THE CONSUMER-WELFARE STANDARD SHOULD CEASE TO BE THE NORTH STAR OF ANTITRUST
By William Markham1
In this article, I argue that federal antitrust law has been undermined by the consumer-welfare standard and related doctrines, and in direct consequence it has failed to accomplish its intended purposes and failed even according to the very narrow, myopic standards of consumer-welfare jurisprudence. To restore antitrust law, so that it will sufficiently protect and promote competitive markets and curtail monopolistic and anticompetitive practices, it is not necessary to adopt new doctrines or standards, but only to revive and faithfully observe the classical common-law prohibitions against restraint of trade and unauthorized monopolies. Senator Klobuchar’s bill now pending in the Senate appears to accomplish this very result and thus seems to be the kind of reform that would redress the systematic under-enforcement of federal antitrust law during the consumer-welfare era.