The Profound Nonsense of Consumer Welfare Antitrust

Abstract

Despite being the prevailing wisdom, consumer welfare antitrust rests on a bed of nonsense. First, consumer welfare antitrust is built on false history and a rewriting of legislative intent. Second, it relies on a false conception of the market and submerges the state construction of the economy. Third, it depends on, and is informed by, false assumptions about business conduct. While the third falsehood suggests an analytical renovation and better antitrust economics are sorely needed, the first two falsehoods show that empirical improvements are necessary but not enough. These falsehoods together mean that the entire enterprise at present is built on a bed of sand and that a fundamental reconstruction of antitrust is required. An antitrust that promotes an equitable economy and protects democratic institutions will be true to legislative intent, recognize the state construction of the marketplace, and informed by empiricism.