The Multiple Goals of Antitrust

• Date: 01 December 2018
• Published date: 01 December 2018
• DOI: 10.1177/0003603X18807808

Article
The Antitrust Bulletin
2018, Vol. 63(4) 494-508
The Multiple Goals of Antitrust
ª The Author(s) 2018
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DOI: 10.1177/0003603X18807808
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Albert Allen Foer* and Arthur Durst**
Abstract
This article proceeds by briefly describing the origins and transformation of the consumer welfare
model, arguing that as a designated exclusive goal for antitrust, it is both confusing and incomplete. The
discussion then turns to fundamental questions about what we want from our political economy
generally and from antitrust more specifically, demonstrating that the answers are not well captured by
the “consumer welfare” rubric. In fact, there are multiple economic, political, cultural, and historic
values at work, and there are significant shortcomings if we try to make any one economic value the
singular lodestar. At the same time, holding that there are multiple goals also has important short-
comings. We offer an alternative way of conceptualizing the question of goals, in which the primary
objective of antitrust and competition policy is to promote and protect a political economy that
provides the society’s best mixture of competition and cooperation, given its culture, history, tech-
nology, and political situation at a given period of time.
Keywords
competition, cooperation, values, goals, multiple goals, consumer welfare, efficiency, dynamic efficiency
I. Introduction
The antitrust conversation has been circling around the question of goals for years, but the debate has
become more politicized and intense since the last presidential election.1 In particular, more broadly
than at any time in the past generation, the very purposes of antitrust are being reevaluated. This
reevaluation comes in the light of the “Too Big to Fail” banking crisis;2 the rise of extremely large
high-tech platform-based firms and unprecedentedly powerful buyers such as Walmart and Amazon,
1. See Sandeep Vahessan, The Twilight of the Technocrats Monopoly on Antitrust, 127 YALE L. J. F. 980 (2018), http://www
.yalelawjournal.org/forum/the-twilight-of-the-technocrats-monopoly-on-antitrust. See generally Carl Schapiro, Antitrust in a
Time of Populism, INT’L J. INDUS. ORG. (forthcoming 2018), http://awards.concurrences.com/IMG/pdf/ssrn-id3058345_1_.pdf
(“Antitrust is sexy again.”).
2. Albert A. Foer & Don Allen Resnikoff, Competition Policy and “Too Big” Banks in the European Union and the United
States, 59 ANTITRUST BULL. 9 (2014), available at https://www.antitrustinstitute.org/sites/default/files/ATB%
2059%2002%20Foer%20&%20Resenikof_ATB%2001%20Nguyen%20(1)%20(1).pdf.
*Senior Fellow of the American Antitrust Institute, Washington, D.C., USA
**Assistant Attorney General at the Office of the Attorney General for the District of Columbia, Washington, D.C., USA
Corresponding Author:
Albert Allen Foer, American Antitrust Institute, 2919 Ellicott St. NW, Washington, D.C., USA.
Email: bert.foer@gmail.com

