Consumer Welfare Standard: Friend or Foe? 

For decades, the Consumer Welfare Standard (CWS) has been a reliable tool for evaluating the competitive effects of market structures and firm conduct. In assessing the competitive significance of behavior by firms, the courts have been influenced by effects on consumer welfare. If consumer welfare increases or stays the same, antitrust treatment towards the market structure or firm is benign. By contrast, if consumer welfare decreases as a result of firm conduct or market structure, the antitrust treatment is far more hostile. The CWS relies on changes in consumer welfare to identify antitrust problems. Recently, the CWS has come under attack from the Neo-Brandeis school of antitrust thought, which seeks to undermine or eradicate the CWS. Neo-Brandeis thought takes issue with aggregate assessments of consumer welfare performed in antitrust economics, instead advocating for methods such as “community” welfare. The Neo-Brandeis school, which criticizes the CWS, represents a larger trend in antitrust economics that encourages an enforcement pattern based on non-economic factors. Neo-Brandeis thought primarily aims to break up large companies, and often preferentially treats companies with unions, certain wage practices, and more. Applied to antitrust economics, this threatens consistency in defending competition. Their precise methods are inconsistent, leaving antitrust enforcement without a standard of evaluation.