The Politics and economics
of Brazilian Competition Law

Beatriz Kira*

Research Fellow at University College London (UCL),
United Kingdom. PhD in Economic Law from the University
of São Paulo, Brazil. ORCID: 0000-0002-7078-8193.

b.kira@ucl.ac.uk

Received: November 15th, 2022 | Accepted: July 07th, 2023

How to cite: Kira, Beatriz. “The politics and economics of Brazilian competition law”.
Latin American Law Review n.º 11 (2023): 21-52, doi https://doi.org/10.29263/lar11.2023.02

Abstract

Against the renewed international debate on the relationship between competition law and wider social and economic goals, this paper examines the underpinnings of Brazilian competition law. It describes the evolution of the law against the backdrop of the wider transformations in capitalism, and reveals how legal, political, and economic disputes – both domestically and internationally – have shaped its design and implementation. The paper argues that while the foundation of modern Brazilian competition law can be found in a progressive Constitution and in principles that guide the economic order towards the promotion of substantive justice, competition enforcement and scholarship in Brazil have been gradually decoupled from the promotion of socioeconomic rights. This insulation of Brazilian competition practice from wider socio-political concerns was deeply influenced by the epistemological assumptions and the economic methodology of the Chicago School, that have directed competition – in the US and in other jurisdictions – towards formalist notions of efficiency.

Keywords

Competition law, Brazil, political economy, economic regulation

La política y la economía de la ley de competencia brasileña

Resumen

Frente al renovado debate internacional sobre la relación entre la ley de competencia y objetivos sociales y económicos más amplios, este artículo examina los fundamentos de la ley de competencia brasileña. El artículo describe la evolución de la ley en el contexto de las transformaciones más amplias del capitalismo y revela cómo las disputas legales, políticas y económicas, tanto a nivel nacional como internacional, han dado forma a su diseño e implementación. El artículo argumenta que, si bien la base de la ley de competencia brasileña moderna se puede encontrar en una Constitución progresista y en los principios que guían el orden económico hacia la promoción de la justicia sustantiva, la aplicación de la ley de competencia en Brasil se ha desvinculado gradualmente de la promoción de los derechos socioeconómicos. Este aislamiento de la práctica de competencia brasileña de preocupaciones sociopolíticas más amplias estuvo profundamente influenciado por los supuestos epistemológicos y la metodología económica de la Escuela de Chicago, que han dirigido la defensa de competencia, en los Estados Unidos y en otras jurisdicciones, hacia nociones formalistas de eficiencia.

Palabras clave

Ley de competencia, Brasil, economía política, regulación económica

___________________________________________________________________________

Introduction

In July 2021, the newly appointed president of the Conselho Administrativo de Defesa Econômica (CADE), the Brazilian competition authority, gave interviews to the main newspapers in the country stating that, under his leadership, the agency would be “less interventionist” in its approach1 and “choose orthodoxy” when deciding cases.2 The statements were provided in response to questions related to recent policy moves observed in the EU and in the US that point to a willingness to widen the role of competition law in economic policy.3 Around the world, there is growing concern that an overly narrow application of antitrust rules might have ultimately contributed to higher industry concentration and rising economic inequality, leading to calls for legal and policy reforms. Industry-level data seem to indicate that feeble antitrust enforcement helped to magnify winner-takes-most dynamics, leading “firms that have so far achieved market dominance primarily through innovative products and business practices to attempt to entrench their positions by erecting barriers to entry.”4

There is a renewed interest in discussing the goals of competition law, motivated by concerns that the mainstream competition standard, guided by narrow conceptions of consumer welfare, has been unable to supervise the structure of markets effectively and is unfit to address some of the pressing challenges of our time.5 Against this backdrop, CADE’s incoming president argued that although social issues such as economic justice and the environment are important, they are not “the role of the antitrust authority.”6 These statements made in this particular context raise the question: what is the role of Brazilian competition law and how has it changed over time? What does orthodoxy look like when it comes to enforcing Brazilian competition law?

This paper engages with these questions, seeking to contribute to current debates around how best to interpret and apply competition law, and what is the role of competition law in addressing the “multiple and interlocking crises” that pose challenges to contemporary society.7 To do so, it adopts a two-pronged approach. First, it develops a historical narrative that traces the foundations and the evolution of competition law and policy in Brazil, describing how competition law has been designed to shape markets in different historical contexts, in response to inflections in international and domestic political and economic priorities, and influenced by legal and economics scholarship. Secondly, the paper zooms in on one aspect of Brazilian competition law, namely merger control, to show the effects that transformations in the underpinnings of competition law have had on the adoption and review of specific rules that guide the review of concentrations, and on the Brazilian competition authority’s interpretation and application of these rules. This two-level analysis is conducted through a law and political economy (LPE) framework, examining the interaction between law and markets within their social and political contexts. LPE provides powerful lenses through which to study the distribution of political and economic power, to understand the economic organization of society, the implications that different political structures have on the economy, and how cultural and historical factors affect these structures.8

As the paper explains, while the foundations of Brazilian competition policy are found in a progressive Constitution that establishes a charter of justiciable social and economic rights, the implementing legislation and its enforcement reflects more formalist perspectives rooted in neoclassical economics. More specifically, the paper shows that there has been a gradual insulation of Brazilian competition law and enforcement from wider socio-political concerns that have guided its development, and that this process was deeply influenced by the epistemological assumptions of the Chicago School and the law and economics methodology that shaped antitrust laws in the US and in other parts of the world in previous years.9

These arguments are developed as follows. Section one examines the evolution of competition law scholarship in the international context, from the so-called Gilded Age to the emergence of ‘antitrust schools of thought’. Section two then maps legislative debates in Brazil and examines how the interplay between the international literature and internal debates affected the theoretical underpinnings of Brazilian competition law. To illustrate how these forces have shaped antitrust practice in Brazil, section three discusses the substantive enforcement of merger control and the emphasis that CADE’s guidelines put on economic tests and methodologies. The paper concludes with a call to rethink the limits of existing competition frameworks in Brazil and to reflect on to what extent existing rules and prevailing practice demand adaptation.

The Origins of US Antitrust Law

Competition law emerged in the US as a regulatory tool deeply rooted in political economy. However, over the last century, a law and economics approach championed by the Chicago School has arguably become the prevalent approach to antitrust in many parts of the world. This approach to competition law puts an emphasis on economic models and economic efficiency to guide the law’s interpretation and enforcement and has redirected scholarship and practice towards a version of antitrust which largely disregards moral or political considerations.10 The influence of this approach has not been confined to the US. Overall, it remains fairly uncontested that the Chicago School has had an influence on antitrust scholarship and practice in many jurisdictions.11

This section traces the origins of some of the antitrust tenets that are currently at the centre of legal, economic, and political debates. It brings a law and political economy perspective to briefly revisit the foundation of antitrust law and scholarship that has structured the field over the years, from the original Gilded Age of the late ninetieth century to the emergence of influential schools of thought around the mid-twentieth century. In doing so, the historical narrative serves two purposes. First, it evidences the law’s centrality in creating and shaping the economic domain, highlighting the close ties between legal institutions, politics, and the economy. Secondly, it identifies the roots of the “economic style of reasoning”12 in antitrust that has over time dominated and considerably narrowed debates on competition policy, not only in the US but also in Brazil, as the paper will later show.

