Antitrust Chronicle® – Consumer Welfare… A Technocrat & A Populist Walk Into A Bar

Dear Readers,

In this issue of the CPI Antitrust Chronicle®, we tackle the ongoing debate surrounding the consumer welfare standard in antitrust law.

Since the rise to pre-eminence in the 1970s of the U.S. Chicago School, and the “more economic approach” to competition law enforcement in the EU in the 1990s, the consensus was, for a long time, that the overarching goal of antitrust rules should be to protect “consumer welfare.”

While its contours are hotly debated, even by its proponents, the notion of consumer welfare permeates all aspects of antitrust enforcement, ranging from anticompetitive agreements, to alleged monopolization, to merger control. More recently, however, critics of current antitrust enforcement (and in the view of some – under-enforcement) have called this consensus into question.

This has been spurred on largely by technological developments, which render the quantification of consumer welfare difficult in high tech markets, and call into question the analytical framework that competition enforcers have used over the past decades.

As in other hotly constested-debates, participants on one side or the other are known by colorful labels: “Hipsters,” “Neo-Brandeisians” or “populists,” on the one hand, are pitted against “technocrats,” or “Borkians,” on the other. This issue compiles a range of articles from across this spectrum. While this debate will no doubt rage on for some time to come, each of these article