Antitrust in Retrograde: The Consumer Welfare Standard, Socio-Political Goals, and the Future of Enforcement

Abstract

Part I of this Chapter examines the history of antitrust law to contextualize the current debate regarding the consumer welfare standard. It addresses the numerous legislative history arguments and examines the courts’ experience enforcing the antitrust laws over the last 130 years, tracing the reasoning behind antitrust law’s developments and its adoption of the consumer welfare standard. Part II describes what the consumer welfare standard is and how it operates today, demonstrating its robustness and articulating its many benefits—to the courts, to enforcers, to firms, and to the public at large. Part III turns to the current debate, analyzing the validity and identifying the shortcomings of the arguments neo-Brandeisians proffer in support of abandoning the consumer welfare standard. Part IV concludes. This Chapter does not necessarily reflect the views of the Department of Justice. I would like to thank Judge Douglas H. Ginsburg and Josh Wright for valuable comments and discussion.