A. From the Gilded Age to the emergence of Trust-Busters

By the end of the 19th century, as a result of technological innovation and the development of large-scale corporate structures, the US economy was dominated by giant corporations.13 This period, latter dubbed as the Gilded Age, witnessed substantial economic growth and a surge in productivity.14 Technological progress enabled improved productivity and facilitated the integration of mass production and distribution processes, leading to the consolidation of industries for greater efficiency. As Cashman points out, there was a significant shift in the nature of manufacturing firms between the 1870s and the 1900s. While in the 1870s, a manufacturing firm simply referred to a company that produced goods, by the 1900s, several key industries were controlled by a limited number of large corporations that oversaw all aspects of manufacturing: from raw material extraction to production and distribution.15 Firms that capitalized on technological advancements experienced rapid expansion, leaving their less adaptable counterparts behind. The economic advantages of large-scale production during this period were considerable, extending beyond mere efficiency to encompass significant cost advantages. A larger company had greater access to credit, could procure raw materials at a lower cost, and could allocate resources towards research more effectively.16

The rise of corporate power was intimately connected with broader societal changes. The economic prosperity of businesses and industries during this period attracted a substantial number of immigrants, who eagerly sought any available opportunities, and provided a vast pool of cheap labour.17 However, despite the opportunities provided, the emergence of corporate capitalism in the US also exacerbated inequality.18 During the Gilded Age, the enormous profits generated by these new business arrangements were monopolised by a small group of “robber barons” who controlled industrial production.19 As profits soared, the disparities between the wealthy elite and the majority of workers intensified tensions and conflicts, fuelling a demand for government intervention.20 This discontent was not limited to urban areas experiencing a rise in organised labour. The transformation from an agrarian society to a modern industrial State had a profound impact on the agricultural class, generating feelings of grievance and giving rise to movements for improvement. These efforts culminated in the “Granger movement”, an agrarian movement focused on the conditions of farmers and their economic and political challenges.21 The mounting social pressure resulting from increasing inequality intersected with a growing call for governmental oversight of large corporations. As Tony Freyer observed, the economic transformation that gave rise to this new form of capitalism also “spawned social and political tensions, compelling the public and policymakers to decide upon the appropriate response to big business.”22

Within this context, the Sherman Act was enacted in 1900 as an attempt to tackle a wide range of issues. Hofstadter highlights that the goals of this legislation encompassed various dimensions, including economic, political, and social and moral aspects. Economic goals were rooted in the belief in the classical model of competition, which emphasised economic efficiency through competition, although there was no consensus around the specific nature of governmental intervention on trusts. Political goals aimed at counteracting the consolidation of private power and safeguard democratic governance, driven by concerns about the conversion of political power into economic power and by apprehensions about economic decision-making occurring beyond their purview. Social and moral goals, in turn, focused on character development and the preservation of national morale, considering competition as a disciplinary mechanism.23 Overall, the diverse and occasionally contradictory interpretations of the motivations behind the Sherman Act illustrate the rich contextual background that shaped the law. As Sullivan suggests, the political economy of the law should serve as a benchmark when exploring the history of antitrust, highlighting that antitrust law in the United States is not solely a legal framework but also a socio-political statement about society and the role that government should play as a regulator in the market.24

The broad scope of interests surrounding the Sherman Act had a significant impact on both its legal language and subsequent enforcement. While the act employed general language to address the issue of competition, reflecting the diverse range of concerns, it also influenced how the law was subsequently applied.25 Although the US Congress passed the Sherman Act in 1890, it took until the early 1900s for effective enforcement to curb corporate consolidation.26 At the start of the 20th century, a consensus began to emerge amongst policymakers that the rise of big business required government action.27 Leading the antitrust movement were figures such as Louis Brandeis, a legal scholar and US Supreme Court Justice who condemned the economic power held by industry-spanning monopolies.28 Additionally, President Theodore Roosevelt championed progressive policies and advocated more vigorous action in addressing the problems of trusts and monopolies.29 In this period, the US government brought a series of antitrust cases against the large trusts that had emerged over the previous decades, in an effort to address economic concentration.30 A flagship case was the lawsuit against Standard Oil. In 1906, the US DoJ brought a suit against John D. Rockefeller’s Standard Oil due to a long series of abuses and exclusionary practices, including exclusive cartel deals, abuse of its pipeline monopoly, and predatory pricing. The case concluded in 1911, when the Supreme Court considered that Standard Oil had violated the Sherman Act and ruled that the company should be broken-up into 34 constituent parts – including some which grew to become valuable and powerful firms, such as Exxon, Chevron, and Mobil.31 The concerns vocalised by trust-busters in this period to justify legal action were of a distinctively political economy nature; they argued that corporate concentration was not only bad for trade and businesses, but also that concentrated economic power had spilled over into policy and politics, threatening democracy itself.32

B. Structuralism and the Harvard School

In the subsequent decades following the establishment of antitrust regulations, the field of antitrust developed as a scholarly and practical discipline. Economic institutionalism had a clear influence on the emergence of antitrust scholarship in the 1930s, and it dominated economic thinking about competition policy from the 1940s through the 1960s.33 Building on the understanding that markets were frail institutions, that they differed from one another, and that they required significant State intervention to set them right, economists began to suspect that true competition existed only in a few industries. This suspicion motivated scholars to investigate the links between the structure and how markets function, and to look for evidence to explain the great merger movement of the Gilded Age.34

In 1937, economist Joan Robinson published the book The Economics of Imperfect Competition. This ground-breaking work was the first systematic technical analysis of firms with significant fixed costs and diverse products, and provided evidence that such markets were less robust than economists had initially imagined. Indeed, one of Robinson’s greatest contributions was to show that real-world market competition was less than perfect and that, therefore, it is “more proper to set out the analysis of monopoly, treating perfect competition as a special case”.35 Her arguments were influential at the time, although Robinson’s contributions are not always recognised in modern scholarship. Importantly, Robinson formally linked the market structure with the level of competition, leading the way to a novel school of economic thought that became known as the Harvard School.36

Following the articulation by Robinson and other theorists that competition was the exception rather than the rule, and that product differentiation had implications for market performance, antitrust scholarship started to be increasingly preoccupied with anticompetitive practices in product-differentiated markets.37 These views were taken up by mainstream economists, and motivated much of the subsequent inquiries into the working of imperfectly competitive markets – particularly by economists at Harvard University. Notably, these ideas were influential to the studies conducted by Edward S. Mason and Joe S. Bain, two scholars associated with Harvard’s economics department, who became prominent members of the Structuralist School. Mason and Bain developed a paradigm for industrial competition directly linking an industry’s structure to its performance, that is, to its degree of competitiveness. Their analytical tool became known as the “structure-conduct-performance,” or S-C-P paradigm, according to which structure determines conduct, which in turn, entails performance.

In the US, Structuralist ideas and the S-C-P paradigm were highly influential from the 1940s through to the 1960s, dominating the scholarly debates and the enforcement of antitrust law. They also had a profound impact on the decisions of the Supreme Court during that period, which put an emphasis on preserving competition by preventing excessive market concentration.38 The implication of the S-C-P paradigm was that, through an understanding of market structure, it would be possible to predict industry performance.39 Underlying this idea was the belief that industrial concentration in the US was too high, and that firms were larger than necessary for them to be efficient.40

As observed by Hovenkamp, “the dominant theme of the S-C-P paradigm was that antitrust law should reduce the amount of monopoly in the economy”.41 As such, the Structuralist scholarship supported the more active role of antitrust enforcers in regulating the concentrated structure of markets that characterised competition policy in the period. Again, underpinning these ideas was the notion that law, and legal institutions play a constitutive role in the economy, or as stated by Harris and Varellas, that “markets and their constituents (…) are creatures of law and politics, crafted by the state.”42

C. The Chicago School

Antitrust scholarship and policy during the second half of the 20th century, saw a dramatic shift in the theoretical underpinnings that guided enforcement. In the US, beginning in the 1950s, scholars associated with the University of Chicago promoted a two-pronged attack on the set of claims that underpinned Harvard’s Structuralist School and ultimately revolutionised antitrust scholarship and enforcement in the 1970s and 1980s. From a descriptive perspective, they challenged previous assumptions about the complexity and the robustness of markets, and disputed the positive relationship between concentration and profits.43 While Structuralism supported the claim that monopolies negatively affect performance and should therefore be eliminated, one of the central tenets of the Chicago School was that market power was not inherently bad, and could often result from enhanced efficiency rather than lack of competition.44 From a normative and methodological perspective, the Chicago School aimed at distinguishing their work from the antitrust scholarship and practice developed in the previous decades which, they argued, was incoherent and lacked legal certainty.45 Instead, Chicago scholars relied on a series of economic models, and in particular, on neoclassical price theory, to understand what incentives drove economic agents and to study legal rules. As a result, Chicago School supporters played a key role in making law and economics the centrepiece of antitrust scholarship and enforcement.46

