basis of the protectionist thrust in antitrust law. In his famous Alcoa decision, Judge Learned Hand supplies the paradigmatic counterefficiency hypothesis:

Throughout the history of these [antitrust] statutes, it has been constantly assumed that one of their purposes was to perpetuate and preserve, for its own sake and in spite of possible cost, an organization of industry of small units which can effectively compete with each other. (148 F.2d. 416,429, 1945)

It is this interpretation which Bork finds everywhere in the courts, and nowhere in the Congress of 1890, and which has led antitrust to be "a policy at war with itself." This paper seeks to explore evidence suggestive of an alternative hypothesis that, similar to other special interest legislation, the Sherman Act was primarily intended not to improve consumer welfare but to satisfy the demands of an array of political interest groups, including the facilitation of rent creating legislation by the Republican congressional majority.

II. SENATE DEBATE

The Senate debate on the Sherman Act evidences several anticonsumer turns. In an alarmingly prescient discussion concerning the possibility that the Sherman Act would be used to attack economically efficient firms, Senator Kenna (West Virginia) questioned the Act's Section 2, outlawing monopolization:

Is it intended...as the section seems

to indicate, that if an individual en - gaged in trade between States...by

his own skill and energy, by the

propriety of his conduct generally,

shall pursue his calling in such a

way as to monopolize a trade, his

action shall be a crime under this

proposed act?...

Suppose a citizen of Kentucky is deal - ing in shorthorn cattle and by virtue

of his superior skill in that particular

product it turns out that he is the

only one in the United States to

whom an order comes from Mexico

for cattle of that stock for a con - siderable period, so that he is con - ceded to have a monopoly of that

trade with Mexico; is it intended by

the committee that the hill shall make

that man a culprit? (21 Cong. Rec.

3151)

Senator Gray (R-Delaware) arose to offer an amendment to limit monopolization to those "who shall combine or conspire with any other person," and, therefore, to clearly exempt from the Act a person (or firm) who gained a monopoly "on his own." It is instructive that the members of the Judiciary Committee3 (who had, in actuality, written most of the bill and were energetic in pushing it through the Congress) denounced the Gray amendment as unnecessary because, as Senator Edmunds responded to Kenna's hypothetical example, "Anybody who knows the meaning of the word 'monopoly' as the courts apply it, would not apply it to such a person at all" (21 Cong. Rec. 3151). But Mr. Gray, honestly admitting that he was ignorant of the legal interpretation the courts had attached to "monopoly,"4 suggested that "we avoid the danger by this amendment of incorporating in the bill words that are not susceptible of exact legal interpretation, and we confine the provisions of this bill to an inhibition of the combination or conspiracy to monopolize, which we all agree should be the object of its denunciation" (21 Cong. Rec. 3152).

"All agree[ing]" in their aims or not, the bill's backers were steadfast in protecting the Act from Gray's proposed amendment. Senator Hoar informed the doubters that the courts, under common law, entertained an exact standard of monopoly, which was

a merely technical term which has

a clear and legal signification, and

it is this: It is the sole engrossing

to a man's self by means which pre - vent other men from engaging in

fair competition with him. (21 Cong.

Rec. 3152)

But this definition is hardly a neat, technical delineation (as a century of expensive litigation has shown),s and instantly raises precisely the questions Mrs. Kenna and Gray were keen to ask: What constitutes "fair competition"? Is ruthless efficiency, which drives competitors to extinction, "fair"--or "the sole engrossing to a man's self by means which prevent other men from engaging in fair competition"? The sharp deviation from common law which Sherman Act enforcement soon took (Grady [1990]) only adds to this confusion. The senators were able to stare the "antitrust paradox" squarely in the face as they sat in session in 1890.

They flatly rejected Gray's suggested amendment to clarify the legislation on a simple voice vote.

