Four Misconceptions About the Consumer Welfare Standard
The consumer welfare standard has been the subject of a very effective contestation in modern antitrust law and policy literature. This contestation targets mostly United States law but, as we know, ideas travel fast. In spite of differences in law, policy, and institutions, contestations of consumer welfare frameworks have also emerged in slightly different terms in the European Union .
In this article, we lay bare the fundamental flaws of the modern critique of the consumer welfare standard. We show that critics misrepresent the meaning of the consumer welfare standard, distort the U.S. case law, and ignore important facts that do not align with their normative preferences. We conclude with the assertion that many criticisms of the consumer welfare standard among U.S. antitrust scholars reflect a critique of the U.S. judiciary’s attitude toward uncertainty and hard evidence rather than a critique of the consumer welfare standard itself.