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Foer and Durst
495
and increasing awareness of the limitations of current antitrust law to reach these institutional volca-
noes; relatively new concerns involving privacy and big data, whose impact on competition is only
now coming into focus;3 the growing importance of international competition authorities recognizing
multiple goals;4 the Trump administration’s apparent and potentially unique combination of neopopu-
list rhetoric about specific large companies, skepticism of expertise, and extreme laissez faire attitudes
toward regulation; widening economic inequality; and the perception that for too many people, our
capitalist economy, of which antitrust is a fundamental part, is not working well. All of this has had an
impact on the public’s faith in the economic profession and, for some, even capitalism itself.5
Since the election of President Ronald Reagan, the dominant theoretical force in U.S. antitrust has been
the Chicago School of Law and Economics, with its emphasis on microeconomics, efficiency, and what
has come to be called “consumer welfare” antitrust. We believe that conversation about the goal or goals of
antitrust must reflect the fact that the Chicago paradigm has been severely criticized and indeed has
changed in certain respects over time, but its shorthand model continues to reign, with much of the
judiciary and the public believing that “consumer welfare” is a meaningful objective. We will argue that
a single-minded objective for antitrust should be replaced by recognition that there are multiple objectives.
In our view, antitrust should “be [about the] promotion and protection of a system that provides the
society’s best mixture of competition and cooperation, given its culture, history, technology, and political
situation at a given period of time.”6 We agree with Robert Pitofsky, as he put it nearly forty years ago:
“despite the inconvenience, lack of predictability, and general mess introduced into the economists’
allegedly cohesive and tidy world of exclusively micro-economic analysis, an antitrust policy that failed
to take political concerns into account would be unresponsive to the will of Congress and out of touch
with the rough political consensus that has supported antitrust enforcement for almost a century.”7
This article proceeds by briefly describing the origins and transformation of the consumer welfare
model, arguing that as a designated exclusive goal for antitrust, it is both confusing and incomplete.
The discussion then turns to fundamental questions about what we want from our political economy
generally and from antitrust more specifically, demonstrating that the answers are not well captured by
the “consumer welfare” rubric. In fact, there are multiple economic, political, cultural, and historic
values at work, and there are significant shortcomings if we try to make any one economic value the
singular lodestar. At the same time, holding that there are multiple goals also has important short-
comings. We offer an alternative way of conceptualizing the question of goals and also suggest some
possible implications for reform.
II. What Is Consumer Welfare?
Consumer welfare is a relatively new term in our country’s century-and-a-quarter history of antitrust. It
seems to have emerged from the writings of Robert Bork in the mid-1970s. Some would argue that the
3. See, e.g., Matthew Ingram, Google and Facebook Account for Nearly All Growth in Digital Ads, FORTUNE (April 26, 2017),
http://fortune.com/2017/04/26/google-facebook-digital-ads/.
4. INT’L COMPETITION NETWORK, COMPETITION ENFORCEMENT AND CONSUMER WELFARE—SETTING THE AGENDA 4–6 (2011).
5. See John Lanchester, After the Fall, LONDON REV. BOOKS (July 5, 2018), https://www.lrb.co.uk/v40/n13/john-lanchester/after-
the-fall (describing the intellectual overconfidence within macroeconomics that was a cause of the financial crisis, and the
subsequent political fallout that continues today, including a new skepticism of capitalism); Hal Singer (@HalSinger),
TWITTER (Aug. 5, 2018, 3:09 PM), https://twitter.com/HalSinger/status/1026183325613019143 (Conservatives who think
rampant income inequality, declining real wages/wage shares, and three platforms running away with the digital economy
will be tolerated democratically are delusional. In sum, the choice for conservatives is really *some* antitrust—and a
capitalism that operates within guardrails—or socialism.”).
6. Albert A. Foer, The Goals of Antitrust: Thoughts on Consumer Welfare in the US, in HANDBOOK OF RESEARCH IN TRANS-
ATLANTIC ANTITRUST 566 (Phillip Marsden ed., 2007).
7. Robert Pitofsky, The Political Content of Antitrust, 127 U. PENN. L.R. 1051, 1052 (1979).

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The Antitrust Bulletin 63(4)
concept of consumer welfare has been embedded in antitrust all along,8 but Eleanor Fox, among others,
has at shown that it arose as a tool to rein in activist antitrust when the Reagan administration took
power.9 This intentionally constraining concept has persisted to the present, and is now part of main-
stream antitrust.
Whether consumer welfare should be the exclusive goal of antitrust has been debated at length.10
Part of what makes the debate difficult is that the term does not have a strict definition.11 Who is or is
not a consumer? What constitutes welfare? These are not questions with obvious or singular answers.
When the Antitrust Modernization Commission adopted consumer welfare as the goal of antitrust in
2007, it actually failed to provide a definition.12 A conservative definition, as Robert Bork intended the
term, equates consumer welfare to the economic concept of total welfare.13 A more liberal definition of
consumer welfare tends to equate the term with the concept of competitive process.14 A third definition
equates consumer welfare with the economic concept of consumer surplus.
8. Dylan Matthews, Antitrust Was Defined by Robert Bork. I Cannot Overstate His Influence, WASH. POST. (Dec. 20, 2012)
(discussing with law professor Barak Orbach the impact of Robert Bork, including his creation consumer welfare), https://
www.washingtonpost.com/news/wonk/wp/2012/12/20/antitrust-was-defined-by-robert-bork-i-cannot-overstate-his-
influence/?utm_term¼.efdb30bbda5e.
9. Eleanor Fox, Against Goals, 81 FORDHAM L. REV. 2157 (2013) (“From the early 1980s forward, U.S. antitrust law developed
under a model that is euphemistically called ‘maximizing consumer welfare.’ But in an important sense, this modern goal is
not to maximize consumer welfare even if consumer surplus is the sole focus. U.S....