Consumer Choice as the Best Way to Describe the Goals of Competition Law

Robert H. Lande, (University of Baltimore – School of Law) describes Consumer Choice as the Best Way to Describe the Goals of Competition Law.

ABSTRACT: This article is both a short introduction to the Consumer Choice explanation for Competition Law or Antitrust Law, and also a short advocacy piece suggesting that Consumer Choice is the best way to articulate the goals of European Competition Law and United States Antitrust Law.

This article briefly: 1. defines the consumer choice approach to antitrust or competition law and shows how it differs from other approaches; 2. shows that the antitrust statutes and theories of violation embody a concern for optimal levels of consumer choice; 3. shows that the United States antitrust case law embodies a concern for optimal levels of consumer choice; 4. presents evidence of the new paradigm: United States v. Microsoft; 5. argues that non-price competition should become a higher priority for he enforcers; 6. Discusses Consumer Choice and the media.

The article shows that the choice framework has many advantages. It takes full account of all the things that are actually important to consumers – price, of course, but also variety, innovation, quality, and other forms of non-price competition. It is also far more transparent, which is an important administrative virtue even where, as in the great majority of cases, it will reach the same result. And in some important real-world situations it will lead to better substantive outcomes. There are a number of variety-valuing industries and circumstances that can be assessed correctly only by including an effective analysis of nonprice factors. We identify these in the article.