Alden Abbott, senior research fellow of the Mercatus Center, advances four reasons in a detailed study on “neo-Brandeisian” legislation, like that of Sen. Amy Klochubar, which would replace the Consumer Welfare Standard. Abbott offers the Cliff Notes in a short primer that spells out the four reasons why the neo-Brandeisian approach is intellectually bankrupt and dangerous.
 
The Market Is Working for Consumers: The neo-Brandeisians (let’s call them the NBs for now) hang their hats on an Obama Council of Economic Advisors report in 2016 purported to show that economic competition is in decline. Abbott demonstrates that these NB market definitions are overbroad. To put it in lay terms, he shows that big companies love to beat each other’s brains out in ways that are “procompetitive.”
 
No Reason to Think Breakups Will Help Consumers: NB proposals would “sacrifice major economies of scale and potential efficiencies of integration, harming consumers without offering any proof that the new market structures in reshaped industries would yield consumer or producer benefits.” If, as the NBs want, companies should have to prove in advance that their proposed merger will do no harm, why shouldn’t the government have to do the same?
 
Nebulous Metrics Like ‘Fairness’ Will Create Confusion: The NBs also call for new factors in antitrust, such as “fairness” and interests of labor and the environment. “There is no neutral principle for assigning weights to such divergent interests and … there are no economic tools for accurately measuring how a transaction under review would affect those interests,” Abbott writes. This would promote inefficiency in production – meaning higher prices, less innovation and fewer choices – and “promote arbitrariness in enforcement decisions.”
 
No Solution for Social Media Gripes: Finally, Abbott writes, that people on the right and left who are frustrated with big social media companies are reaching for an axe when they need a scalpel. All of business will suffer with a neo-Brandeisian approach to antitrust, which is another way of saying the economy and consumers will suffer, too.
 
Enough with the “neos.” The Brandeis approach didn’t work the first time, which is why the U.S. Supreme Court threw it out and has eagerly embraced the Consumer Welfare Standard since 1979.

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?

Sens. Amy Klobuchar and Elizabeth Warren make it clear their proposals for aggressive antitrust laws – liberated from the reigning Consumer Welfare Standard – will be used to reshape and manage not just Big Tech, but businesses in all sectors.
 
Sen. Warren, in her failed presidential bid, set the stage when she vowed to “appoint trustbusters” against purported monopolies in agriculture.
 
Now Mother Jones has a glowing piece about antitrust-progressives, like Lina Khan and Tim Wu, tapped by President Biden to serve on the Federal Trade Commission and National Economic Council, and how they will lead the charge not just against Big Tech, but against “Big Ag,” “Big Meat,” and “Big Poultry.” (Sounds better than “Big Chicken.”) While our eyes were on Facebook, Google and Twitter, the antitrust revolutionaries were licking their chops for Monsanto, Tysons and Smithfield.
 
It won’t stop there, of course. Also in their crosshairs are the airlines, energy companies, and financial service companies. It is almost as if the antitrust revolutionaries want to use the law to control all American business.

Hat tip to Matt Taibbi for pointing out that Columbia law professor Timothy Wu, now appointed to the National Economic Council by President Biden to revise antitrust law, wrote an article in 2017, “Is the First Amendment Obsolete?”
 
Taibbi notes the discrepancy between Wu calling himself a “devotee” of the great Supreme Court Justice Louis Brandeis (a proponent of “counter speech” against bad speech), while creeping up to the idea that the First Amendment “should be adapted to contemporary speech conditions.”
 
Such as … “to try to return the country to the kind of media environment that prevailed in the 1950s.”
 
Taibbi asks just what was it about the journalism of the 1950s we should celebrate – “a historically repressive atmosphere of conformity … all sorts of glaring social problems covered up or de-emphasized with relative ease,” including the impact of Jim Crow laws?
 
Money quote: “Every time a Democratic Party-aligned politician or activist says he or she wants the tech companies to take action to prevent, say, the dissemination of fake news, one has to realize that it makes little sense for those same actors to then turn around and advocate for breakup of those same firms.”
 
Does if it makes sense for the White House to rely on someone to revise antitrust law to break up Big Tech social media companies – ostensibly because of dysfunctional speech – who also believes the First Amendment is a relic of a bygone era, like wigs and stockings?

Kathleen S. O'Neill, senior director of investigations and litigation for the Antitrust Division, told Law 360 that merger filings are coming in at an “unprecedented volume.”

She also said something that indicates that the philosophy of the Antitrust Division has completely abandoned the Consumer Welfare Standard and reverted to the Brandeis-Douglas years of legal analysis by lurid adjective and disturbing verbs.

“To conclude that such transactions cannot be challenged under the antitrust laws is untenable because it would allow dominant firms with deep pockets to gobble up nascent competitive threats with impunity,” she said. “I believe you will continue to see enforcement in this area.”

Ms. O’Neill’s vocabulary is telling. Companies are bad because they are “dominant,” have “deep pockets” and “gobble” nascent competitive threats. Her standards jettison the historic metric of whether or not a given merger or acquisition harms consumers. It overlooks the evidence that the fondest dreams of innovators is to have their start-ups “gobbled up” for billions of dollars by companies with the capacity to realize their services with scale and depth.

​If anything, the larger big tech companies are acting as venture capital funds. As for their dominance, the emergence of blockchain, AI and quantum computing promises to disrupt the current ecosystem. We should let this wave of disruption unfold before throwing out almost a half-century of judicial doctrine that has served us well.

Sen. Amy Klobuchar, chair of the Senate Judiciary subcommittee on antitrust, is honing legislation to recast antitrust law for a more “competitive” economy. Her vision of antitrust would put all corporations in America on double-secret probation – with powers so sweeping that businesses of all sorts would have to clear virtually any plan with Washington before acting.
 
Sen. Klobuchar wants:
 

• Another antitrust division in the FTC.

 

• To prevent “anti competitive” actions by big companies, which presumably would cover crimes like delivering a superior product at a lower price.

 

• Force companies to prove to a Philip K. Dick-like pre-crime unit that nothing done today will cause harm in the future.

 
Making her job all that easier are Republicans so angry at woke Big Tech that they have forgotten that someone in Washington needs to defend capitalism, the free market and the Consumer Welfare Standard.
 
“Why should any dominant corporation be able to merge with any other entity?” Sen. Josh Hawley (R-Mo.) said during the Thursday hearing. “Why should Google, for instance, or Facebook be able to buy anything else given their dominant size?”
 
Why indeed? Those are 101 questions, which is surpassingly strange for a graduate of Stanford University and Yale Law School. Surely, Sen. Hawley could answer his own questions. He knows that these rules, while inflicting damage on social media platforms he hates, will also subject the rest of the economy to deep, sustained regulation at every turn.
 
We are on the verge of seeing the passage of broad social control of all American business under the guise of antitrust legislation. The result will be higher prices and fewer choices for American consumers and a less competitive America against China.
 
And if it happens, it will be because of the complicity of Republicans.