Business Ethics: A New Tool for the FTC's New Section 5 Policy

24 Wake Forest J. Bus. & Intell. Prop. L. 102.

The decline in antitrust enforcement over the last half century has not gone unnoticed.  It has been blamed for numerous economic ills of the United States, including the decline of Midwestern cities, the stagnation of wages, rising inequality, and a loss of innovation.  Not surprisingly, some have called for a reinvigoration of antitrust enforcement.  

Reliance on the so-called “consumer welfare standard” as the exclusive tool for identification antitrust violations may have contributed to the decline by focusing on the effect that business conduct had on price and output rather than on competition itself.  Last year, the Federal Trade Commission issued a new Policy Statement making it clear that the agency would no longer rely exclusively on the consumer welfare standard.  To reinvigorate antitrust, the consumer welfare standard needs to be supplemented with alternative understandings of business competition.  

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