Antitrust’s Neglected Question: Who Is “The Consumer”?

Abstract

In a period when debate about the goals, scope, and effectiveness of antitrust policy and law is flourishing, it is timely to revisit the fundamental question of whose interests these instruments are intended to protect. In considering whether antitrust’s primary concern should be with consumer welfare, few have paused to consider the nature of consumer identity other than through the narrow economic prism of the purchase and use of goods and services. However, consumers are not mere choosers of offerings in the market place, an identity itself riven by complexity and contradiction. Consumers act also as citizens and workers in markets. Recognition of the multifaceted and indivisible character of consumer identity promotes a richer more sophisticated approach to defining and applying a consumer welfare standard. The case for such an approach is illuminated in the context of the new economy in which the interests of consumer-citizens and consumer-workers are directly implicated by the challenges facing competition in digital markets.