A PYMNTS Company

After Consumer Welfare, Now What? The ‘Protection of Competition’ Standard in Practice

By  |  October 7, 2018

Posted by Social Science Research Network

    Get the Full Story

    Complete the form to unlock this article and enjoy unlimited free access to all PYMNTS content — no additional logins required.

    yesSubscribe to our daily newsletter, PYMNTS Today.

    By completing this form, you agree to receive marketing communications from PYMNTS and to the sharing of your information with our sponsor, if applicable, in accordance with our Privacy Policy and Terms and Conditions.

    After Consumer Welfare, Now What? The ‘Protection of Competition’ Standard in Practice

    By Tim Wu 

    The consumer welfare standard in antitrust has been heavily criticized. But would, in fact, abandoning the “consumer welfare” standard make the antitrust law too unworkable and indeterminate?

    I argue that there is such a thing as a post-consumer welfare antitrust that is practicable and arguably as predictable as the consumer welfare standard. In practice, the consumer welfare standard has not set a high bar. The leading alternative standard, the “protection of competition” is at least as predictable, and arguably more determinate than the exceeding abstract abstract consumer welfare test, while being much truer the legislative intent underlying the antitrust laws. More concretely, we should return to asking, in most antitrust cases, the following question: Given a suspect conduct (or merger): Is this merely part of the competitive process, or is it meant to “suppress or even destroy competition?” This standard actually already forms a part of antitrust doctrine. What changes is eliminating “consumer welfare” as a final or necessary consideration in every case.

    Continue reading…