In the US, the ideas championed by the Chicago School contributed to the erosion of the consensus which had supported previously established antitrust doctrines and combined with a more conservative judiciary and political landscape, led to a gradual change in antitrust enforcement. Under the auspices of the Chicago School, an understanding of the goals of competition law evolved, putting economic efficiency at the fore of both scholarship and practice. Hence, a core tenant in antitrust law commonly attributed to the Chicago School is the idea that the goal of antitrust is to maximize consumer welfare.47 This idea was more fully developed in his book The Antitrust Paradox, where Bork argued that “the only legitimate goal of antitrust is the maximization of consumer welfare”.48 Based on the metrics of economic efficiency, this interpretation provided the basis for Chicago scholars to argue that antitrust authorities should only intervene if they could demonstrate a business arrangement would reduce ‘consumer welfare’, for example through an increase in prices.

Perhaps more relevant than the diffusion of specific descriptive claims and normative assumptions, was the dissemination of the methodology embraced by Chicago scholars. Indeed, their influence can be more broadly understood as a general contribution to reorienting legal scholarship and policy towards technical economic analysis and technocratic reasoning. Thus, the most enduring contribution of the Chicago School was arguably a methodological shift in academic production and policymaking towards the more widespread use of economic models to conduct legal analysis. This trend was observed not only in antitrust law, but in other areas of law more closely identified as being ‘about the economy’, such as intellectual property, contracts, and corporate law.49 Critical legal scholars argue these fields were effectively colonised by economic models and economic methods, to the point that legal analysis was largely recentred around the concept of ‘economic efficiency’.50

Although some scholars consider that antitrust literature and practice is currently experiencing a ‘post-Chicago’ moment, as the limitations of some of the tenets defended by the Chicago School are now better understood, the adoption of an economic methodology and of a cost-benefit analysis continues to be widely defended in the application of competition law. Although there has been a move away from excessive emphasis on economic efficiency, there continues to be strong resistance to the inclusion of objectives beyond promoting ‘consumer welfare’ in the goals of competition law.51 Significantly, there is substantial support among antitrust scholars for maintaining the consumer welfare standard, arguing that it provides a practical and useful framework for antitrust enforcers and regulators to assess anticompetitive behaviour and potential harms arising from mergers and acquisitions.52

Brazilian Competition Law AS a Tool of Economic Policy

In parallel to the development of the normative assumptions that shaped antitrust law and enforcement, the mid-twentieth century witnessed the emergence of additional regulatory tools that provided supplementary means to govern markets and the economy. Indeed, Chang describes the period post-Second World War as the ‘age of regulation’, a period in economic history characterised by a stark increase “in the range and the depth of regulatory activities”.53 Notably, this expansion of the regulatory toolkit coincided with a shift in understanding the aims of state regulation, and by the development of new theories and scholarship that provided justifications for State supervision.

Regulation was embraced in many regions as a mechanism to rein capitalist institutions in response to the crisis in the interwar period, which was largely attributed to laissez-faire economic policies.54 In developing countries, the desire to achieve economic and political independence also put developmental aims at the centre of regulatory frameworks. Measures such as import regulation and foreign direct investment were adopted to protect and strengthen domestic industries, while industrial licensing and other forms of market entry regulation were adopted to induce domestic investments in manufacturing.55 Specifically, in Brazil, economic law and legal tools were actively embraced during the mid-twentieth century to advance public policy goals, particularly those related to industrialisation, growth, and development.

This section discusses how Brazilian governments developed new policy tools and reframed existing ones in response to economic demands, and the specific contexts in which competition laws were adopted and amended in Brazil.

A. Competition Law in the Developmental State

During the developmental State of the Vargas period,56 the Brazilian State made use of a plethora of regulatory tools to pursue political goals, including tariff protectionism, price control, the creation of monopolistic state-owned companies and sectorial regulatory councils, the use of financial incentives, credit lines, and public subsidies.57 Concurrently, economic law played a pivotal role in creating and institutionalising the techno-bureaucratic apparatus that would support import substitution policies.58 As described by Aguillar and Coutinho, several Brazilian agencies, councils, state owned enterprises, sector regulators, and other institutions were established during the post-war period.59

The Brazilian Constitutions adopted during the Vargas Era (1934 and 1937) introduced provisions aimed at safeguarding competition (initially referred to as the “protection of the popular economy”) with the goal of repressing “abuses resulting from the exercise of economic power.”60 These expressions were subsequently incorporated into legislation enacted during that period, including Decree-Law 869/1938, Decree-Law 7666/1945, and Law 1521/1951. Decree-Law 869/1938 defined crimes against the popular economy, such as selling goods below cost to prevent competition, and participating in consortium, agreement, adjustment, alliance, or capital merger, to prevent competition. It was adopted in the context of the developmentalist-nationalist project with the aim of protecting the market and Brazilian capital against cartels and abuse of international economic power.61 Although this is often considered Brazil’s first antitrust legislation, this decree addressed not only anticompetitive practices but also non-antitrust offenses such as fraudulent management and fraud related to weights and measures. There is limited evidence of consistent enforcement of its antitrust provisions, but it is noteworthy that these provisions were quoted in a legal opinion expressed by the Consultant-General of the Brazilian Republic, following a consultation from the Standard Oil Company of Brazil, which was part of the international group hit by antitrust action in the US.62

Decree-Law 7666/1945, formulated by the then Minister of Justice and Interior Affairs, Agamemnon Magalhães, was the first antitrust legislation that had an administrative nature, and established antitrust offences that were “contrary to the moral and economic order.”63 This legislation created the Administrative Commission for Economic Defense (Comissão Administrativa de Defesa Econômica), a body directly subordinate to the President of the Republic and chaired by the Minister of Justice and Interior Affairs, responsible for reviewing and approving concentrations in certain sectors of the economy (including banking, mining, transport, clothing, among others).64 The trust-buster movement of the early 20th century in the US had a clear influence on the law’s design. The explanatory memorandum of the bill which gave rise to the decree, explicitly mentioned concerns with the emergence of trusts, which legislators considered were “disorganising small industry, putting the middle classes and the working classes in the shadow of economic poverty. It also referred to the Sherman Act, which was framed as a legislation aimed at “combating these institutions of economic oppression.”65

Decree-Law 7666/1945 faced significant opposition, with criticism coming from political actors such as the opposition party União Democrática Nacional (UDN), major corporations, industry and agriculture federations, and even the United States, due to its nationalist character.66 As a result, the decree had a short lifespan and was revoked just over four months later by Decree-Law No. 8167 on November 9th, 1945. However, despite its brief existence, Decree-Law 7666/1945 left a lasting impact on competition policy in Brazil, bringing about substantial legal and institutional advancements. The resistance it encountered sparked public debate on topics like trust, cartel, and antitrust. Moreover, the legislation’s focus on addressing antitrust issues through a specific law and the establishment of a specialised administrative authority to enforce it continue to shape the institutional framework of Brazilian competition law.67

After the overthrow of Estado Novo, Agamemnon Magalhães was elected as a constituent deputy in the Constituent Assembly of 1946. He played a crucial role in introducing Article 148 into the constitutional text, which established that “law will suppress any and all forms of abuse of economic power (…) whatever their nature, that aim to dominate national markets, to eliminate competition, and to arbitrarily increase profits.”68 This constitutional provision endorsed the need for specific antitrust legislation to address economic power abuse, highlighting the influence of Decree 7666/1945 and its author in shaping the foundations of Brazilian competition law institutions, as further discussed in the next section.

