Recalibrating the Dialogue on Welfare Standards: Reinserting the Total Welfare Standard into the Debate
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RECALIBRATING THE DIALOGUE ON WELFARE
STANDARDS: REINSERTING THE TOTAL WELFARE
STANDARD INTO THE DEBATE
Christine S. Wilson, Thomas J Klotz & Jeremy A. Sandford*
INTRODUCTION
Antitrust enforcement and policy are currently the subject of significant
political attention. Commentators argue that antitrust enforcement has been
too permissive in recent years, causing the US economy to become more
concentrated and less competitive.' Ultimately, these commentators blame
the United States' longstanding, previously bipartisan antitrust policy for in-
creasing income inequality, depressing wages, and reducing innovation.2
These observers recognize that the consumer welfare standard,3 the yardstick
used to evaluate mergers and competitive conduct for more than forty years,
is an intellectual barrier to their desired restructuring of antitrust policy and
enforcement. Politicians and thinktanks consequently have issued numerous
reform proposals designed to address the alleged failings of the American
approach to competition law.4
* The views expressed in this article are solely those of the Authors and do not necessarily reflect
the views of the Federal Trade Commission or any Commissioner. We would like to thank Danny Sokol,
Joshua Wright, Alison Oldale, Bruce Kobayashi, James Cooper, and Bruce Hoffman for helpful comments
on the oral remarks presented at the George Mason University Law Review Symposium that was the
precursor for this article. See Christine S. Wilson, Welfare Standards Underlying Antitrust Enforcement:
What You Measure Is What You Get, Luncheon Keynote Address at the George Mason University Law
Review 22nd Annual Antitrust Symposium: Antitrust at the Crossroads? (Feb. 15, 2019),
https://www.ftc.gov/system/files/documents/public-statements/1455663/welfare-standard_
speech_-_cmr-wilson.pdf. We would also like to thank Nathan Wilson and participants at an FTC Bureau
of Economics seminar for helpful conversations and comments.
1 See, e.g., MARSHALL STEINBAUM & MAURICE E. STUCKE, THE EFFECTIVE COMPETITION
STANDARD: A NEW STANDARD FOR ANTITRUST 1 (2018), http://rooseveltinstitute.org/wp-content/
uploads/2018/09/The-Effective-Competition-Standard-FINAL.pdf.
2 See, e.g., SENATE DEMOCRATS, A BETTER DEAL: CRACKING DOWN ON CORPORATE
MONOPOLIES 1 (2017) [hereinafter A BETTER DEAL], https://www.democrats.senate.gov/imo/media/
doc/2017/07/A-Better-Deal-on-Competition-and-Costs-1.pdf (Over the past thirty years, growing corpo-
rate influence and consolidation has led to reductions in competition, choice for consumers, and bargain-
ing power for workers. The extensive concentration of power in the hands of a few corporations hurts
wages, undermines job growth, and threatens to squeeze out small businesses, suppliers, and new, inno-
vative competitors.).
3 The consumer welfare standard is discussed infra Part 11.
4 See, e.g., A BETTER DEAL, supra note 2, at 1; Press Release, Amy Klobuchar, U.S. Senator, Sen-
ators Introduce Legislation to Modernize Antitrust Enforcement (Sept. 14, 2017),
https://www.klobuchar.senate.gov/public/index.cfm/2017/9/klobuchar-senators-introduce-legislation-to-
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2019]1](ViewImageLocal?handle=hein.journals/gmlr26&div=58&collection=&method=preview&ext=.png&size=3)
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Recalibrating the Dialogue on Welfare Standards: Reinserting the Total Welfare Standard into the Debate
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