COMPETITION LAW AND NON-ECONOMIC CONSIDERATIONS: THE PARTICULAR CASE OF DEMOCRACY

Competition law seems to have a contentious relationship with non-economic considerations. In this article, we argue that democracy is a particular type of non-economic consideration that can and should inform competition law decision-making. Competition law theory developed in light of concerns that unchecked economic power could negatively impact democracy, and democratic legitimacy is key to empowering and justifying competition law decision-making in the first place. A direct concern with democracy therefore makes sense from within competition law as a discipline and from understandings of the democratic state that exist outside of competition law. With reference to two recent competition law decisions in New Zealand and India, we show that taking account of democracy is both justified and far from being controversial in practice.