Commentary - Competition Policy after Health Care Reform: Mending Holes in Antitrust Law's Protective Net.

Antitrust law has been characterized as godfather to competition in health care, as landmark cases removed professional restraints of trade and challenged anticompetitive joint ventures and networks that had inhibited market approaches. More recently, antitrust may seem more like an absentee father, as unchecked consolidation over the past fifteen years resulted in markets with dominant providers whose high prices became a major driver of health cost inflation. With health care reform encouraging much-needed integration, policy makers and commercial payers have begun to question whether the law provided tools adequate to blunt the adverse effects of extant market power and whether judicial and enforcement resources would be able to prevent a recurrence of anticompetitive consolidations. It is curious that antitrust law and competition policy remained in the shadows during the health reform debate. Only after its enactment did policy makers and commenters take notice of the fact that the Affordable Care Act’s strong reliance on competition (Greaney 2011) might be undermined by existing market structures and the incentives the law provides to consolidate further. In the foregoing article in this special issue, Robert F. Leibenluft (2015), one of the nation’s leading antitrust practitioners and a former Federal Trade Commission official, identifies many of the important challenges facing antitrust enforcers and tribunals going forward: for example, the need to take on both hard cases, including hospital-physician consolidations that foreclose competition or raise rivals’costs, and innovative challenges reflective of rapidly changing industry