Consumer Welfare and the Legacy of Robert Bork

Writing 35 years ago in The Antitrust Paradox, Robert Bork observed, “Antitrust policy cannot be made rational until we are able to give a firm answer to one question: What is the point of the law—what are its goals?” Bork proposed what he called a consumer-welfare standard, though it is what we today call a total-welfare standard. Interestingly, many of the arguments Bork offered in defense of the latter apply also to the former. Bork defended his proposed standard less on the support that it finds in economics and more on his reading of legislative intent. Although Bork’s antitrust analysis drew largely on basic microeconomic theory, he believed that economists and courts were incapable of estimating competitive effects. He therefore favored bright-line rules for, particularly, proposed mergers. Whatever else one thinks of Bork, on the critical question of antitrust’s fundamental purpose, his views have in large measure prevailed