An Economic Perspective on Balancing Unquantified Harms and Benefits Under the Consumer Welfare Standard

Abstract

Judge Ginsburg’s address on how to balance unquantified benefits and harms under the consumer welfare standard highlights two distinct roles for qualitative assessment. The first is the role of qualitative evidence in antitrust analyses. The second is the consideration of both price and non-price effects. While these two topics are related—e.g., analysis of non-price competitive effects often relies on qualitative evidence—they raise distinct issues. We provide an economic perspective on these topics as a complement to Judge Ginsburg’s learned legal commentary. Specifically, we explain the central role that sound qualitative evidence traditionally and properly plays in the economic analysis of both price and non-price effects of mergers and accused conduct. We also discuss the state of economic analysis when a broad economic interpretation of the consumer welfare standard would require balancing the welfare of one group against another.