When Antitrust is Weaponized – Econlib

After a year dominated by historically high inflation and soaring home loan rates, 2023 is carving another negative as the annum of antitrust accusations. From lawsuits targeting Amazon and Google to the emergence of concerns over trading card and sandwich shop monopolies,  the growing antitrust frenzy poses a threat to what these laws were originally crafted to safeguard: consumers.

Actions of antitrust’s biggest modern advocates, like the Federal Trade Commission’s Chair Lina Kahn and U.S. Sen. Elizabeth Warren, reveal their misunderstanding of these competition laws. To maintain their protected freedoms to buy, sell, and trade, consumers and businesses must know the truth enshrined in these laws and not be duped by misrepresentation. 

Antitrust laws were enacted with a noble purpose—to protect consumers and promote fair competition. These laws were designed to ensure consumer access to various choices across the marketplace and prohibit businesses from engaging in anti-competitive practices. If those parameters seem vague, that’s because they are. That is, without antitrust’s crucial cornerstone, “the consumer welfare standard” established in the 1970s to help narrow the law’s scope.  

A principle that assesses whether consumers are better or worse off due to a company’s actions, the consumer welfare standard is mathematically defined as “the value consumers get from the product less the price they paid.” The addition of this language shifted antitrust’s emphasis from preserving competitors to competition. But perceived value varies between individuals.

Concerns about monopolies can be legitimate when there is concern about diminished value from a product or service because of a company’s actions. Such monopolistic behavior may result in higher prices and lower quality. These tactics are most likely to prevail when outside competition is intentionally stifled by the government through regulations, spending, and corporate welfare.

However, having a large or growing market share alone does not violate antitrust laws, as progressives like Warren would lead people to believe. In a healthy competitive market, companies naturally strive to develop and acquire other businesses to expand their offerings and meet consumer demands.

Roark Capital’s acquisition of Subway, adding the sandwich chain to its portfolio, and major sports leagues signing contracts with trading card company Fanatics may seem like consolidation of power, but these changes do not inherently harm consumers or competition. In fact, if permitted to expand via purchasing and agreements with other companies or leagues, not just these but all businesses can improve consumer welfare and profitability. 

To the chagrin of its Italian competitor, the NFL, MLB, and NBA making agreements with the sports trading card company Fanatics was a voluntary decision executed because increased, not diminished, consumer welfare was perceived. While Panini SpA points the antitrust finger at Fanatics, it has three other fingers pointing back at itself, as the company has its own agreements with the NFL and NBA. 

Rather than viewing the new competition as an opportunity to improve its company and become the first choice, Panini SpA would rather waste time and resources trying to punish its competitor. This is what the FTC will try to do with Subway, the European Union wants to do with Amazon, and the DOJ has tried to do with Google. 

This knowledge is critical because consumers are being swayed to favor legal action that does not serve their best interest, more than likely because of widespread misinformation. 

For instance, a recent poll showed that 60% of Americans believe Google is too big and hurts businesses and consumers. However, conflicting data reveal that, overwhelmingly, Google users and employees derive immense value from its service. At the same time, other search engines continue to increase in popularity alongside Google, with Safari recently reaching more than one billion users. So, if the majority of Google users are happy with the service and other search engine options exist, the welfare of its consumers is far from threatened. But that hasn’t stopped the FTC from trying to take them down.

So-called “big tech giants” and “trading card monopolies” aren’t the true titans threatening consumer welfare; it’s the rent-seeking politicians, government bureaucrats, and corporate rent-seekers wielding an insatiable appetite for control that are consumers’ actual adversaries. 

Vance Ginn, Ph.D., is the president of Ginn Economic Consulting, chief economist of the Pelican Institute for Public Policy, and was previously the associate director for economic policy of the White House’s Office of Management and Budget, 2019-20. Follow him on X.com at @VanceGinn.