For the last several years, debate over the proper role of antitrust has not been limited to academics, economists, lawyers, and judges, but routinely includes politicians, journalists, and increasingly the general public. Critics of modern antitrust enforcement are raising concerns about increasing concentrations of economic power, especially in high-profile sectors such as internet search, social networking, and e-commerce. Some refer to these critics as “antitrust populists,” and label a growing group of such critics the “New Brandeis School.”
Many antitrust populists question whether the consumer welfare standard, with its focus on prices, output, and product quality, is capable of addressing harmful concentrations of economic power in the modern economy. Others argue that antitrust has a broader role to play in U.S. society; rather than focusing, as it now does, on anticompetitive conduct, these populists argue that antitrust should address a broad range of social ills, including wealth and income inequality, the influence of money in American politics, the erosion of privacy, and systemic threats posed by firms that are “too big to fail.” Some proposals would address these social ills by having antitrust enforcement agencies and courts directly consider them when reviewing conduct. But most proposals would use antitrust enforcement to attack these problems indirectly, through policies that their proponents argue would more aggressively promote open markets and competition.
Because populists often frame their critiques as rejecting the consumer welfare standard, responses have frequently focused on defending that standard. Some commentators have targeted the populists’ sweeping rhetoric and references to broad societal goals to argue that antitrust should “stay in its lane,” but have not engaged to the same extent with the populists’ specific reform proposals or underlying concerns about economic power. Others have responded that more aggressive enforcement may be beneficial, but argue that the agencies and courts should use existing tools associated with a consumer welfare approach. In rebuttal, populists have argued that the antitrust establishment is missing their points or refusing to engage in a meaningful discussion about true reform.
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The authors would like to thank Rajesh James for valuable comments on an earlier version of this article.
