62 N.Y.U. L. Rev. 1020 (1987)
The Economic Goals of Antitrust: Efficiency, Consumer Welfare, and Technoclogical Progress

handle is hein.journals/nylr62 and id is 1036 raw text is: THE ECONOMIC GOALS OF ANTITRUST:
EFFICIENCY, CONSUMER WELFARE, AND
TECHNOLOGICAL PROGRESS
JOSEPH F. BRODLEY*
INTRODUCTION
For a generation a passionate debate has divided the antitrust com-
munity. Does antitrust law encompass non-economic goals or is the law
limited to purely economic objectives, most particularly economic effi-
ciency? In recent years efficiency advocates have gained ascendancy,
powerfully assisted by the perception that efficiency analysis in antitrust
is scientific and rigorous, as contrasted with the softer values of a more
inclusive approach that would encompass non-economic values. As a
result, legal opinions and academic writings abound with discussions of
economic efficiency and the related concept of consumer welfare. But
while these terms are much used in antitrust writing, they are little ana-
lyzed. The startling result is that efficiency and consumer welfare have
become the dominant terms of antitrust discourse without any clear con-
sensus as to what they exactly mean.
In this Article I attempt to develop a coherent meaning for effi-
ciency and consumer welfare as applied to antitrust law, to draw out the
policy implications that follow from such an articulation, and to examine
whether an antitrust policy expressed purely in these terms can ade-
quately achieve antitrust goals.
My analysis will suggest that contrary to current usage, efficiency
and consumer welfare are not identical, but have distinct meanings, with
sometimes conflicting policy implications. Focusing in turn on efficiency
and consumer welfare, I argue that both concepts require clarification
and more precise definition. Efficiency is not unitary, but breaks down
into several differing types of efficiencies, some more vital to antitrust
enforcement than others. Consumer welfare in turn is not the identical
* Professor and Kenison Distinguished Scholar of Law, Boston University. Helpful com-
ments were received from Airlie House Conference commentators Walter Adams, Phillip
Areeda, and Jerome Hochberg, and also from Scott Bales, Robert Bone, Ronald Cass, Jane
Cohen, Clayton Gillette, Michael Harper, Robert Lande, Robert Marks, Stephen Salop, Louis
Schwartz, Robert Seidman, Ingo Vogelsang, and the participants in the Boston University
Legal Theory Workshop. Thanks are also due to Beth F. Kirk for valuable research assist-
ance, and to the Centre for Socio-Legal Studies of Oxford University, where I did some of the
thinking for this Article.
1020

Imaged with the Permission of N.Y.U. Law Review

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