WilmerHale’s Leon Greenfield, Perry Lange and Nicole Callan authored an article for the Antitrust Law Journal, “Antitrust Populism and the Consumer Welfare Standard: What Are We Actually Debating?"
Excerpt: For the last several years, debate over the proper role of antitrust has not been limited to academics, economists, lawyers, and judges, but routinely includes politicians, journalists, and increasingly the general public. Critics of modern antitrust enforcement are raising concerns about increasing concentrations of economic power, especially in high-profile sectors such as internet search, social networking, and e-commerce. Some refer to these critics as “antitrust populists,” and label a growing group of such critics the “New Brandeis School.”
Many antitrust populists question whether the consumer welfare standard, with its focus on prices, output, and product quality, is capable of addressing harmful concentrations of economic power in the modern economy. Others argue that antitrust has a broader role to play in U.S. society; rather than focusing, as it now does, on anticompetitive conduct, these populists argue that antitrust should address a broad range of social ills, including wealth and income inequality, the influence of money in American politics, the erosion of privacy, and systemic threats posed by firms that are “too big to fail.” Some proposals would address these social ills by having antitrust enforcement agencies and courts directly consider them when reviewing conduct. But most proposals would use antitrust enforcement to attack these problems indirectly, through policies that their proponents argue would more aggressively promote open markets and competition.
