Competition policy is a work in progress. Charting the future course of competition policy can benefit heavily from looking back and asking two fundamental questions. First, did the agency’s interventions produce good results? Second, did the agency’s managerial processes help ensure that the agency selected initiatives that would yield good outcomes? This article discusses how government competition authorities might use ex post evaluations of enforcement decisions, operational mechanisms, and organizational design to improve the quality of their work. Preparing performance measures and conducting evaluations provide valuable tools for answering critical questions about the administration of competition policy.
The article also examines the value of ex post analyses of previous public enforcement actions. It first describes an evaluation of the contribution of an agency’s outputs to attainment of the goals embodied in the relevant competition laws and provides an assessment of the quality of the competition agency’s internal operations and processes from which agencies might undertake to improve the quality of their work. It then identifies a number of rationales for establishing and applying performance measures to evaluate the effectiveness of the substantive interventions and operational procedures of competition policy agencies. These include experimentation by making policy amid uncertainties, limited transparency through policymaking by settlement, evaluation through jurisprudence and enforcement policy, and institutional multiplicity.
The article next discusses the past experience of competition agencies in conducting ex post analyses of substantive outputs and operational procedures. There are three types of evaluation related activities of note concerning competition agencies: (1) general assessments of competition agency performance and evaluation efforts; (2) evaluations of the effects of individual interventions such as case or advocacy initiatives; and (3) evaluations of agency processes or programs. Noteworthy examples of these activities provide a context for the author’s proposals, which present methodologies for performing evaluations. An agency’s development or revision of a performance measurement system must overcome various hurdles—e.g., expense—and issues concerning the creation of the methodology and how to conduct ex post assessments. An agency must also define what constitutes good internal agency procedures. Ex post evaluation of results is important for all institutions, but especially critical for competition agencies because they rely heavily on experimentation and evolutionary adjustment. The aphorism often applied to the growth of individuals rings true in the field of public policy: it is what you learn after you know it all that really counts.
GW Paper Series
GWU Legal Studies Research Paper No. 2012-5; GWU Law School Public Law Research Paper No. 2012-5
William E. Kovacic, Using Ex Post Evaluations to Improve the Performance of Competition Policy Authorities, 31 J. Corp. L. 503 (2006).