Wither Consumer Welfare? Antitrust in the Biden Years
- Author(s):
- Douglas H. Ginsburg
- Posted:
- 07-2025
- Law & Economics #:
- 25-08
- Availability:
- Full text (most recent) on SSRN
ABSTRACT:
The consumer welfare standard has been the lodestar of antitrust policy for more than four decades, ensuring predictable decision making by the Government’s antitrust agencies and the courts. From the beginning of his term, however, President Biden and his administration signaled their intent to embark on a different and more aggressive approach to antitrust policy. The FTC and the Antitrust Division of the DOJ proceeded to issue many new guidelines and policy statements, and to pursue novel theories in merger enforcement actions and civil litigation. The FTC also issued a substantive competition rule for the first time in decades, and significantly increased the information required to be submitted by firms seeking approval of a merger. The agencies deemphasized consumer welfare and economic analysis more generally, instead elevating the importance of market structure and other populist goals such as the preservation of small businesses. This, in turn, diminished the agencies’ persuasiveness in court, where they lost half of their merger cases. The most effective parts of the Biden administration’s agenda were those that aligned most closely with traditional economic principles, particularly in monopolization cases. The lesson to be drawn is that antitrust enforcement still is most successful and best preserves competition when it is guided by economic principles — in particular, the consumer welfare standard — rather than other goals.