The alternative to consumer-welfare maximization is the view that antitrust law is simply one more tool of industrial policy, and thus its application may permissibly compromise consumer welfare to advance the welfare of competitors. Other nations evidently consider this normative proposition to be appropriate, if recent developments in the European Union are a valid indication. More than ever before, the United States and Europe appear to be at a fork in the road over whether the law of monopolization exists to protect consumers or to ensure that a specified number of firms will profitably populate a market. The Ninth Circuit’s linkLine decision implicitly chooses the latter path, which leads to the Potemkin village of “managed competition.”
Y, en nota a pie
Some, on both sides of the Atlantic, may argue that Europe is moving closer to consumer-welfare model. One might say that, given the stage of development of European ompetition law, addressing as it does many industries that have been dominated by state-owned or state-granted monopolies, an emphasis at the level of the European Commission on abuse of dominance—as opposed to consumer welfare—has been an expedient, perhaps necessary, means to break down the barriers resulting from member-state competition laws that insulate favored national players that exploit their dominant positions. So, one might argue, as European competition law progresses, an interpretation of abuse of dominance to protect competitors will give way to an American-style interpretation of abuse of dominance to protect consumers. This argument would be more persuasive if the notable targets of recent EC abuse-of-dominance cases were not American multinational corporations doing business in Europe".
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