B. The Foundations of Modern Brazilian Competition Law

Brazil implemented a new antitrust law in 1962. This legislation resulted from a bill introduced in 1948 by Agamemnon Magalhães with the objective of regulating Article 148 of the 1946 Constitution. The bill underwent a protracted legislative process, significant amendments, and eventually was enacted as Law No. 4137 on September 10th, 1962, leading to the establishment of the Administrative Council for Economic Defence (CADE). Law 4137/1962 was also enacted within the framework of the Brazilian developmental State and the legislators’ understanding of the role of the State was explicitly stated in the explanatory memorandum, which emphasised that: “if the Brazilian state is to be a State that commands, that directs, it must rein any economic power.”69 The law also included another reference to US antitrust law and emphasised the importance of protecting consumers, stating that the law “will be the new freedom – freedom of the Brazilian consumer and freedom of the Government, because it will not be subject to the influences of economic groups.”70 The law not only established forms of abuse of economic power, but also rules aimed at controlling the structure of markets, establishing a pre-merger review for some types of deals between firms (article 74). It also formally created CADE, with powers to contain abuse of economic power.

Despite the more detailed provisions and the existence of an enforcement body, the law was not consistently implemented. This was partially due to the lack of efficient procedural rules, resulting in protracted proceedings, but also because of the wider political and economic context. The economic policy adopted during the military dictatorship, which spanned from 1964 to 1985, heavily relied on import substitution, price control mechanisms, and the protection of the national industry, which limited CADE’s activities and hampered the development of an effective competition policy.71 The decade of 1980s saw a significant decline in the State’s investment capacity in Brazil. The period was characterised by a crisis of the developmental State, combined with economic stagnation and high inflation. In response, the Brazilian government made intensive use of new tools such as price fixing and the fixing of public service tariffs in attempts to control the inflation rate.

Adopted in this context, the 1988 Constitution formalised the role of the State as a normative agent and regulator of economic activity, and established the terms that would govern the relationship between the State and the market.72 On the one hand, it limited the situations in which the State could act as a direct player in the market, that is, the cases in which the State would be allowed to act as an entrepreneur. Public monopolies, for example, were strictly limited to exceptional circumstances and to certain sectors of the economy considered strategic. On the other hand, the Constitution laid down rules and principles to supervise economic activity in Brazil. Article 170 of the Constitution outlined the guiding principles of the country’s economic order, which include free competition and free enterprise, consumer protection, the reduction of social and economic inequality, and favourable treatment of small business. Furthermore, the Constitution granted the State the authority to enact laws to repress the “abuse of economic power aimed at the domination of markets, the elimination of competition, and the arbitrary increase of profits” (article 173, paragraph 4).73 This particular provision is regarded as the constitutional basis for modern Brazilian competition law.

The subsequent development of competition policy in Brazil was closely intertwined with the economic liberalisation agenda pursued by the government in the 1990s in the wake of debt crisis of the previous decades.74 While laws and decrees aimed at the “protection of the popular economy” and at “[supressing] abuse of economic power” had already been adopted during the Vargas Era and the military dictatorship, they had not been comprehensively applied. Until then, the State had favoured alternative regulatory tools, such as price control mechanisms, in its attempt to rule over markets.75 Following the approval of the 1988 Constitution, and throughout the 1990s, a neoliberal agenda was adopted to ensure fiscal balance, predictability, and economic efficiency.76 Brazil joined other Latin American governments in crafting new legal instruments to restructure the relationship between the State and the market in response to international pressures, including tools for promoting competition and attracting private investment.77 As noted by Gustavo Onto, in Brazil “the government narrative in the 1990s explains changes in the perception of regulators as to how to best govern the economy, resulting in a new conception of the economic reality and of the role of the State.”78 Thus, in 1994, with the implementation of the Real Plan, Brazil effectively implemented a comprehensive competition law and established institutions for the enforcement of competition policy through the enactment of Law 8884/1994.

The implementation of Law 8884/1994 marked a significant milestone in the consolidation of competition policy in Brazil. It introduced a fully-fledged legal framework of an administrative nature, disciplining both anticompetitive practices and concentrations between two or more undertakings. Despite the institutional and structural limitations, the new legal framework contributed to the establishment of a (until then very incipient) culture of competition, with important cases being decided by the Brazilian System for Competition Defence (Sistema Brasileiro de Defesa da Concorrência – SBDC) during the period the law was in force (from 1994 to 2012).79 The competition authority which had been formally created in 1962, CADE, was finally given powers to review mergers and cases of unilateral or coordinated behaviour, and the wider system of the SBDC, which included the Secretariat of Economic Law (Secretaria de Direito Econômico – SDE) and the Secretariat of Economic Monitoring (Secretaria de Acompanhamento Econômico – SEAE), was created to enforce the newly created law.

As the volume of transactions and investigations carried out by CADE grew, significant limitations and shortcomings of the law became more apparent.80 Gradual reforms were introduced to address specific problems that were identified along the way, but over time they proved insufficient to resolve wider systemic issues.81 The legislation attracted criticism from the legal and business communities for being inefficient and unable to keep pace with the new dynamics of Brazilian capitalism. Stakeholders advocated for more substantive changes to align its provisions with international ‘best practices.’ The primary areas of concern included the lengthy procedures, the existence of multiple bodies with overlapping competencies, and the practice of conducting merger reviews after transaction completion (ex post merger review).82 Amongst politicians and the government, a consensus began to emerge that the SBDC required reforms to better integrate Brazil into the global economy of the early 21st century. Indeed, reforming the system was included as one of the objectives of the Growth Acceleration Program (Programa de Aceleração do Crescimento – PAC), an economic stimulus package introduced by the federal government in 2007. The expectation was that reforming the competition law framework would contribute to the creation of an institutional environment more conducive to the “free functioning of markets and private investment.”83

A bill was proposed and after a long period of consideration by the Brazilian National Congress, a new law was finally enacted in 2011 to address problems that had been identified over the years and to streamline the SBDC. Law 12529/2011, which came into force in 2012, introduced significant institutional, procedural, and substantive reforms in the Brazilian system of competition defence. With the new law, Brazil adopted a model of enforcement that granted CADE independent powers of investigation and the jurisdictional authority to judge and punish violations of the economic order.84 Notably, the new law changed the institutional design of CADE to allow it to perform both investigative and adjudicative functions, with an internal functional division.85

Under the new law a revamped structure was established, comprising the Tribunal, a General Superintendence (SG) and a Department of Economic Studies (DEE). The Tribunal was created as a composite decision-making body, gathering CADE’s six Commissioners and its President. The SG combined the main functions previously performed by SDE and SEAE, giving it more faculties to carry out preparatory procedures and to conduct administrative inquiries, to initiate or terminate administrative proceedings investigating anticompetitive practices, and reviewing concentrations. The DEE replaced the technical role formerly fulfilled by the SEAE (which now focuses on competition advocacy), and is responsible for preparing economic studies and opinions that inform proceedings.86 Additionally, the new CADE incorporated two independent offices that can be called upon to provide opinions before the Tribunal in specific cases: The Attorney General’s Office (Procuradoria Federal Especializada), which also represents CADE in court, and the Federal Public Prosecutor’s Office (Ministério Público Federal), which is also responsible for criminal prosecutions.

