Stand By Me: The Consumer Welfare Standard and the First Amendment

In America we want institutions that make our democracy strong—that seems like a no brainer. So as one line of thinking goes, antitrust enforcers should step beyond consumer welfare and think about what would be good or bad for our democracy, or for values like the free speech the First Amendment protects. The suggestion is that perhaps enforcers should broaden the consumer welfare lens to think about effects on democracy or expression. I’d like to focus my remarks today on two responses to that suggestion. First, we shouldn’t go down that road, because enforcement actions purportedly aimed at supporting our democracy carry too great a risk of inadvertently undermining our constitutional values. Second, we don’t need to go beyond the consumer welfare standard, because it can get the job done on its own. 

As you consider the health of our democracy and the role of media platforms and other institutions in it, I urge you to recall the surest path to undermining the First Amendment: exercising government power based on viewpoint. The consumer welfare standard does not blind us as enforcers; it focuses our decisions on appropriate considerations like price, output, innovation, quality, and choice. Enforcement of the free markets for the benefit of consumers can be achieved with greater success, and greater fidelity to the rule of law, within the contours of the consumer welfare standard, than without.  

[Makan Delrahim is the United States Assistant Attorney General for the Antitrust Division]