There exists a risk of standards-setting organizations (SSO's) becoming improper surrogates for the marketplace by attempting to choose between two or more competing standards supported entities that are or aspire to be competitors in the relevant market. While the theory of most SSO's is that they make neutral, technologically sound decisions, the reality is often far different. Instead, competitors predictably bring their competition into the SSO setting, seeking the market advantages that winning a standard achieves. The technocrats involved in the standards-setting cannot help but be affected. The solution lies not in regulation, antitrust rule, or purported mandates from the SSO, but in mounting an SSO process that defers to the market, avoiding standards-setting where the market has yet to settle on a choice or, when the market remains unsettled, structuring standards that avoid foreclosing competition among competing technologies or assisting one over the other.
Nimmer, Raymond T., Technical Standards Setting Organizations & Competition:
A Case for Deference to Markets (September 14, 2009). Available at SSRN: http://ssrn.com/abstract=1473431 or http://dx.doi.org/10.2139/ssrn.1473431