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26 Geo. Mason L. Rev. 1435 (2018-2019)
Recalibrating the Dialogue on Welfare Standards: Reinserting the Total Welfare Standard into the Debate

handle is hein.journals/gmlr26 and id is 1495 raw text is: 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- 1435 2019]1