Figure 1. CADE’s structure under the Law 12529/2011

Source: Author, based on information publicly available on CADE’s website

The historical overview provided in this section reveals that since the 1930s, Brazil adopted multiple pieces of legislation aimed at regulating competition. It also demonstrates significant variation in the nature of legal instruments adopted and the level of enforcement, with changes being introduced in close connection to the political economy of each specific historical period. The enactment of Law 8884/1994 marked a turning point, when a more coherent competition policy was implemented in Brazil. This occurred as part of a political project for the liberalisation of the economy and to achieve monetary stabilisation in the 1990s, which was influenced by the international interests that shaped Latin America’s politics during that time. The reforms introduced with Law 12529/2011 aimed at further supporting the globalisation of the Brazilian economy and streamlining procedures to enhance predictability for businesses. These reforms also sought to incorporate a particular view of the role of the State in the economy into the Brazilian competition framework – a political agenda presented as international ‘best practice.’ As the following section will illustrate, this perspective also influenced the implementation of the law. While lawyers and practitioners did not fully and intentionally embraced law and economics theory in interpreting and enforcing competition law, it can be argued that Brazilian scholarship and practice have assimilated a version of antitrust that incorporates key methodological issues associated with law and economics, including the focus on economic analysis and the application of economic theory to decision-making.

The Hybrid Nature of Brazilian Competition Law

The legal basis of competition law and policy can be found in the chapter of the 1988 Constitution that sets the rules governing the economic order in Brazil. This Constitution was the centrepiece of the democratisation efforts carried out following the end of the military dictatorship, and enshrined a comprehensive political pact, accommodating a wide range of social demands. According to Virgílio Afonso da Silva, the 1988 Constitution was intended to be a transformative Constitution, in other words “a constitution that aims at changing the status quo by establishing goals to be pursued and defining the standards of public policies in different areas.”87 As such, the general principles of economic activity – principles that the economic order should respect and promote – should be interpreted as part of the wider constitutional project that formally recognised a range of social and economic rights, developmental objectives, and principles of distributive justice. Fabio Konder Comparato argues that all principles governing the economic order (as laid out in article 170) are to be understood and harmonised in view of the greater objective established in the caput: achieving social justice.88

Despite its constitutional roots, competition law gradually shifted away from promoting socioeconomic rights. Over time, decision-making processes and the application of the law became detached from substantive arguments of a constitutional nature and shifted towards the pursuit of economic efficiency – a trend referred to as “methodological desconstitutionalisation” by Schuartz.89 This reveals a significant division between the social and economic realms of legal scholarship and practice, which the law and political economy framework seeks to unveil.90 Although the current law, as did the previous legislation, explicitly mentions that the enforcement should be guided by constitutional provisions,91 the implementation of competition policy arguably did not incorporate these constitutional goals. Instead, it was primarily driven by the desire to open up and integrate the Brazilian economy into the global economy, guided by principles of economic efficiency and market liberalisation.92 In essence, competition policy in Brazil evolved as part of a broader neoliberal agenda which dominated the political economy of the late 20th century in Western nations.93 This process was deeply influenced by the epistemological assumptions of the Chicago School and the law and economics methodology that had shaped antitrust law in the US and in other parts of the world in previous years – an approach that prioritises allocative efficiency and total welfare measures while neglecting the distributional aspects.94

To illustrate how this decoupling of Brazilian competition law from its constitutional roots has been expressed in the interpretation and application of the law, the next subsections present a brief introduction to the institutional design and the enforcement of merger review. This overview includes a discussion of the relevant rules and procedures in Brazil, how they were first introduced into the legal regime, and the evolution of the legislation over time. The analysis focuses on the substantive aspects of merger review including the criteria for assessing the potential impacts of the merger, mostly rooted in an economic analysis of efficiencies.95 It shows how CADE’s decisional practice still represents the strong influence of the Chicago School and the economic analysis of Brazilian antitrust law enforcement and reinforces the ‘desconstitutionalisation’ of competition law. The current merger guidelines still adopt a cost-benefit analysis by emphasising the need to weigh the efficiencies resulting from the transaction against its harms and does not require the effects of the merger to be measured against constitutional principles governing the economic order.

A. The shift to an ex ante approach

One of the key innovations implemented by Law 12529/2011 was the introduction of pre-merger control procedures.96 In Brazil, under the previous legislation (Law 8884/1994) the review of concentrations took place ex post, that is, CADE would analyse relevant concentrations after the transaction was completed.97 This post-merger review was considered highly inefficient and was the object of criticism of antitrust experts. From the perspective of the authority, a major shortcoming of the previous regime was the so-called ‘scrambled eggs’ effect, where separating the whites from the yolks is significantly harder once the eggs are cooked. Mergers could take years to analyse and, by the time the authority finally reached a conclusion, the effects of the transaction would already be consolidated and hard to reverse.98 From the perspective of businesses, the long period that it took for CADE to review the cases and the possibility of overturning the transaction created legal uncertainty.99

With the adoption of Law 12529/2011, a more modern ex ante procedure was adopted. The change in the moment of the merger review was largely welcomed by business and legal communities, labelled as a move that would increase legal certainty and consistent with international practice. Indeed, the change in the notification regime was part of the recommendations put forward by the OECD to reform Brazilian legislation during the peer reviews conducted in both 2005 and 2010.100

B. The substantive enforcement of control of concentrations in Brazil

The main substantial prohibition in the law is concerned with transactions which could exclude existing competitors in a substantial part of the relevant market, create or reinforce a dominant position, or lead to the dominance of a relevant market (article 88, para. 5). Brazilian competition law adopts an effects-based approach; the analysis focuses on the likely future effects of the merger. This requires the competition authority to assess the effects of an anticipated merger on the market before deciding whether companies should be allowed to move forward with a transaction that meets the notification criteria. The decision is premised on the actual or likely detrimental effects that a given merger will have on competition in the relevant market.

The methods and steps of analysis that the Brazilian competition analysis follows to conduct such analysis are not defined by hard law but have rather evolved through practice. As many other jurisdictions, Brazil has created merger guidelines that specify the application of the law, clarifying how legal and economic concepts should apply to merger cases. The language in the legal provisions that support merger review alludes to notions that go beyond economic efficiency, such as proscribing mergers that lead to the exclusion of competitors, and to concerns related to imbalance of power and creation of market power, but the guidelines that CADE has developed and applied reflect more formalist perspectives and are largely centred around economic tests. Drawing on microeconomic models and animated by the “economic style of reasoning,” CADE usually follows five steps of analysis when reviewing mergers: i) defining the relevant market, ii) analysing the level of concentration, iii) verifying the probability of the exercise of market power through the verification of conditions of entry and rivalry, iv) in cases involving input markets, evaluating the buyer power existing or created as a result of the transaction, v) examining efficiencies, including the evaluation of its net effects on the market.101

First, to identify the relevant market, the guidelines suggest that the analysis should consider the set of economic agents (including both customers and producers) that would affect and constrain decisions made by the merged firm, including aspects such as price, quality and quantity of the products or services offered. Similar to the US guidelines, CADE’s guidelines mention economic tests that can be carried out to support the definition of the relevant market, such as using the ‘small but significant and non-transitory increase in price’ (SSNIP) metric to assess supply-side substitutability (that is, whether there are other players able and willing to provide the products or services in the same geographic region after a small but significant and non-transitory increase in price), and to conduct a hypothetical monopolist test.

Regarding the level of market concentration, the guidelines recommend analysing the market shares in the relevant market. While this tends to be a static measure, the guidelines recommend taking into consideration the level of development of the market and whether it has been stable. Again, similar to US guidelines, CADE’s guide also suggests adopting the Herfindahl-Hirschman Index (HHI) and establishing clear quantitative thresholds to assess the level of concentration of the markets, based on changes in market shares.102 The Brazilian guidelines mention that the HHI should be considered as an ‘initial assumption’, which should be admitted cautiously in particular cases, such as when one of the parties is a maverick firm. However, there is no clear reference as to how this metric links to theories of harm, nor a critical discussion of the tool’s limitations in assessing competitive dynamics, imbalances of power, or matters related to economic justice. The limitations of these economic tests in evaluating competitive dynamics are especially apparent in cases involving multi-sided markets, such as digital platforms. In digital markets, there are examples of cases where CADE’s assessment of mergers based on these economic tests overlooked important factors, such as the interdependencies between the platform and the ecosystem of players depending on it.103

The third and fourth steps of the analysis outlined in CADE’s guidelines aim at a specific understanding of the dynamics at play in the market under review. This includes assessing whether the merged entity would be able to unilaterally exercise market power, whether the merger would increase the purchasing power of firms in the market, and whether it would reduce rivalry between firms and increase the likelihood of explicit or tacit coordination. Also in these steps, the guidelines recommend the adoption of statistical models and quantitative thresholds to estimate the potential effects of the proposed merger. For example, to identify barriers to entry the guidelines suggest assessing the effectiveness of past entrances, and the likelihood, timeliness, and sufficiency of new players entering and competing in the market and propose adopting economic metrics such as the Likelihood of Entry Analysis (LEA). The wide range of variables to be considered in the analysis aims at providing an impression of objectiveness to what, in practice, is a complex analysis surrounded by a high level of uncertainty.

