The Consumer Welfare Debate Comes to the FTC Hearings: Who’s on the Right Side of History?

November 2018

The Consumer Welfare Debate Comes to the FTC Hearings: Who’s on the Right Side of History? By Joseph V. Coniglio (Wilson Sonsini Goodrich & Rosati)¹

Introduction

One of the greatest virtues of a consumer welfare standard is the ability to distinguish harm to competition from harm to competitors using an objective and empirical framework rooted in economics.  This is in contrast with standards that embody normative judgments about how many firms should exist in an industry to realize goals of furthering democracy or fairness.  Unsurprisingly, the FTC’s much anticipated hearing on the consumer welfare standard, which took place on November 1^st at Georgetown University Law Center, put on display a fundamental and ongoing debate among commentators about the merits of welfarist antitrust policy.  Unlike disagreements concerning the application of a consumer welfare standard to evaluate a particular category of business conduct, the FTC’s hearing may come to represent a sea change in the consumer welfare debate from the economic framework of error costs and administrability to a larger normative discourse in which reference to these types of economic decision criteria risks begging the question against non-welfarist standards.²

Within this latter modality, appeals to history emerged as somewhat of a theme amongst several panelists critical of a consumer welfare standard.³  That is, continued adherence to such a standard was not so implicitly suggested t