Resurrecting the Incipiency Doctrine Recreates the Problem it was Designed to Solve

Antitrust enforcement relies on economic analysis to determine the likelihood that actions will conflict with existing law. The consumer welfare standard (“CWS”) provides a concrete focus for such analysis and has served as a strong component of antitrust law for over five decades. Currently, antitrust agencies seek to move away from this standard in the pursuit of more expansive enforcement. Unfortunately, tools used as an alternative to the CWS, such as the incipiency doctrine (“ID”),