Competition policy during pandemics: how to urgently produce healthcare goods and services while avoiding economic disaster

Abstract

Abstract Pandemics present two emergencies: a war against a pathogen and an economic recession. Historically, the US has been forced to relax its antitrust enforcement policies during its largest wartime mobilizations in order to urgently produce goods and services needed in the war effort. Likewise, when the COVID-19 pandemic began, companies should have been allowed to collaborate with each other and with the US government to adequately respond to the increased demand for healthcare goods and services. Guidance from antitrust agencies during the coronavirus pandemic suggested a willingness to allow such collaborations, but the guidance lacked specificity. This article suggests specific policies that the antitrust agencies should implement during pandemics in order to give companies confidence that they can legally engage in collaborations that will hasten the production and distribution of urgently needed healthcare goods and services. However, relaxing antitrust laws has historically caused and prolonged economic downturns. Thus, during a pandemic, the federal government should relax antitrust laws, but that relaxation could exacerbate the inevitable economic downturn caused by social distancing policies. Accordingly, this article suggests how the US government could use non-antitrust regulations to mitigate the systemic financial risk created by that relaxation in antitrust laws.