The 2024 National Lawyers Convention featured a panel on the Future of Antitrust which offered a wide-ranging exploration of the consumer welfare standard and how its usefulness as a guidepost in antitrust law may evolve in future administrations. Panelists, including experts from the Senate and House Judiciary Committees, the Department of Justice (DOJ), the Federal Trade Commission (FTC), and in private practice, engaged in a lively discussion on the current state of antitrust enforcement, exploring trends, challenges, and likely developments for the near future. The panel was moderated by Judge Jennifer Walker Elrod of the United States Court of Appeals for the Fifth Circuit.
While antitrust law has focused historically on consumer harm—measured largely by price and quality effects—recent government enforcers and some private plaintiffs have argued that competition itself must instead be prioritized as the focus for protection. These critics argue that the consumer welfare standard fails to adequately address broader market dynamics and the role of non-economic factors, such as social and political consequences, in shaping competition. Chris Mufarrige, Chief of Staff and Attorney Advisor to FTC Commissioner Holyoak, contested these criticisms as misstatements of antitrust law and asserted that a misguided understanding of antitrust would lead to misguided antitrust enforcement.
The Biden administration’s approach to antitrust enforcement was a point of contention. While the agencies have made more efficient use of appropriated resources in pursuing enforcement actions, panelists discussed the lack of transparency and predictability for parties that go before the agencies. Some panelists posited that the recent revocation of public-facing enforcement guidelines and uncertainty of which agency’s standards a merger will be subject to contribute to a precarious regulatory environment. While Deputy Assistant Attorney General Michael Kades voiced that the agencies can be best understood via their enforcement actions, other panelists such as Alexander Okuliar countered by emphasizing that many companies considering mergers and capital allocation decisions pay close attention to agency rhetoric. Okuliar continued that while the law has remained the same, agency rhetoric has signaled a move away from the conventional consumer welfare standard and towards a Brussels-style regulatory approach that blends consumer protection and industrial policy into antitrust. Mufarrige highlighted that FTC actions to combat alleged unfair discrimination expand its authority over otherwise legitimate business practices under antitrust law.
The panelists touched on the significant challenges facing the government in responding to the rapidly evolving landscape of artificial intelligence. In light of the fluid and dynamic tech landscape, the panelists emphasized the need for a cohesive regulatory approach that prevents harmful monopolistic behavior without stifling innovation. Panelist Adam Cella, Chief Counsel for the House Judiciary Subcommittee on Antitrust, pointed out the current fragmented approach by the FTC and DOJ in regulating AI and splitting investigations into large technology providers would delay the development of needed expertise within the agencies. The current split between the FTC and DOJ means that investigation efforts into similar issues are being duplicated, slowing overall progress.
Throughout the discussion, the importance of economic analysis and clear legal principles was emphasized. The use of qualitative evidence in antitrust cases, such as company statements or testimonies, has become more common, especially in cases where traditional economic data may be inconclusive. The panelists debated whether relying on economic models alone was effective, and whether economic or qualitative evidence reflects market dynamics or simply serves to bolster regulatory objectives. Thomas DeMatteo, Chief Competition Counsel to Senator Mike Lee, argued that the consumer welfare standard is useful as a coherent principle to focus on for deal and conduct review because of how infrequently merger challenges go the Supreme Court and establish guiding precedent.
Panelists agreed that the antitrust enforcement landscape in the United States has changed dramatically since 2016, with a significant uptick in activity under novel theories particularly under the Biden administration. Michael Kades pointed out that in his years of practice with the agencies, merger enforcement strategy tended towards less frequent but indisputable challenges. This shift towards more aggressive enforcement, however, does not imply the abandonment of the consumer welfare standard. Adam Cella pointed out that congressional focus on issues like advertiser boycotts on social media platforms and the impact of ESG on energy production demonstrates a sustained emphasis on consumer harm as a key theory of harm.
As the discussion wrapped up, the panelists underscored that while the landscape of antitrust enforcement continues to evolve, the future of the consumer welfare standard remains a central point of debate. Continued revisions to the merger guidelines, the Hart-Scott-Rodino premerger filing requirements, and the shift in agency rhetoric suggest that the coming years will continue to see intense debate on how antitrust law will respond to market realities and modern pressures.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].