The need to clear up any such confusion was made apparent by the overtly protectionist congressional sentiment which surfaced in support of the Sherman Act without objection from the bill's backers (some of the sentiment flowing from the bill's backers). Judiciary Committee member Senator George (Mississippi) spoke for the bill by attacking the "trusts":

By use of this organized force of

wealth and money the small men

engaged in competition with them

are crushed out, and that is the great

evil at which all this legislation ought

to be directed. (21 Cong. Rec. 3147)

Senator Edmunds attacked the trusts even though "for the time being the sugar trust has perhaps reduced the price of sugar, and the oil trust certainly has reduced the price of oil immensely" (21 Cong. Rec 2726). And Congressman Mason sang his praises of the Sherman Act thusly:

Some say that the trusts have made

products cheaper, have reduced

prices; but if the price of oil, for

instance, were reduced to one cent

a barrel it would not right the wrong

done to the people of this country

by the 'trusts' which have destroyed

legitimate competition and driven

honest men from legitimate business

enterprises. (21 Cong. Rec. 4100)

III. THE POLITICAL ECONOMY OF SENATOR JOHN SHERMAN

If Senator Sherman possessed any longlived commitment to the alleged efficiency goals of his Act, he kept them to himself.[6] In a 382-page volume of his letters (sent between 1837 and 1891) to his renowned brother, General William Tecumseh Sherman, the subject of monopoly (or antitrust, cartels, pools, price-fixing, collusion, or industrial combinations) is raised not once. In John Sherman [1906], his biographer, Theodore E. Burton, spends just 12 of 429 pages on the trust question, all of it in reference to the Sherman Act. Most of this discussion concerns Sherman's legal and political views on the matter; what economic analysis there is involves Sherman's Senate speech on March 21, 1890 and one other item of interest: Sherman, writes Burton, "attacked the theory that such combinations reduced prices to the consumer by better methods of production. All experience showed, he said, that this saving of cost went to the pockets of the producer" (p. 360). Of course, the analysis is false: cost reductions lower output prices and (excepting the special case of perfectly elastic input supplies)7 raise profits.

This reveals that Sherman's statement that the law "will distinguish between lawful combinations in aid of production and unlawful combinations to prevent competition and in restraint of trade" (21 Cong. Rec. 2456), clarifies the issue a good deal less than Bork supposes: "Sherman could hardly have said more clearly that the law was to delegate to the courts the task of distinguishing between those agreements and combinations which increase efficiency and those that restrict output" [1966, 36]. An equally convincing interpretation would hold that Sherman was attacking even output-expanding combinations which, he claimed (erroneously) would not benefit consumers. To Senator Sherman, "combinations in aid of production" may have meant aid to small, beleaguered firms forming cartels as a defense against the gales of competition. Sherman's class of inoffensive combinations may have simply been limited to localized corporations or some other ad hoc categorization unrelated to criteria of economic efficiency.

The latter view is also supported by comments on the trusts in Sherman's autobiography to which are devoted but five pages of 1216, mostly consumed again by his March 21 speech, a printing of the final bill, and a scant legislative history (in contrast, he devotes 77 pages to his discussion of the tariff). Sherman's sentiments regarding the control of "one man" and the profits accumulated by trusts, concomitant with his rejection of cost-efficiencies being realized in the form of lower prices, belies a nonefficiency concern for the combination issue. This concern was ably articulated in his March 21 Senate speech, his major public address on the issue:

If the concentrated powers of this

combination are intrusted to a single

man, it is a kingly prerogative in - consistent with our form of govern - ment, and should be subject to the

strong resistance of the state and

national authorities. If anything is

wrong, this is wrong. If we will not

endure a king as a political power

we should not endure a king over

the production, transportation, and

sale of any of the necessaries of life.

