The purpose and goals of United States antitrust policy have not remained static over time. Since 1979, the Supreme Court has focused on a “consumer welfare” theory of antitrust law. See Reiter v. Sonotone Corp., 442 U.S. 330, 343 (1979) (The floor debates “suggest that Congress designed the Sherman Act as a ‘consumer welfare prescription.’” (citation omitted)). Under the consumer welfare standard, an act is deemed anticompetitive “only when it harms both allocative efficiency and raises the prices of goods above competitive levels or diminishes their quality,” Rebel Oil Co. v. Atlantic Richfield Co., 51 F.3d 1421, 1433 (9th Cir. 1995); whether an action or policy is found to be anticompetitive depends ultimately on whether consumers pay higher prices. The consumer welfare theory has the advantage of focusing on the impact to consumers through the application of economic theory, but doesn’t always have much to say about firms that occupy a dominant position in an industry while continuing to provide services to consumers cheaply (or without any fee at all)—a hallmark of many modern tech companies.

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But Douglas Melamed, a professor at Stanford Law School, suggested that while antitrust law could be improved, it is “sound in principle” and “should be adjusted, if at all, only after careful study and only at the margins.” According to Melamed, “antitrust is not ultimately about dispersing power[;] [i]t is about economic welfare.” He did, however, suggest rethinking the notion that “false positives – mistaken determinations that conduct or transaction in question was anticompetitive – are more serious than false negatives – mistaken determinations that the conduct or transaction was not anticompetitive.” Melamed opined that “[h]orizontal mergers,” in particular, might be a sound area to consider “adjusting the legal standards for merger enforcement[.]”