Loosening Antitrust Law
Though not thought of as an instrument of public safety, antitrust law is often considered a proper tool for controlling private standards-
setting. Strengthening the influence of antitrust law is always a popular proposal. (Who wants to defend "trusts" or "combinations"?) Such proposals are particularly popular because more substantive suggestions for controlling private standards-setting are lacking. In the area of standards and certification, the FTC houses some of the strongest advocates of increased antitrust scrutiny. These staff attorneys place their hope in stricter antitrust enforcement largely because the proposal to regulate standards-setting by rule was abandoned by the commission under President Reagan.
There are two reasons for restraining this enthusiasm for controlling private standards-setting through antitrust law. First, reducing one type of error often increases another type. Stricter antitrust enforcement would probably eliminate some of the worst standards currently in use, but it would probably also eliminate some of the good ones. This study suggests that producers are increasingly crying "antitrust" to intimidate standards-setters from taking socially desirable actions. Stories about antitrust law inhibiting otherwise desirable actions are almost as common in the private sector as those about liability law. Certain metal chimney producers raised this argument with UL and were effective in keeping UL from upgrading the standard, even though research results from NBS support such a move. Antitrust considerations were also instrumental in keeping AGA Labs from adopting ODS technology that was produced by only one company. Increasing the strength of antitrust law may well decrease the propensity to upgrade private standards.
The second reason for restraint is that antitrust law threatens to heap undesirable administrative costs on the private sector. That is practically the intention of those pushing the due process argument. As two members of the Supreme Court realized in the Indian Head case, "insisting that organizations like NFPA conduct themselves like courts of law will have perverse effects."[19] One effect is that due process itself can be exploited for anticompetitive reasons. The number of appeals to NFPA's Standards Council has increased to the point where it threatens to overburden the system. Higher administrative costs are likely to result in fewer standards and less frequent updating. The antitrust influence also threatens to burden the private sector with perhaps the worst aspect of public regulation: the judicial second-guessing that follows on the heels on most standards. The current level of discussion about antitrust and standards-setting is uninspired, relying on contrived distinctions that classify NFPA as "commercial" and the CPSC as "political."[20] At the very least, antitrust doctrine should be reexamined
in a manner that recognizes the relevant institutional similarities and differences between public and private standards-setting. It should also be recognized that proposals to strengthen antitrust enforcement might actually be counterproductive, eliminating more desirable standards than undesirable ones. As Maitland argues, there are good reasons to permit more collective action by business organizations.[21] Whether a loosening of sorts is possible without allowing an undue amount of undesirable activity is worth examining.