Competitive Edge: Protecting the “competitive process”—the evolution of antitrust enforcement in the United States

The Federal Trade Commission is tackling a central question of competition: Are the goals of antitrust enforcement in the United States best pursued by applying what’s known as the consumer welfare standard? But what does it mean just to safeguard “consumer” welfare? From its inception, the term has been surrounded by uncertainty, in part because the influential Chicago-School jurist and former Solicitor General of the United States Robert Bork himself thought that competitive effects should look beyond consumers to what economists label “total welfare” or the overall value produced by a particular market’s organization, independent of the specific way that gains or losses to individual firms are distributed. And now, the term is under attack. Legal phrases are not talismanic. The application of any formulation requires hard work, a close eye on evidence, and continued attention to competitive effects. But it is notable that leading antitrust scholars will focus us on protecting the competitive process as the next step in the evolution of antitrust.

[Jonathan B. Sallet is a senior fellow at the Benton Foundation and previously general counsel of the Federal Communications Commission and deputy assistant attorney general in the Antitrust Division of the U.S. Department of Justice]