Paradigm or Paradox: Canada's Competition Law Regime in the New Age of Populism

Abstract

The consumer welfare consensus that has operated as the guiding principle of modern competition policy is under attack in the United States and in Europe. The Neo-Brandeisian movement in the United States seeks to expand the socio-economic objectives of competition law and revert to presumptive analyses focused on market structures rather than market outcomes. Certain European governments are seeking to amend European Union merger control legislation to enable Europe to develop national champions for the globalized economy. In both cases, such reforms would undermine the regulatory predictability and transparency that is the touchpoint of competition policy grounded in the pursuit of consumer welfare. This article examines the significance of these developments from a comparative perspective and assesses what the rise of this antitrust populism means for Canada. In this context, the Canadian Competition Act—which features a compromise between the ideological purity of the consumer welfare standard and the pursuit of other socio-economic policy objectives—has the potential to be a paradigm in modern competition enforcement. Those reflecting on competition policy in the United States and in the EU may draw some useful lessons from the way in which the Canadian compromise in policy objectives does not undermine the predictability of its regime.