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Open Access Publications from the University of California

UC Irvine Law Review

UC Irvine

The Antitrust Case for Consumer Primacy in Corporate Governance


Consumers have been left out of the great debate over the mission of the firm, in which advocates of shareholder value maximization face off against advocates of corporate social responsibility, who would allow management leeway to allocate profits to workers and other non-shareholder insiders of the firm. The consumer welfare standard adopted by antitrust law in the 1970s requires that firms allocate their profits neither to shareholders nor to workers or other firm insiders. Instead, the standard requires that firms strive to have no profits at all, by charging the lowest possible prices for their products. Such a profit-minimization requirement, which, as federal antitrust law, would bind all state-level corporate law regimes, would preserve incentives for businesses to perform efficiently because any incentive payments necessary for efficiency count as costs, not profits, and could therefore be retained by firms.

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