If we would not submit to an em - peror, we should not submit to an

autocrat of trade, with power to pre - vent competition, and to fix the price

of any commodity. (Burton [1906,

359])

One interpretation of this passage is that Sherman is concerned with "noneconomic" (or nonefficiency) issues, such as the distribution of wealth and power. This is precisely the position Judge Leaned Hand took, in fact, in Alcoa. Hand's interpretation is disputed by Bork, who focuses on Sherman's allusion to the state-like power of combinations and the "power to fix the price of any commodity" [1966, 39]. This, deduces Bork, is synonymous with "the power, in short, to injure consumers" (ibid.). Yet it is not clear. In that the senator was not of the "Chicago School," his attack on price-fixing may have been motivated by distributional, and not efficiency, issues. Moreover, as an eloquent politician, Sherman's reference to prices may involve little more than aplomb. While Bork sees the price-fixing concern as key and the "noneconomic" rhetoric as gratuitous, an alternative perspective could easily reverse the shadings--as Learned Hand plainly did.

It is at just this point that we should seek out some evidence to separate these competing interpretations of Sherman. Fortuitously, Sherman and the 51st Congress provide just such an issue to serve as a test: "The most important measure adopted during this Congress," wrote Sherman in his autobiography, "was what was popularly known as the McKinley Tariff Law" (Sherman [1895, 1083]). Passed on October 1, 1890, the tariff was "a matter of constant debate in both houses" between 1883 and 1890 (ibid., 1085), as opposed to the monopoly law, which came and went with little discussion.[8] Whatever cross-currents were evidenced in the analysis of the trust question, the tariff was then well understood as a restriction of output resulting in dead-weight losses. Most conveniently, the tariff appears on a neat continuum in our consumer welfare analysis. Compared to a free-market cartel which restricts output and still manages to sustain itself against potential competitors, a tariff, which enjoys state-enforcement of output restrictions, is bound to create a clearly more objectionable interference with "free and full competition." Certainly, this was the prevailing, "orthodox" view; according to mainstream economists of the day, monopoly problems "would arise only if such groups or classes were permitted to appropriate the political powers of the state...and create... 'artificial' monopolies by tariff and other class legislation" (Thorelli [1955, 115]).

Contrary to the public interest hypothesis, not only was Senator John Sherman a Republican (high tariff) vote on Senate tax questions, he was one of the protectionist system's most vocal proponents.9 Sherman went to some lengths, in fact, to differentiate his views from the "least burden" (pro-efficiency) approach in public finance:

On the one hand, the Democratic party believes in a tariff for revenue only, sometimes they say, with incidental protection, but what they mean is a tariff intended solely to raise money to carry on the operations of the government. On the other hand, the Republican party believes that we should so levy the duties on imported goods that they not only yield us an ample revenue but that they do more; that they would protect, foster, and diversify American industry. We think that this tax ought to be put at such a rate as will give to our people here a chance to produce the articles and pay a fair return for the investment made and for the labor expended at prices higher in this country than in any country in the world. That is the first rule, and I believe that the rule has been carried out, and I think liberally, and so as to secure increased production at home and a larger market. (Sherman [1895, 10861)

Surely, any attempt to set this statement in a pro-consumer lexicon based upon Sherman's parting assurance that a tarrif creates "increased production and a larger market" would be highly tenuous. In fact, Bork excuses Representative Taylor's (ROhio) anticonsumer position on such reasoning: "Even when defending the protective tariff...Taylor did so on the ground that it created lower prices beneficial to consumers. Despite the fallacy of his argument, this demonstrates that Taylor, like most other legislators, was not willing to argue for a policy of preferring producers to consumers" [1966, 20]. Exactly correct: he was unwilling to argue for it; he was only willing to vote, lobby, and politick for it.[10]

The senior senator from Ohio was, by all accounts, a polished political figure with staying power. As such, he was in the forefront of devising GOP strategy, often having to fight off zealous factions of the party who endangered long-term Republican success by seeking excessive industry protection. As big business became an issue of popular concern, "Senator Sherman thought and said frequently before 1889 that the trusts could only be reached through the revenue laws" (Tarbell [1912, 200]). Yet, radical Republican protectionists and particularly the formidable Senator Nelson Aldridge (R-R.I.) would have nothing to do with a lowering of tariffs in "trust-dominated" industries.