Finally, in assessing the competitive effects of the merger, Brazilian competition law recognises efficiency defences, whereby an otherwise anticompetitive merger can be approved if it is expected to generate one or more of the following efficiencies: i) an increase in productivity or competitiveness, ii) an improvement in the quality of goods or services, iii) promote efficiency and economic or technological development.104 The analysis of efficiencies, as described by the scholarship and practice, must assess the economic and structural effects of the anticipated merger to determine if it hinders the ability of actual and potential competitors to compete effectively in the market. Mergers are permitted where the authority believes they will not create barriers to effective competition in Brazil, or when they create efficiencies that outweigh their potential anticompetitive effects.

This efficiency-driven perspective, although some argue that it offers a measurable and objective framework, fails to include considerations of a different nature. Transactions will often produce both positive and negative competitive effects. According to the law, when the positive effects outweigh the negative ones, the merger should not be prohibited (article 88, para 6). However, in practice, balancing the pro-competitive and anticompetitive effects is often a complex task that goes beyond an economic-driven cost-benefit analysis. For example, the definition of who needs to benefit from such efficiencies is unclear. There are often multiple interests at stake and the analysis of whom would benefit or loose from a transaction cannot be captured in a binary assessment. Significantly, while the law explicitly requires that a relevant part of the resulting benefits should be passed on to consumers, the guidelines are vague in defining the assessment criteria. The guidelines suggest that the evaluation should consider “the net non-negative effect on the economic welfare of consumers”, a language strongly associated with an economic efficiency-oriented analysis.105 While economic theory and evidence can provide valuable insights for antitrust analysis, the predominant emphasis on efficiency-driven arguments and metrics in decision-making overlooks distributive concerns. This approach disregards issues of equality and justice, which are integral to the constitutional text, and delegates distributional questions to other areas of law and policy beyond the purview of competition law.106

Overall, CADE’s official merger guidance demonstrates that, despite the constitutional foundations of competition law in Brazil, the analysis conducted by CADE prioritises economic tests. This focus on economic factors has limited the scope for considering more holistic aspects of market structure and the underlying power dynamics at play, which could arguably be supported by constitutional provisions. However, it is important to acknowledge that there are concerns raised regarding the introduction of non-economic elements in antitrust analysis and the potential risks associated with incorporating such arguments. For instance, apprehensions exist regarding the uncertainty in the actions of the antitrust authority and the potential legal insecurity faced by businesses. Critics argue that decisions based on non-economic criteria may be less predictable and could give rise to concerns such as corruption or capture.107 Indeed, adopting a more holistic approach would undoubtedly introduce complexity to antitrust analysis. It would necessitate the interpretation of the law and engagement with arguments of a legal nature, specifically pertaining to the implications of different scenarios on individuals’ rights, rather than solely focusing on economic implications. However, competition law enforcers have the capability to tackle this challenge. Rights-based considerations align with the nature of arguments that decision-making bodies responsible for enforcing legislation encounter in other areas of law. This approach would bring commissioners at the competition authority closer to the role of judges in court. Arguably, their level of expertise, institutional design, and granted independence position them well for such a role, provided that this expansion in faculties is accompanied by effective measures of accountability.

Furthermore, it is crucial to recognise that economic arguments are not neutral or detached from political considerations. Efficiency is not a neutral or purely technical goal; it is pursued and interpreted in view of political choices and in alignment with a political agenda, as discussed in the previous sections. Economic evidence, too, is subject to interpretation and discussion. Therefore, similarly as to how the Brazilian authority has developed the capacity to assess and evaluate economic arguments, considering that not all economics is sound economics, competition law enforcement can be strengthened by directly and transparently engaging with other considerations that may be relevant in antitrust analysis but often remain unseen or poorly articulated in decision-making. This would be done alongside arguments of an economic nature. As Monti puts it, “what threatens to make competition law unworkable is not the pursuit of a wide range of public policy objectives, but the fact that market participants are unaware of the policies being pursued. The primary concern should not be the presence of policy considerations, but the lack of transparency in the decision-making process”.108

Conclusion

The influence of the Chicago School gradually declined around the 1990s and 2000s. Around that time, scholars started to work on alternative theoretical references in an attempt to circumvent what were considered flaws in the basic doctrines of the Chicago School, including some of the rationales for market exclusion. In most parts of the world, the modern enforcement of competition law has been redirected towards a more diffuse set of theories and shaped by multiple schools of thought.109 Indeed, in the US, many use the term ‘post-Chicago’ to label the set of economic principles that currently guide mainstream antitrust thinking.110 Nonetheless, the influence that the Chicago School had and still has on competition law and practice in many jurisdictions – including in Brazil – is rarely contested. One of its main contributions has been to redirect competition law towards aspects surrounding economic efficiency, manifested through the consumer welfare standard. As a result, over the last few decades, questions of distribution, power, and democracy, were largely excluded from the study of competition law.

This paper shows how, inspired by the tenets of the Chicago School and as part of a liberalisation project driven largely by foreign interests, Brazilian competition law has gradually shifted away from its constitutional roots. The adoption of economic tests and methodologies, under the guise of neutrality, has obscured and advanced a specific set of political projects: one that often reproduces privilege, enhance concentration of power, and exacerbate inequality.111 This trend of separating competition law and enforcement from broader socio-political considerations is not unique to Brazil, but has also been observed in other jurisdictions, particularly in other Latin American countries. For example, Colombia’s Constitution acknowledges socio-economic rights, on the one hand, while supporting a neoliberal economic model, on the other.112

Overall, the observed trends discussed in this paper show the historical roots of competition law and its development, which were driven by political and economic forces. In recent decades, under the auspices of the methodology defended by the Chicago School, the pursuit of economic efficiency has narrowed the scope of competition law and hindered its effectiveness in countering rising market concentration. As expressed by Wilks, “[a] great expansion in policy powers and enforcement is accompanied by a great increase in the global power of large corporations. Competition policy has developed, and been enforced, in ways that benefit and support large global corporations.”113

To counter this trend and make competition law fit to address the multiple crises of our time, legal scholarship and practice should embrace political economy considerations – shifting from the analysis of economic efficiency to an analysis of economic power.114 In Brazil, this shift would entail questioning how to better align the tools and procedures of competition law with the goals set in the 1988 Constitution. In practical terms, it requires considering how to reform competition law and enforcement to give life to democratic principles embodied in the constitutional text, such as social justice and equality.

