By Barak Orbach
“Consumer welfare” (“CW”) is the stated goal of antitrust law. Among the cognoscenti, the CW standard is a proxy for the transformation of antitrust law over the past four decades and Robert Bork’s deep imprint on antitrust law. In recent years, calls to abandon the CW standard and replace it with an array of fairness values gained traction. This paper summarizes the key findings and conclusions of my study of the CW controversy. The CW standard, I argue, has failed to protect competition effectively because it has multiple meanings and its applications are guided by erroneous premises. These problems should be addressed. The goal of antitrust law, I argue, should align with antitrust’s core task: protecting the competitive process by banning business agreements, practices, and transactions whose adverse effects on trading opportunities unreasonably impair the process.