The Democratic president, Grover Cleveland, had effectively welded the tariff and trust questions together in a famous 1887 speech, and during the Sherman Act debate populists had charged that "Tariffs are the mother of trusts" (Telser [1987]). Hence, Senator Sherman's instant concern about conspiracies in restraint of trade other than those nurtured by the protective tariff was viewed as cynical. "At all events," wrote Tarbell of the Sherman Act, "the measure was passed ahead of the tariff bill. Thus, an answer was ready for the critics. As Senator Morgan said, 'The bill was a good preface to an argument upon the protective tariff"' [1912, 201].

IV. THE MCKINLEY TARIFF AND THE

SHERMAN ACT

Lately, with a great shout and flour - ish of trumpets, you passed a bill

against trusts. When your actions in

this bill are considered it is impos - sible to believe you were in earnest

in passing that measure. You now

give the trusts everything they want.

(Representative William Elliot [D - S.C.] debating the McKinley Tariff

of 1890, 21 Cong. Rec. 291)

Tariff rates had been raised substantially during the Civil War, but had not been pared postbellum. Table I shows the persistence of a high tariff.

The goal of the 1890 tariff reform was to lower revenues--the U.S. federal budget in 1888-89 had run a $53 million, or 13.4 percent, surplus--and this, the Congressional leadership candidly proposed to accomplish via a perverse Laffer Curve effect. William McKinley, Sherman's Ohio colleague and Republican Speaker of the House, "accepted the principle...that the way to reduce revenue from customs is to make foreign goods which might compete with domestic products too dear to buy" (Tarbell [1912, 190]). In answering Democratic critics who charged that the McKinley bill would increase taxes and, thereby, revenues, the Congressman boldly responded:

That statement is entirely mislead - ing...[T]here is not a member of the

House on either side, who does not

know that the very instant you have

increased the duties to a fair pro - tective point, putting them above the

highest revenue point, that very in - stant you diminish importation and

to that extent diminish the revenue.

(Tarbell (1912, 190])

Knowledge of the tariff's anticonsumer consequences was entirely common. The New York Times, for instance, made a nearcrusade out of highlighting the pro-monopoly impact of protectionism, and in tying the trust question to the tariff. "In January of 1888, one month after Cleveland's tariff message, the Times ran 20 editorials denouncing combinations. The majority of these articles showed how specific combinations were fostered by the high protective system" (Gordon [1953, 120]). This was a point incessantly made by Democrats both in the Congress and out. Gordon [1953, 163] even cites an arresting passage from the Congressional Record (12 September, 1888, p. 8521), wherein Senator Hoar took issue with a Democratic senator (George from Mississippi) for limiting his political attacks only to trusts protected from competition by tariffs:

Does it not occur to the Senator from

Mississippi that it might be well to

include some of these trusts...which,

notably the Whisky, the Cotton-Seed

and Cotton-Oil Trusts, the Anthracite

Coal Trust, and the Standard Oil

Trust are not protected by tariffs?

Why does the Senator steer so care - fully in his proposed legislation not

to hit these great trusts...?

Indeed, Senator Gray was again quick to offer an amendment to the tariff, one which presumably promoted consumer welfare. It read, in part:

That the President may suspend the

rate of duty on any imported article

when, in his judgment, the produc - tion, manufacture, or sale of such

articles is monopolized...by any trust

or combination. (21 Cong. Rec. App.

291)

Gray was clearly at loggerheads with the GOP leadership; his tariff amendment received healthy Democratic support, but only two Republican votes in the House (21 Cong. Rec. App. 291).

Critics of the tariff were only too eager to relate the problem of protectionism to the redistribution away from consumers and the deadweight losses from reduced trade. One Democratic senator noted that, "For the want of cheaper raw material, in the years 1888 and 1889 one hundred and twenty manufacturers of woolen goods and dealers in goods went into bankruptcy and the establishments which did not fail are to be kept going by duties on woolen goods which for the most part are prohibitory of foreign importations and are an unspeakable grievance to the consumers" (21 Cong. Rec. 7701). Representative Charles Tracey of New York complained that tariffs limited domestic markets (i.e., restricted output) by noting that "in my district, it is the manufacturers that are loudest in complaints of injury done by this too high tariff" (21 Cong. Rec. App. 292). He quotes the mayor of Albany, who testified:

I am informed by the head of one

of the largest manufacturing estab - lishments in this city that the tariff

taxes his establishment is required

to pay annually from which it derives

no benefit, but, on the contrary, injury

in the curtailment of its market, are

fully ten times larger than the entire

amount of taxes it pays .... (Ibid.)

