In the context ofU.S. competition law, theconsumer welfare standard (CWS) orconsumer welfare principle (CWP)[1] is a legal doctrine used to determine the applicability of antitrust enforcement.
Under the consumer welfare standard, acorporate merger is deemedanti-competitive “only when it harms both allocative efficiency and raises the prices of goods above competitive levels or diminishes their quality".[2] This contrasts with earlier frameworks of antitrust theory, and more recently theNew Brandeis movement, which argue that corporate mergers are inherently detrimental to consumers because of the diminishing competition resulting from it.
In other words, the consumer welfare standard does not analyze antitrust issues from a "big is bad"[3] perspective that condemns corporate consolidation as a negative phenomenon in of itself. Instead, the framework stipulates that corporate consolidation is notnecessarily harmful to consumers, as long as a merger (or series of mergers) does not lead to individuals having to pay more for a product or service.
The roots of the consumer welfare standard can be found in the work ofconservative legal scholarRobert Bork, most notably in his 1978 bookThe Antitrust Paradox.[4] The consumer welfare standard gradually replaced therule of reason principle as the dominant legal theory behind antitrust enforcement by the 1980s.
The consumer welfare standard was influenced bymicroeconomic theory and is related to the economic theories of theChicago school of economics.[5] The adoption of the consumer welfare standard by courts and regulatory agencies has been credited with the sharp drop in antitrust enforcement in recent decades.[6]
In the 21st century, antitrust advocates affiliated with the progressive "New Brandeis movement" have called into question the value of the consumer welfare standard. These critics argue that, by emerging as the dominant form of antitrust analysis by courts and regulators, the consumer welfare standard has led to less competition and an increase in the averagemarket share of firms in a given sector.
Many of these critics favor an approach to antitrust enforcement tools to promote ofeconomic equality andlabor rights.[7] During theBiden administration, multiple noted critics of the consumer welfare standard were appointed to federal office. These includeJonathan Kanter,[8] Assistant Attorney General for theDepartment of Justice Antitrust Division, andLina Khan,[9] Chair of theFederal Trade Commission (FTC).
Some conservatives, such asJeff Landry ofLouisiana, have also argued that the consumer welfare standard is insufficient, stating that he believes that "defining any corporate behavior that leads to lower prices for consumers as acceptable is not true to the original intent of antitrust legislation."[10]
In the 2022 bookChokepoint Capitalism, Rebecca Giblin andCory Doctorow argue that the consumer welfare standard has enabled antitrust law to be weaponized against businesses with lessmarket power, includinggig workers andcontent creators, while leaving the power of more dominant entities intact. Since gig workers are generally classified as independent contractors, they are prohibited from engaging incollective bargaining with the platforms that "employ" them, as this constitutes price fixing and diminishes consumer welfare.[11] In January 2025, the FTC issued a policy statement shielding gig workers from antitrust liability when they engage in protected bargaining and organizing activities such as seeking better compensation and job conditions.[12]
This article incorporatespublic domain material from"FTC Issues Policy Statement Clarifying that Independent Contractors, Gig Workers' Organizing Activities Are Shielded from Antitrust Liability".Federal Trade Commission. January 14, 2025. RetrievedOctober 3, 2025.  | This article relating tolaw in the United States or its constituent jurisdictions is astub. You can help Wikipedia byexpanding it. |