BIBLIOGRAPHY

1. Aguillar, Fernando H. A., and Diogo R. Coutinho. ‘A Evolução Da Legislação Antitruste No Brasil’. Revista de Concorrência e Regulação 2, no. 7–8 (2011): 139–59.
2. Azevedo, Paulo Furquim de. ‘Análise Econômica Da Defesa Da Concorrência’. In Direito e Economia No Brasil: Estudos Sobre a Análise Econômica Do Direito, edited by Luciano Benetti Timm. Indaiatuba: Editora Foco, 2019.
3. Beltrán, Laura. ‘How the Consumer Welfare Standard Propagates Gender and Racial Inequalities’. Promarket (blog), 9 January 2023. https://www.promarket.org/2023/01/09/how-the-consumer-welfare-standard-propagates-gender-and-racial-inequalities/.
4. Berman, Elizabeth Popp. Thinking like an Economist: How Efficiency Replaced Equality in U.S. Public Policy. Princeton: Princeton University Press, 2022.
5. Bonefeld, Werner. ‘Freedom and the Strong State: On German Ordoliberalism’. New Political Economy 17, no. 5 (November 2012): 633–56. https://doi.org/10.1080/13563467.2012.656082.
6. Bork, Robert H. ‘Legislative Intent and the Policy of the Sherman Act’. The Journal of Law & Economics 9 (1966): 7–48.
7. —. The Antitrust Paradox: A Policy at War with Itself. New York: Basic Books, 1978.
8. Botta, Marco. ‘The Definition of the Relevant Market and the Degree of Market Concentration in the Emerging Economies: Case Study on Brazil and Argentina’. World Competition 33, no. Issue 4 (2010): 663–82. https://doi.org/10.54648/WOCO2010053.
9. Bradford, Anu, Adam S Chilton, and Filippo Maria Lancieri. ‘The Chicago School’s Limited Influence on International Antitrust’. The University of Chicago Law Review 87, no. 2 (2020): 297–329.
10. Brandeis, Louis D. The Words of Justice Brandeis. Edited by Solomon Goldman, with a Foreword by William O. Douglas. New York: H. Schuman, 1953.
11. Bresser-Pereira, Luiz Carlos. ‘Models of the Developmental State’. CEPAL Review, no. 128 (2019): 35–47.
12. Britton-Purdy, Jedediah, David Singh Grewal, Amy Kapczynski, and K. Sabeel Rahman. ‘Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis’. Yale Law Journal 129, no. 6 (2020): 1784–1835.
13. Buck, Solon J. The Granger Movement: A Study of Agricultural Organization and Its Political, Economic and Social Manifestations, 1870-1880. Cambridge, MA: Harvard University Press, 1913.
14. Cabral, Mário André Machado. ‘Silêncio Na Historiografia Econômica Brasileira: A Legislação Concorrencial Como Inovação Institucional (1937-1945)’. Seqüência Estudos Jurídicos e Políticos 42, no. 88 (2021): 1–32. https://doi.org/10.5007/2177-7055.2021.e78946.
15. CADE. Defesa Da Concorrência No Brasil: 50 Anos. Brasília: Conselho Administrativo de Defesa Econômica, 2013.
16. —. ‘Guide for Horizontal Merger Review’. Guidelines. Brasília: Conselho Administrativo de Defesa Econômica, 2016. https://cdn.cade.gov.br/Portal/centrais-de-conteudo/publicacoes/guias-do-cade/GUIDE%20FOR%20HORIZONTAL%20MERGER%20REVIEW.pdf.
17. Camarotto, Murillo. ‘Cade Vai Optar Pela Ortodoxia Em Decisões’. Valor Econômico, 15 July 2021. https://valor.globo.com/empresas/noticia/2021/07/15/cade-vai-optar-pela-ortodoxia-em-decisoes.ghtml.
18. Camic, Charles, and Geoffrey Martin Hodgson, eds. ‘General Introduction’. In The Essential Writings of Thorstein Veblen, 1–39. Milton Park, Abingdon, Oxon ; New York, NY: Routledge, 2011.
19. Capers, Bennett, and Gregory Day. ‘Race and the Consumer Welfare Standard’. Promarket (blog), April 13th, 2023. https://www.promarket.org/2023/04/13/race-and-the-consumer-welfare-standard/.
20. Cashman, Sean Dennis. America in the Gilded Age: Third Edition. NYU Press, 1993.
21. Chamberlin, Edward Hastings. The Theory of Monopolistic Competition: A Re-Orientation of the Theory of Value. 8. ed. Harvard Economics Studies 38. Cambridge, Mass: Harvard University Press, 1969.
22. Chang, Ha-Joon. ‘The Economics and Politics of Regulation’. Cambridge Journal of Economics 21, no. 6 (1997): 703–28.
23. Comparato, Fabio Konder. ‘Regime Constitucional Do Controle de Preços No Mercado’. Revista de Direito Público 24, no. 97 (1991): 17–28.
24. Crane, Daniel A. ‘A Neo-Chicago Perspective on Antitrust Institutions’. Antitrust Law Journal 78, no. 1 (2012): 43–65.
25. Cullis, Philip. ‘The Limits of Progressivism: Louis Brandeis, Democracy and the Corporation’. Journal of American Studies 30, no. 3 (1996): 381–404.
26. European Commission. ‘A Competition Policy Fit for New Challenges’. October 29th, 2021. https://ec.europa.eu/commission/commissioners/2019-2024/vestager/announcements/speech-evp-margrethe-vestager-2021-competition-law-conference-organised-association-finnish-lawyers_en.
27. Fox, Eleanor M. ‘Economic Development, Poverty and Antitrust: The Other Path’. Southwestern Journal of Law and Trade in the Americas 13, no. 2 (2007): 211–36.
28. Frazão, Ana. ‘A Necessária Constitucionalização Do Direito Da Concorrência’. In Direitos Fundamentais e Jurisdição Constitucional, 139–58. São Paulo: Editora Revista dos Tribunais, 2014.
29. —. Direito Da Concorrência: Pressupostos e Perspectivas. São Paulo: Saraiva, 2017.
30. Freyer, Tony. Regulating Big Business: Antitrust in Great Britain and America, 1880–1990. Cambridge, UK: Cambridge University Press, 1992. https://doi.org/10.1017/CBO9780511582387.
31. Grewal, David Singh, and Jedediah Purdy. ‘Law and Neoliberalism’. Law and Contemporary Problems 77, no. 4 (2014): 23.
32. Gutiérrez, Juan David, and Andrés Felipe Suárez. ‘Using Competition Law to Link Regulation and Development’. Law and Development Review 16, no. 1 (2023). https://doi.org/10.1515/ldr-2022-0045.
33. Harris, Angela, and James J. Varellas. ‘Law and Political Economy in a Time of Accelerating Crises’. Journal of Law and Political Economy 1, no. 1 (2020). https://doi.org/10.5070/LP61150254.
34. Hofstadter, Richard. The Age of Reform: From Bryan to F. D. R. New York: Alfred A. Knop, 1956.
35. —. ‘What Happened to the Antitrust Movement’. In The Political Economy of the Sherman Act: The First One Hundred Years, by E. Thomas Sullivan, 20–31. Oxford: Oxford University Press, 1991.
36. Hovenkamp, Herbert. ‘Is Antitrust’s Consumer Welfare Principle Imperiled?’ The Journal of Corporation Law 45, no. 1 (2019): 65–94.
37. —. ‘Structuralism in Competition Policy’. In The Opening of American Law: Neoclassical Legal Thought, 1870-1970. Oxford: Oxford University Press, 2014. https://doi.org/10.1093/acprof:oso/9780199331307.001.0001.
38. —. The Antitrust Enterprise: Principle and Execution. Cambridge, MA: Harvard Univ. Press, 2008.
39. IMF. ‘Chapter 2: The Rise of Corporate Market Power and Its Macroeconomic Effects’. In World Economic Outlook 2019, 55–76. Washington, DC: International Monetary Fund, 2019. https://doi.org/10.5089/9781484397480.081.
40. Kennedy, Duncan. ‘Cost-Benefit Analysis of Entitlement Problems: A Critique’. Stanford Law Review 33, no. 3 (1981): 387–445.
