The FTC, DOJ, and International Competition Law: Convergence Away From the Consumer Welfare Standard?

In less than two and a half years, the Federal Trade Commission (FTC) and U.S. Justice Department (DOJ) have undone more than two decades of work aimed at moving global competition law toward an economics-friendly consumer welfare standard. In tandem with foreign competition authorities, the U.S. antitrust agencies are now cooperating in an effort to lead competition law in a consumer welfare-inimical direction, characterized by the promotion of debunked structuralist antitrust principles and a disdain for economic efficiency.

To better appreciate the dramatic turnabout represented by recent policy, an overview of U.S. efforts to promote global convergence toward best practices in competition law—an effort in which DOJ and FTC played leading roles—is warranted. In particular, I will focus on the role played over two decades by the International Competition Network (ICN) in fostering support for an economics-based, consumer welfare-centric approach to competition policy. Unfortunately, the Biden administration’s antitrust policies have short-circuited these efforts, at least temporarily.

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