Antitrust enforcement performs best when it’s grounded in outcomes. Unfortunately antitrust is often used to punish large, politically disfavored companies, rather than actually remedy instances of consumer harm.
The Consumer Welfare Standard is an important principle that prevents and mitigates politicization of antitrust. Courts use the principle as a strong foundation in antitrust cases. It asks a simple question: are consumers being harmed, and will government intervention make consumers better off? The Consumer Welfare Standard requires more than broad allegations, it requires specificity. Remedies are where theory meets reality. Without clearly defined remedies, i.e. what the government is trying to achieve through antitrust enforcement, neither courts nor the public can evaluate whether a case for government intervention will actually help consumers, or inadvertently harm them.
Unfortunately, the FTC’s antitrust lawsuit against Amazon is failing to live up to these standards. After almost a decade of investigations by the FTC, the agency has failed to outline what its preferred outcome—its remedies—are. Instead, they have raised a number of “concerns,” asked many prying questions, and demanded a huge amount of private information from Amazon to continue their investigations. And yet, they still can’t say what they’re actually trying to accomplish.
Thankfully, Judge John Chun recently ruled that the FTC must identify “each and every remedy” it is seeking, bringing long-overdue transparency to the major and long-running antitrust case.
The FTC cannot continue to run around engaging in the Nirvana fallacy, pitting theoretical hopes of something perfect against something that is already pretty good for consumers. But in its case against Amazon, the FTC hasn’t even done that. The unelected bureaucrats haven’t even bothered to tell us how they’ll magically do it better than the business people who face consumers every day.
The FTC’s reluctance to articulate its desired remedies raises serious concerns. After years of investigation, regulators should be able to clearly explain what outcome they are pursuing and how it would benefit consumers. If they cannot, it suggests either a lack of a coherent endgame or an unwillingness to defend the real-world consequences of their proposals. Rather, the FTC just seems hellbent on slaying something big for the sake of it. Someone call Don Quixote.
While there may be political benefits to regulators for recklessly tilting at big moving things, the consequences of such antitrust adventurism matter for consumers. Many of the remedies reportedly under consideration would directly interfere with the systems that enable lower prices and fast delivery. Separating Amazon’s logistics network from its retail operations, for example, would introduce new coordination costs, duplicate infrastructure, and slow delivery times, costs that would ultimately be passed on to consumers. Likewise, restricting integration between first-party and third-party sales risks reducing marketplace efficiency, limiting product availability, and weakening the ecosystem that small businesses rely on to reach customers nationwide.
Nearly 60% of sales on Amazon come from independent sellers, many of whom depend on its integrated logistics and marketplace tools to compete with larger retailers. Disrupting that model would not just affect a large company, it would ripple across millions of small businesses and the customers they serve.
At a time when Americans remain focused on affordability, pursuing remedies that risk raising prices and degrading services demands clear justification beyond a new big game hunting trophy to hang in the halls of the FTC. Courts routinely require plaintiffs to specify remedies to ensure that litigation remains grounded in concrete outcomes rather than open-ended theories of harm. The court has taken an important first step by requiring that clarity here. Hunting for sport won’t be tolerated.
Congress should follow suit. As lawmakers prepare for upcoming oversight hearings, they should demand the same level of specificity: what, exactly, is being proposed, and how will it affect prices, services, and small businesses?
Antitrust enforcement carries real consequences for millions of Americans. Before moving forward, regulators must clearly explain how their case will make consumers better off—not just in theory, but in practice. The court has made that expectation clear. Now it’s time for the agency to meet it.