The Nanny State Goes Shopping
Antitrust used to ask a simple question: are firms making consumers worse off? Increasingly, it asks a different one: are consumers making the “wrong” choices?
The consumer welfare standard (CWS) often draws criticism as narrow or inattentive to broader concerns. That familiar critique rests on a basic misunderstanding of what the standard is designed to do.
At bottom, the disagreement concerns what should trigger antitrust intervention. Under the CWS, intervention is warranted when market power distorts consumer demand—when firms restrict output and raise prices, blocking transactions that would otherwise occur. The issue is not what consumers choose, but whether firms have constrained or manipulated those choices.
Many contemporary critiques start from a different premise. They would justify intervention even when consumers freely select among available options. On this view, market outcomes—the dominance of certain platforms, levels of concentration, particular business models—count as problematic not because demand is distorted, but because they reflect preferences that regulators or scholars dislike. Neo-Brandeisian theorists have pushed to replace the CWS with a new legal standard, arguing that the existing framework errs in “orienting antitrust toward material rather than political ends” and should instead serve as a tool for “improving democratic self-government.”
That shift creates a paradox. Proponents frame their approach as populist and democratic , urging that antitrust operate “not solely as part of corporate law, but also as part of political law” in service of the “public interest.” Yet it requires sidelining the preferences of the very consumers it claims to protect.
In practice, this approach replaces the public’s revealed preferences with an abstract vision of what regulators think the “Public Interest” should be. That vision often runs in the opposite direction—correcting, rather than enabling, consumer choices. We call this “anti-consumer welfare antitrust”: anti-consumer in substance, while functioning as a welfare check for laggard competitors, politically salient groups, and other rent-seekers.
The result is predictable. Real consumers end up footing the bill for regulators’ paternalism and for the academic theories that encourage it.