Antitrust's Borderline

22 Pages Posted: 22 Jul 2020 Last revised: 11 Aug 2020

See all articles by Herbert Hovenkamp

Herbert Hovenkamp

University of Pennsylvania Carey Law School; University of Pennsylvania - The Wharton School; University College London

Date Written: August 11, 2020


Antitrust’s consumer welfare principle is accepted in some form by the entire Supreme Court and the majority of other writers. However, it means different things to different people. For example, some members of the Supreme Court can simultaneously acknowledge the antitrust consumer welfare principle even as they approve practices that result in immediate, obvious, and substantial consumer harm. At the same time, however, a properly defined consumer welfare principle is essential if antitrust is to achieve its statutory purpose, which is to pursue practices that injure competition. The wish to make antitrust a more general social justice statute is understandable: it permits people to obtain a result from the judiciary that they cannot get through legislation. Laudable as those goals are, antitrust is not the best vehicle for attaining them.

One thing antitrust enforcers and policy makers can do is agree that while antitrust should be guided by a consumer welfare principle, output rather than price should be the relevant variable. Higher output benefits not only consumers, but also workers and most of the smaller firms that are affected. The consumer welfare principle in antitrust is best understood as pursuing maximum output consistent with sustainable competition.

Keywords: Competition law & policy, antitrust enforcement, labor markets, consumer welfare, microeconomic analysis, marginal cost of production, bigness, Sherman Act, Clayton Act, Oliver Williamson, Robert Bork

JEL Classification: B21, K21, L40, L51

Suggested Citation

Hovenkamp, Herbert, Antitrust's Borderline (August 11, 2020). U of Penn, Inst for Law & Econ Research Paper No. 20-44, Available at SSRN: or

Herbert Hovenkamp (Contact Author)

University of Pennsylvania Carey Law School ( email )

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University of Pennsylvania - The Wharton School ( email )

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University College London ( email )

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