41. Khan, Lina. ‘The End of Antitrust History Revisited’. Harvard Law Review 133 (2020): 1655–82.
42. Kira, Beatriz. ‘Is IFood Starving the Market? Antitrust Enforcement in the Market for Online Food Delivery in Brazil’. World Competition 46, no. 2 (2023): 133–62.
43. Lamoreaux, Naomi R. The Great Merger Movement in American Business, 1895 - 1904. 1. paperback ed. Cambridge, UK: Cambridge University Press, 1988.
44. Lipsky Jr., Abbott B. ‘Antitrust Economics - Making Progress, Avoiding Regression’. George Mason Law Review 12, no. 1 (2003): 163–77.
45. Luciano, Laíse Da Correggio. ‘The AmBev Decision and the Regulation of Economic Power in Brazil: At a Crossroads between the US and the EU Competition Law Models’. World Competition 34, no. Issue 1 (2011): 139–55. https://doi.org/10.54648/WOCO2011007.
46. Martinez, Ana Paula. ‘Histórico e Desafios Do Controle de Concentrações Econômicas No Brasil’. Revista de Concorrência e Regulação 2, no. 7–8 (2011): 311–46.
47. Mason, Edward S. Economic Concentration and the Monopoly Problem. Cambridge, Mass: Harvard University Press, 1957.
48. McChesney, Fred S. ‘Economics versus Politics in Antitrust’. Harvard Journal of Law & Public Policy 23, no. 1 (1999): 133–44.
49. McCluskey, Martha T, Frank A Pasquale, and Jennifer Taub. ‘Law and Economics: Contemporary Approaches’. Yale Law and Policy Review 35 (2016): 297–308.
50. Miola, Iagê Zendron. ‘Competition Law and Neoliberalism: The Regulation of Economic Concentration in Brazil’. Revista Direito e Práxis 7, no. 4 (2016): 643–89. https://doi.org/10.12957/dep.2016.26512.
51. Monti, Giorgio. EC Competition Law. Cambridge, UK: Cambridge University Press, 2007.
52. OECD. ‘OECD Peer Reviews of Competition Law and Policy: Brazil’. Paris: Organisation for Economic Co-operation and Development, March 25th, 2019. https://www.oecd.org/competition/oecd-peer-reviews-of-competition-law-and-policy-brazil-2019.htm.
53. —. ‘Roundtable on Competition Policy, Industrial Policy and National Champions’. Global Forum on Competition, October 19th, 2009.
54. Onto, Gustavo. ‘Regulation as Cultural Transformation: The “Educational Role” of the Brazilian Competition Policy’. Revista Direito e Práxis 7, no. 4 (2016): 690–715. https://doi.org/10.12957/dep.2016.26507.
55. Posner, Richard A. ‘The Chicago School of Antitrust Analysis’. University of Pennsylvania Law Review 127, no. 4 (April 1979): 925. https://doi.org/10.2307/3311787.
56. Prado, Mariana Mota, Mario Schapiro, and Diogo R. Coutinho. ‘The Dilemmas of the Developmental State: Democracy and Economic Development in Brazil’. Law and Development Review 9, no. 2 (2016). https://doi.org/10.1515/ldr-2016-0015.
57. Ragazzo, Carlos Emmanuel Joppert, and Cristiane Landerdahl de Albuquerque. ‘From Post- to Pre-Merger Notification: The Ultimate Outreach Challenge’. CPI Antitrust Chronicle, no. 2 (2012): 1–8.
58. Robinson, Joan. The Economics of Imperfect Competition. London: Macmillan, 1979.
59. Rodrigues, Lorenna. ‘Novo Presidente Do Cade, Alexandre Cordeiro Diz Que Tenderá a Ser “Menos Intervencionista”’. Estadão, July 14th, 2021. https://economia.estadao.com.br/noticias/geral,novo-presidente-do-cade-alexandre-cordeiro-diz-que-tendera-a-ser-menos-intervencionista,70003778696.
60. Roosevelt, Theodore. Theodore Roosevelt: An Autobiography. Open Road Integrated Media, Inc., 2013.
61. Schapiro, Mario Gomes, and Fabiana Mesquita Bacchi. ‘Análise Dos Atos de Concentração No Brasil: Forma, Função e o Incrementalismo Reformista Do CADE’. In Direito Econômico Concorrencial, by Leonor Cordovil and Vinícius Marques de Carvalho, 49–96. São Paulo: Saraiva, 2013.
62. Schechter, Asher. ‘What Would Lina Khan’s FTC Nomination Mean For the Future of Antitrust Enforcement?’ Promarket (blog), March 10th, 2021. https://www.promarket.org/2021/03/10/biden-lina-khan-ftc-antitrust-enforcement-new-brandeis/.
63. Schneider, Ben Ross. ‘The Desarrollista State in Brazil and Mexico’. In The Developmental State, edited by Meredith Woo-Cumings, 276–305. Ithaca, NY: Cornell University Press, 1999. https://doi.org/10.7591/9781501720383-011.
64. Schuartz, Luis Fernando. ‘A Desconstitucionalização do Direito de Defesa da Concorrência’. FGV Direito Rio - Textos para Discussão, 2008. http://hdl.handle.net/10438/1762.
65. Schumacher, E. F. Small Is Beautiful: A Study of Economics as If People Mattered. Vintage Classics. London: Vintage Books, 1993.
66. Schumpeter, Joseph A., and A. J. Nichol. ‘Robinson’s Economics of Imperfect Competition’. Journal of Political Economy 42, no. 2 (April 1934): 249–59. https://doi.org/10.1086/254595.
67. Silva, Virgílio Afonso da. The Constitution of Brazil: A Contextual Analysis. Constitutional Systems of the World. Oxford, UK: Hart Publishing, 2019.
68. Silveira, Paulo Burnier da. Direito Da Concorrência. Rio de Janeiro: Editora Forense, 2020.
69. Skidmore, Thomas E. Politics in Brazil, 1930 - 1964. Oxford University Press, 2007. https://doi.org/10.1093/acprof:oso/9780195332698.001.0001.
70. Sullivan, E. Thomas. The Political Economy of the Sherman Act: The First One Hundred Years. Oxford: Oxford University Press, 1991.
71. Veblen, Thorstein. The Theory of Business Enterprise. Great Britain: Amazon, 2016.
72. Waller, Spencer Weber. ‘The Law and Economics Virus’. Cardozo Law Review 31, no. 2 (2009): 367–403.
73. Wilks, Stephen. ‘Competition Policy’. In The Oxford Handbook of Business and Government, by David Coen, Wyn Grant, and Graham Wilson. Oxford: Oxford University Press, 2010. https://doi.org/10.1093/oxfordhb/9780199214273.003.0033.
74. Wright, Joshua D., Elyse Dorsey, Jonathan Klick, and Jan M. Rybnicek. ‘Requiem for a Paradox: The Dubious Rise and Inevitable Fall of Hipster Antitrust’. Arizona State Law Journal 51, no. 1 (2019): 293–370.
75. Wu, Tim. ‘The Consumer Welfare Standard Is Too Tainted’. Promarket (blog), 19 April 2023. https://www.promarket.org/2023/04/19/the-consumer-welfare-standard-is-too-tainted/.
76. —. The Curse of Bigness: Antitrust in the New Gilded Age. New York, NY: Columbia Global Reports, 2018.
77. Zingales, Nicolo, and Bruno Renzetti. ‘Digital Platform Ecosystems and Conglomerate Mergers: A Review of the Brazilian Experience’. World Competition 45, no. Issue 4 (2022): 473–510. https://doi.org/10.54648/WOCO2022021.

___________________________________________________________________________

* For research support, the author thanks UKRI (grant reference MR/V025600/1) and the John Fell Fund. For helpful insight and feedback, the author thanks Diogo R. Coutinho, Iagê Zendron Miola, Robert Wai, participants in the panel ‘The Law and Political Economy of Market Competition’ at the 2022 Global Meeting on Law and Society in Lisbon, and participants in the writing workshop led by Ermal Frasheri at the 2022 IGLP Global Scholars Academy in Budapest.