Antitrust exists in an interdisciplinary landscape that includes law and economic analysis. This creates tension between regulators’ attempts to develop predictable bright-line rules for anticompetitive behavior and the more difficult task of using economic analysis so that enforcement reflects the competitive business environment. The consumer welfare standard (“CWS”) creates a single measurement to judge potential outcomes and balance current legal requirements
More expansive antitrust enforcement proponents hope to move away from this doctrine in today’s antitrust landscape. Part of the justification for this comes from what is known as the incipiency doctrine (“ID”).
Referencing the ID does nothing to counteract the roughly five decades that antitrust has been interpreted through the lens of the CWS. The CWS provides a clear definition of harm that can be measured through economic analysis. Returning to the ID and abandoning the CWS, without finding a viable replacement, risks untethering antitrust enforcement from reason entirely.
Read the full CPI article here.