It shouldn’t be news that The National Review came out in favor of the Consumer Welfare Standard in antitrust law, but it is. Many on the right, as well as the left, are ready to walk away from one of the greatest legacies of the philosophy of judicial restraint.
Alden Abbott and Tracy C. Miller wrote a strong piece that looks at what is at stake in current antitrust proposals from Democrats, often with support from Republicans. One set of proposals from Sen. Amy Klobuchar would evaluate mergers by the size of an acquiring company, while lowering the bar for convicting a firm of illegal monopolization. I would add that many on Capitol Hill are also getting behind a “precrime” proposal to shift the burden of proof to force businesses to prove that no harm could ever come from a proposed merger or acquisition.
Legal threats of such magnitude would prompt business to freeze. The result would undoubtedly be less innovation, less growth, fewer jobs.
Abbott and Miller also detail the 2020 studies by the House antitrust subcommittee endorsing sweeping regulation of digital platforms, more powers for the Federal Trade Commission to make rules, and tighter laws with a stronger emphasis on condemning dominant firm behavior out of hand, without regard the welfare of consumers. They would also use antitrust law to promote “fairness,” labor rights, as others have called to use antitrust law to instill better “values” in the American heart.
Abbott and McCall remind us that in Reiter v. Sonotone (1979), justice found that “Congress designed the Sherman Act as a ‘consumer welfare prescription.”
The money quote from this piece:
The antitrust consumer-welfare standard has served consumers well. Competitive forces have yielded a bounty of highly affordable and greatly enhanced digital products and services. The pace of innovation has been breathtaking. The last thing we should do is quickly impose new and amorphous antitrust restrictions that threaten this success story.
Antitrust law may not be able to repair the “values” of the American heart, but by anchoring the law to the Consumer Welfare Standard, the courts have allowed for four decades of economic growth and innovation. Why mess with that?