Antitrust Populism and the Consumer Welfare Standard: What Are We Really Debating? | WilmerHale


In recent years, the debate over the appropriate role of antitrust has not been confined to academics, economists, lawyers and judges, but regularly includes politicians, journalists and, increasingly, the General public. Critics of modern antitrust law enforcement raise concerns about growing concentrations of economic power, especially in high-profile industries such as internet research, social media, and e-commerce. Some refer to these critics as “antitrust populists” and refer to a growing group of such critics as “New Brandeis School”.

Many antitrust populists question whether the standard of consumer welfare, with an emphasis on price, production and product quality, is capable of combating harmful concentrations of economic power in the modern economy. Others argue that antitrust has a larger role to play in American society; Rather than focusing, as is currently the case, on anti-competitive behavior, these populists argue that antitrust should tackle a wide range of social ills, including inequality of wealth and income, l influence of money in US politics, the erosion of privacy and the systemic threats posed. by companies “too big to fail”. Some proposals would address these social ills by having antitrust law enforcement agencies and courts directly consider them when reviewing conduct. But most of the proposals would use antitrust enforcement to indirectly tackle these problems, through policies that their proponents say would more aggressively promote open markets and competition.

Originally published in Antitrust Law Journal – December 2020.

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