Hipster Antitrust Meets Public Choice Economics: The Consumer Welfare Standard, Rule Of Law, And Rent-Seeking

Hipster Antitrust calls for the rejection of the consumer welfare standard as the lodestar of antitrust law in favor of a vague “public interest” test that requires courts and agencies to consider a variety of social and political goals. In short, Hipster Antitrust seeks to dismantle the well-defined, economics-based approach to antitrust. It does so while attacking corporate America generally and with rhetorical flourish that nostalgically yearns for a return to the trustbusting days of antitrust’s infancy. A primary theme of Hipster Antitrust is concern with regulatory capture and oversized corporate influence on market outcomes. We share those concerns. Yet, ironically, by expanding enforcers’ discretion and removing institutional safeguards ensuring accountability, Hipster Antitrust would usher in a new era of rent-seeking by corporations hoping to misuse antitrust to gain advantages over competitors. In doing so, Hipster Antitrust ignores the lessons of public choice theory and trades the current antitrust regime, which promotes consumer welfare, for one that benefits businesses and maximizes corporate welfare.