ANTITRUST POPULISM AND THE CONSUMER
WELFARE STANDARD: WHAT ARE WE
ACTUALLY DEBATING?
L
EON
B. G
REENFIELD
P
ERRY
A. L
ANGE
N
ICOLE
C
ALLAN
*
For the last several years, debate over the proper role of antitrust has not
been limited to academics, economists, lawyers, and judges, but routinely in-
cludes politicians, journalists, and increasingly the general public. Critics of
modern antitrust enforcement are raising concerns about increasing concentra-
tions of economic power, especially in high-profile sectors such as internet
search, social networking, and e-commerce. Some refer to these critics as “an-
titrust populists,” and label a growing group of such critics the “New Brandeis
School.”
1
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 fo-
cusing, as it now does, on anticompetitive conduct, these populists argue that
antitrust should address a broad range of social ills, including wealth and in-
come 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
* Members of the District of Columbia Bar. The authors would like to thank Rajesh James
for valuable comments on an earlier version of this article.
1
Louis Brandeis was a leading voice against rising economic concentration in the early 20th
century. He saw concentrated economic power as dangerous and warned about the “curse of
bigness.” L
OUIS
D. B
RANDEIS
, T
HE
C
URSE OF
B
IGNESS
(Osmond K. Fraenkel ed.,1934). Antitrust
populists’ association with Brandeis may be overstated. For example, some populists have sug-
gested regulating online platforms as public utilities. Brandeis, however, was skeptical of public-
utility regulation and worried that replacing competition with a regulatory regime would lead to
regulatory capture. See Jonathan Taplin, Opinion, Is It Time to Break Up Google?, N.Y. T
IMES
(Apr. 22, 2017), www.nytimes.com/2017/04/22/opinion/sunday/is-it-time-to-break-up
google.html.
393
83 Antitrust Law Journal No. 2 (2020). Copyright 2020 American Bar Association. Reproduced
by permission. All rights reserved. This information or any por tion thereof may not be copied
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database or retrieval system without the express written consent of the American Bar
Association.
394 A
NTITRUST
L
AW
J
OURNAL
[Vol. 83
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 wel-
fare standard, responses have frequently focused on defending that standard.
2
Some commentators have targeted the populists’ sweeping rhetoric and refer-
ences 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 re-
sponded 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 estab-
lishment is missing their points or refusing to engage in a meaningful discus-
sion about true reform.
3
To clarify the parameters of this debate, we examine where antitrust popu-
list proposals and mainstream antitrust analysis materially overlap, and where
they fundamentally diverge. We proceed in two parts. First, we briefly contex-
tualize today’s antitrust populism and describe the arguments put forward by
contributors to the debate. We also describe responses from mainstream com-
mentators and the populists’ rebuttals. The number of contributors to the de-
bate is increasing rapidly, and we do not attempt to catalogue all commentary.
Instead, we describe archetypal contributions.
Second, we present a framework to evaluate populist proposals for reform.
We divide proposed reforms into two categories. Proposals in the first cate-
gory, properly understood, seek to advance goals—such as lower prices and
enhanced output, quality, and innovation—that the consumer welfare standard
advances, but propose to advance those goals through more interventionist
approaches. Proposals in the second category seek to advance economic or
political goals that the consumer welfare standard does not (or at least does
not directly) advance. The proposals in the second category would either rely
on laws other than the antitrust laws or else fundamentally change the antitrust
benchmark and potentially sacrifice consumer welfare to pursue other goals.
2
We use the terms “populist” and “establishment” to reference two camps in the debate over
the role of antitrust. We generally group into the populist camp commentators who are both
critical of current antitrust enforcement and who either expressly or implicitly claim to reject the
consumer welfare standard or embrace considerations beyond consumer welfare in discussing
proposals for antitrust reform. We generally group into the “establishment” camp commentators
who endorse consumer welfare as the appropriate antitrust benchmark. These labels are necessa-
rily imprecise; indeed, identifying the areas of actual philosophical overlap between the two
camps is an important focus of this article.
3
See infra Part I.D.
2020] W
HAT
A
RE
W
E
A
CTUALLY
D
EBATING
? 395
Although proposals in the second category gain headlines, on close examina-
tion many of the antitrust populists’ proposals fall in the first category. These
proposals critique existing antitrust standards and presumptions but ultimately
propose enforcement models that the consumer welfare benchmark can
encompass.
Initially evaluating proposals for consistency with the consumer welfare
standard helps bring clarity to the debate. Mainstream commentators should
recognize that addressing some antitrust-populist proposals requires more than
simply defending the consumer welfare standard. Instead, mainstream com-
mentators must evaluate these proposals on their merits, using the consumer
welfare benchmark. Conversely, populists should recognize that overheated
rhetoric or a shortage of specifics may cause mainstream commentators to
dismiss their proposals too quickly or on grounds unmoored to the proposals’
merits. Populist proposals that truly depart from the consumer welfare stan-
dard would benefit from specificity and a rigorous explanation of why con-
sumer welfare is not up to the job. And if populists would address
concentration of economic power through non-antitrust solutions—e.g., sector
specific regulation—they should clearly distinguish those solutions from an
antitrust approach.
I. THE MODERN-DAY ANTITRUST POPULISM MOVEMENT
A. O
VERVIEW
Both antitrust populists and defenders of the antitrust mainstream give his-
torical accounts of the antitrust laws that support their respective positions.
4
Although we will not retread that ground in detail, a few key principles pro-
vide helpful historical context.
The U.S. antitrust laws were rooted in “populism,” a term that has been
described as “a slippery term with no fixed meaning or ideology.”
5
Populism
has been used to label various ideologies across the political spectrum.
6
At its
core, populism pits the “the people” against the “elites,” portraying “a fierce
conflict between the powerless and the powerful.”
7
4
Compare, e.g., Robert H. Bork, Legislative Intent and the Policy of the Sherman Act, 9 J.L.
& E
CON
. 7 (1966), with Vaughn R. Walker, Moving the Strike Zone: How Judges Sometimes
Make Law, 2012 U. I
LL
. L. R
EV
. 1207, 1215–18 (2012) (arguing that Robert Bork used a “Trojan
Horse” to disguise his own policy preferences as those of the drafters of the Sherman Act).
5
M
ARK
R
OLFE
, T
HE
R
EINVENTION OF
P
OPULIST
R
HETORIC IN THE
D
IGITAL
A
GE
24 (Alan
Finlayson et al. eds., 2016).
6
Id.; see also D. Daniel Sokol, Vertical Mergers and Entrepreneurial Exit, 70 F
LA
. L. R
EV
.
1357, 1358–60 (2018) (discussing backlash against large tech companies that has “attracted sup-
port from left and right wing populist forces”).
7
R
OLFE
, supra note 5, at 25.
