In his latest column for Forbes, Manatt Antitrust and Competition Partner David Reichenberg discussed how both the Federal Trade Commission (FTC) and the U.S. Department of Justice (DOJ) Antitrust Division are shifting from the traditional “consumer welfare standard” to a “total welfare standard” when evaluating health care-related antitrust cases.
In the article, Reichenberg explained that while the traditional standard “focuses on the impact of a practice on the final consumers of a product or service,” the total welfare standard is beginning to gain popularity as it accounts for anyone who engages with a market. The latter also takes all the public policy goals of health care into consideration, “beyond a straight analysis of market shares and competitive dynamics,” which have historically been the primary determinants of antitrust outcomes.
Reichenberg concluded by offering advice to business leaders, hospital systems, insurers and health care leaders on how to prepare for and develop potential proposals for health-related initiatives, policies, transactions or other investments, in order to avoid scrutiny from the FTC or DOJ. “In light of this shift, it would be wise for all business leaders with an interest in healthcare to be prepared to explain how each of its strategic initiatives is increasing access, lowering cost, improving quality or enhancing viability of healthcare delivery to consumers,” he said.
Forbes subscribers can read the full article here.
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