The Taffiic Vote

Robert Bork believes that evidence of the Sherman Act's single-minded concern for consumer welfare is to be gleaned from the public statements of the Senate Judiciary Committee which framed the Act. A more subtle reading of the disposition of these legislators vis-a-vis consumer welfare maximization would be to scrutinize their votes on the McKinley Tariff of 1890. We have seen that Senator Sherman was himself an outspoken backer of the measure. It is also interesting to note that every Republican member of the Judiciary Committee voted for the tariff (21 Cong. Rec. 9113). The fact that each of the bill's important Senate backers registered an up-front anticonsumer vote brings the efficiency explanation of the Sherman Act into question.

A further gauge of protectionist sentiment can be constructed from the House of Representatives tariff vote. The state congressional delegation proportion which votes pro-McKinley Tariff is a proxy for that state's protectionist (anticonsumer) leanings. (Even where a state was represented by a small contingency, such congressional votes should be very suggestive of the influence of protectionist political constituencies, as the McKinley Act was hotly debated, was that session's key vote, and was of great interest to industry lobbyists and the popular press alike.) In Table II, we observe the House tariff vote by state delegation ranked in order of protariff sentiment. Each of the Republican senators on Judiciary hailed from a visibly "protectionist" state. Only Evarts' New York (at 57 percent pro) fell below 83 percent ' "protectionist".

The vote in the House of Representatives, where a substantial anti-Sherman sentiment was recorded, supports the view that the Sherman Act and the McKinley Tariff were seen by the legislators as fundamentally related. Of the 62 House Democrats to vote "No" on the Sherman Antitrust Act, none voted "Yes" on the McKinley Tariff (see Table III). Conversely, of the 117 Republican congressmen to vote "Yes" on the Sherman Act, none voted "No" on the McKinley Tariff.

Examining the aggregate House vote for the two measures in a two-by-two matrix yields strong results. Table IV reveals that, among those congressmen who voted "Yes" or "No" on both bills (i.e., excluding those who abstained on either), 142 members voted identically on the bills, while only 17 crossed over (i.e., voted "Yes" on one and "No" on the other). The hypothesis that the votes on these laws were independent of each other can be dismissed at the 99.9 percent confidence level (%2=90.3). Adding abstentions into the "No" column for both votes waters down the results (as would be anticipated from inclusion of data which can be interpreted as half-yes, half-no), but independence can still be rejected at the 99.9 percent confidence level (%2--43.3). A similar pattern does not evidence itself in the Senate, where there was only one "No" vote on Sherman, and a close party line vote on the tariff. (This distribution is without proconsumer implications. The proconsumer thesis would be suggested by a high correlation between "Yes" votes on Sherman and "No" votes on the tariff.) Still, the clear pattern exhibited by Republican members of the Senate and by both parties in the House suggests that those who voted for the Sherman Act were likely to abandon the consumer welfare cause on the tariff, while those who promoted consumer welfare by opposing the tariff were highly likely to oppose the Sherman Antitrust Act. This is direct electoral evidence against the proconsumer hypothesis.

V. CONCLUSION

Looking simply at the history of the

bill from the time it was introduced

in the Senate until the time it was

finally passed, it would be impossible

to say what were the views of a

majority of the members of each

house in relation to the meaning of

the act. All that can be determined

from the debates and reports is that

various members had various views.

United States v. Trans Missouri Freight

Association 1897, 318

A politically optimal distribution of rents is, a priori, the intent of legislation. For a law to be unicausal requires an overwhelming influence to dominate the legislative process. Given the numerous checks embedded in the American legislative process, multiple-purpose outcomes (or log-rolling) are likely to be the rule. The Sherman Act appears not to be an exception.

