Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Increasing role of economics in antitrust analysis discussed by Commissioner Wright, (Apr 16, 2015)

By Jeffrey May, J.D.

Speaking today at the American Bar Association Section of Antitrust Law Spring Meeting in Washington, D.C., FTC Commissioner Joshua D. Wright observed that the lodestar of the antitrust laws is consumer welfare. However, the Commissioner questioned whether the federal antitrust agencies actually apply a consumer welfare standard when reaching some consent decrees. While there might be debate about the appropriate welfare standard that should be applied and what factors should be included, Wright questioned if the FTC and Department of Justice Antitrust Division applied any standard at all in reaching certain settlements. He did not, however, go so far as to name those cases.

A Ph.D. economist, Wright was a panelist on the Chair's Showcase, entitled “Rethinking Antitrust Economics for The 21st Century.” Noting advances in antitrust analysis over the 20th Century, he stressed the importance of focusing on consumer welfare in pursuing enforcement actions, and he advised against moving away from economic concepts.

“Antitrust law does not do well when it serves multiple masters,” said Wright. “The experiment to serve multiple masters has not gone well,” he added. For instance, Wright advised against injecting economic inequality into the equation, suggesting that this would result in a regression in the recent advances in antitrust analysis.

Wright defended the use economic tools at the antitrust agencies. He said that he has observed “healthy” discussions among the members of the staff of the FTC about the use of these tools. The tools illuminate the analysis, Wright noted. The staff is not recommending an action based simply on an economic model.

Wright also addressed the perceived rise in economic complexity in antitrust. To the extent that there is increasing economic complexity, Wright suggested it was a positive development, as the field experiences some “growing pains.” He did, however, recommend that economists get better at telling a story to cut through the complexity.

News: Antitrust FederalTradeCommissionNews