Say Goodbye to the Antitrust Consumer Welfare Standard

The Trump administration seems set to follow Lina Khan’s shambolic ‘big is bad, little is good’ philosophy.

By Robert H. Bork Jr.

May 1, 2025

“When someone shows you who they are,” Maya Angelou once said, “believe them the first time.” In a Monday address before the University of Notre Dame Law School, Gail Slater, the new assistant attorney general for the Justice Department’s Antitrust Division, told us exactly who she is.

“We will stand for America’s forgotten consumers,” she said. “We will stand for America’s forgotten workers. And we will stand for the small businesses and innovators, from Little Tech, to manufacturing, to family farms, that were forgotten by our economic policies for too long.”

She continued: “We are here to serve all Americans and wish to move away from the deeply technocratic and elitist mindset that has imbued antitrust law and enforcement for several decades. I humbly submit that if a farmer in Indiana or Iowa cannot make sense of our work, the fault lies with us, not with the farmer.”

An actual farmer, who likely checks the global spot price for wheat every morning, doesn’t need Ms. Slater to use simple words to explain market realities. He’s probably questioning why she doesn’t seem to realize that farmers and workers are consumers too. Antitrust enforcement has long been governed by the consumer welfare standard, effectively endorsed by the Supreme Court in 1979, which judges business practices on whether they harm consumers by raising prices or reducing competition, choice, quality or innovation. It doesn’t try to manage the labor market or rectify longstanding racial disparities.

The genius of the consumer welfare standard is its discipline and neutrality. It gives regulators and jurists little room to impose their own biases on the world. And it acknowledges implicitly that the biggest and most dangerous monopoly is the one in Washington. This approach contributed to an unprecedented rise in income, living standards and social wealth between 1979 and 2020.

But Ms. Slater and Federal Trade Commission Chairman Andrew Ferguson discarded the consumer welfare standard when they announced that they would be continuing the merger guidelines of former FTC Chairman Lina Khan. Under these guidelines, the government operates according to a “big is bad, little is good” antitrust philosophy, meaning it targets mergers and acquisitions even when they advance competition and don’t cause discernible harm to consumers. The result is excessive regulation and reduced innovation—which is why a bipartisan group of 17 former FTC and DOJ chief economists criticized the guidelines in 2023 for ignoring “consensus economic understanding.” The guidelines don’t even mention the consumer welfare standard, even though it remains the legal standard used by the courts.

The Trump administration seems set to continue this shambolic course. I’m almost sorry to see Ms. Khan go. I prefer my socialism neat, without any cant from Ms. Slater about her “deeply conservative position.”

Ms. Slater’s speech was chock full of endearing platitudes. But it lacked logic. She assailed online platforms that “control not just the prices of their services, but the flow of our nation’s commerce and communication.” What prices? Facebook, Instagram, Google, LinkedIn and YouTube don’t charge consumers a penny. Amazon accounts for less than 40% of online sales in the U.S., and only 4% of retail sales. Dozens of major social-media platforms must compete with each other, not to mention streaming channels and other technologies.

These platforms have become the nation’s political town hall. Big Tech’s censorship of conservatives over the past several years was an outrage and a grievous mistake. I was hoping Ms. Slater and Mr. Ferguson were simply acting out of residual anger over those misguided policies. But no. They are true believers in Ms. Khan’s regulatory regime. Tip your hat to the new constitution and take a bow for the new revolution, for the new antitrust boss is the same as the old one.

Mr. Bork is president of the Antitrust Education Project.

This article originally appeared in https://www.wsj.com/opinion/say-goodbye-to-the-antitrust-consumer-welfare-standard-0510be30?mod=e2twoThe Wall Street Journal