The evidence reveals that the Sherman Act was not part of a generally proconsumer campaign to remedy market power problems in the U.S. economy. Rather, it emerged as a political compromise with the following characteristics: (1) It provided incumbent Republican legislators (and their prevailing distributional coalition) with a cosmetic defense on the trust question, in anticipation of the upcoming consumer-to-industry transfers in the McKinley Tariff. (2) It gave advocates of small, localized firms some prospect of a buffer against the waves of creative destruction. (3) It did not augur to be a particularly consequential measure, as only twenty-two government actions were brought through 1904 (Posner [1970, 366]); indeed, it was not thought to do much more than codify and federalize the common law (Letwin [1965]). Senator Hoar believed after passage of the Sherman Act that cartels were still legal when "reasonable," and the actual enforcement of anticartel policy in U.S.v. Trans Missouri [1897] and U.S. v. Addyston Pipe [1898] was such a shock to the marketplace that the great merger wave was tripped (Bittlingmayer [1985]). (4) Hence, the prevailing distributional coalition got its legislative priority-higher tariffs--at what it took to be a good price. Populist critics of big business found it difficult to oppose the Sherman Act, while large scale corporate interests found it unnecessary, particularly as how it bought the GOP room to maneuver on its tariff hike.

The central anomaly in American antitrust legislation is that, were eliminating monopolistic distortions the aim of public policy, the late 19th and early 20th centuries would appear a strange moment for such concerns to emerge. The American economy was at just that point experiencing vigorous expansions of output, firms were aggressively lowering prices, bidding up real wages, introducing new products and industrial techniques, and drastically shifting cost curves downward (Baxter [1980]). Moreover, new-found technologies were causing dramatic structural changes in the U.S. economic landscape such that the exploitation opportuinities of local monopolies were everywhere evaporating. It may well be said that the distinguishing economic characteristic of the activist antitrust legislative period (roughly 1880-1914), paradoxically, was a quantum leap in the cross-elasticities of substitution for American consumers.[13]

It would appear mysterious if the 51st Congress had attempted to legislate a late twentieth century analytical model into policy existence, any more than contemporary Congresses are motivated by the welfare implications of neoclassical price theory. And they would not have been shown the way to the Sherman Act by the economics profession. According to Sanford Gordon, "...a big majority of the economists conceded that the combination movement was to be expected, that high fixed costs made larger scale enterprise economical, that rivalry under these circumstances frequently resulted in cutthroat competition, that agreements among producers were a natural consequence, and the stability of prices usually brought more benefit than harm to the society. They seem to reject the idea that competition was declining or showed no fear of decline" ([1963, 166]; see also Wells [1889]; Gunton [1899]).

If the Sherman Act had been crafted in the spirit of minimizing allocative inefficiencies, it would have been a theoretical case of immaculate conception. There was not an economist eligible for paternity. As Stigler muses: "A careful student of the history of economics would have searched long and hard on July 2 of 1890, the day the Sherman Act was signed by President Harrison, for any economist who had ever recommended the policy of actively combatting collusion or monopolization in the economy at large" [1982a, 3].

This paper, then, has questioned the unicausal efficiency explanation of the Sherman Act's origin with direct and indirect evidence of decisive anticonsumer elements in the 51st Congress. It points towards a more economic appraisal of the intent of this critical bill of public policy. "The world is full of mistaken policies," observes Stigler [1982b, 10], "but they are not mistaken for their supporters."

That "A bill to protect trade and commerce against unlawful restraints and monopolies" would have unquestionably been of greater benefit to U.S. consumers had it been taken as a pro-efficiency mandate, is not, in itself, evidence that this is what Congress intended. Indeed, in light of our lengthy "Antitrust Paradox," the riddle may largely be solved by reflection upon congressional intent; a judicial legacy of hostility to efficiency and conflicting priorities in antitrust does not contradict the vision of the 51st Congress, but mirrors it.

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