How Chicago Economics Distorts “Consumer Welfare” in Antitrust

AuthorMark Glick
DOI10.1177/0003603X19875038
Published date01 December 2019
Date01 December 2019
Article
How Chicago Economics
Distorts “Consumer Welfare”
in Antitrust
Mark Glick*
Abstract
Since the publication of Robert Bork’s The Antitrust Paradox, lawyers, judges, and many economists have
defended “consumer welfare” (CW) as a standard for decisions about antitrust goals and enforcement
priorities. This article argues that the CW is actually an empty concept and is an inappropriate goal for
antitrust. Judge Bork adopted CW from economics where welfare unambiguously measured utility or
well-being. Welfare economists concede that there is no credible measurable link between price and
output and human well-being. This means that the concept of CW does not legitimate limited antitrust
enforcement nor does it justify the exclusion of other antitrust goals that require more active
enforcement practices. This article contends that antitrust policy is not welfare based at all and, that if
it were, antitrust policy and enforcement would differ significantly from the Chicago School vision.
Without the fiction that economists can establish that in the short run lower price and higher output
measurably increase welfare more than other goals, recent defenses of the CW standard resolve down
to arguments based on unsupported assumptions.
Keywords
consumer welfare, goal of antitrust law, New Brandeis School, Chicago School of Economics
Serious thinking about antitrust goals has been in a deep freeze since the Reagan Revolution. For the
last forty years, the Chicago School’s limited antitrust approach based on the consumer welfare (CW)
standard has dominated the antitrust policy debate. Now, suddenly, winds of change are blowing.
1
The
“New Brandeis School” seeks to replace questionable Chicago School assumptions in order to reshape
and renovate antitrust enforcement in the United States. As prominent neo-Brandeisian Lina Khan
*Department of Economics, University of Utah, Salt Lake City, UT, USA
Corresponding Author:
Mark Glick, Department of Economics, University of Utah, 201 Presidents Circle, Room 201, Salt Lake City, UT 84112, USA.
Email: glick@economics.utah.edu
1. See Sandeep Vaheesan, The Profound Nonsense of Consumer Welfare Antitrust (forthcoming) (this journal issue) (discussing
the disconnect between consumer welfare and legislative intent of the antitrust laws, and a distorted view of the relationship
between markets and the law, as well as incorrect assumptions about business conduct. None of these issues are addressed by
this paper).
The Antitrust Bulletin
2019, Vol. 64(4) 495-513
ªThe Author(s) 2019
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DOI: 10.1177/0003603X19875038
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describes, “Sometimes called the New Brandeis School, this group signals a break with the Chicago
School, whose ideas set antitrust on a radic ally new course starting in the 1970s and 1980s a nd
continue to underpin competition policy in the USA today.”
2
In an earlier paper published in the
Antitrust Bulletin, I defended the New Brandeis project by showing that CW is not an operational
concept.
3
From its inception, welfare economists and the founders of welfare economic theory
acknowledged that economic performance could not be linked to measures of human well-being, or
welfare, in a rigorous way. As a result, when output increases, or prices fall, one cannot conclude
much, if anything, about the impact on human well-being. Only in a situation where there are no losers
can we reliably conclude that welfare has increased, and even in that case, it is not possible to prove
that a welfare increase is more than trivial. In any case, antitrust enforcement never involves unan-
imous agreement between the parties, which is what would be required to eliminate any losers. In that
earlier paper, I also described how supporters of limited antitrust enforcement use CW to imply that
their views are more “scientific” because they are supported by a deeper theory of welfare developed
by economists.
This article carries the argument a step further, by showing that the concept of CW cannot
reliably guide policy and that antitrust practice in fact does not employ a concept of welfare.
Antitrust law instead developed, and proceeds, based on nonwelfare considerations. However,
since Judge Robert Bork’s introduction of the CW goal into antitrust, the economics field has
made great strides in the understanding of human well-being. Applying this new evidence sug-
gests that the goals advanced by the New Brandeis School would have a greater welfare increas-
ing impact than the Chicago School approach. Once the veil of assumptions behind the concept of
CW is lifted, recent defenses of the CW standard boil down to an appeal for limited antitrust
activity without any principled basis. There is no theoretical or empirical research in economics
that compels the restriction of antitrust enforcement as advocated by defenders of CW. Accord-
ingly, antitrust policy should be based on empirical analysis and historical fact, not ideology or
fear of disrupting existing orthodoxy.
I. The Founders of the Theory of Economic Welfare and Leading
Theorists in the Economic Welfare Field Recognized the Limitations
of Economic Welfare and These Limitations Make Welfare Theory
Inapplicable to Antitrust Applications
In an earlier paper, I retraced how leading theorists in welfare economics concluded that economists
cannot render policy guidance on welfare grounds without employing heroic and unreliable
2. Lina Khan, The New Brandeis Movement: America’s Antimonopoly Debate,9J.EUR.COMP. L. 131, 132 (2018) (“The
Chicago School focus on ‘consumer welfare’...has warped American’s antimonopoly regime, by leading both enforcers and
courts to focus mainly on promoting ‘efficiency’ on the theory that this will result in low prices for consumers. The fixation
on efficiency, in turn, has largely blinded enforcers to many of the harms caused by undue market power, including on
workers, suppliers, innovators, and independent entrepreneurs – all harms that Congress intended for the antitrust laws to
prevent.”); Marshall Steinbaum & Maurice Stucke, The Effective Competition Standard: A New Standard for Antitrust,
Roosevelt Institute (2018) at 1 (“This market power imbalance is due, in large part, to lax antitrust law and enforcement. The
Federal Trade Commission and Department of Justice are intended to monitor and prevent monopolies with market power
from forming ‘in their incipiency’. But of late, they have failed. This is due to the consumer welfare standard, which identifies
and judges harm to competition only by its potential effects on consumers-and rarely with respect to anything other than
prices.”); See also Lina Khan & Sandeep Vaheesan, Market Power and Inequality: The Antitrust Counterrevolution and Its
Discontents,11H
ARVARD LAW POLICY REV. 235, 237 (2017); Daniel Crane, Antitrust’s Unconventional Politics,VA. L.R.
ONLINE (forthcoming) at 8; TIM WU,THE CURSE OF BIGNESS:ANTITRUST IN THE NEW GILDED AGE 88, 135 (2018).
3. Mark Glick, The Unsound Theory Behind the Consumer (and Total) Welfare Goal in Antitrust,63A
NTITRUST BULL. 455
(2018).
496 The Antitrust Bulletin 64(4)

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