Chapter 4: Due Process, Best Practices, and the Antitrust Connection

Standards organizations are a creature of antitrust law. This isn't a metaphor — it's a statement about the legal foundation on which the entire system rests.

Think about what a standards body actually is. A group of competing companies gets together, agrees on a single way to do something, and then collectively adopts that approach — often to the exclusion of alternatives. In almost any other context, competitors agreeing to do the same thing in the same way would raise serious antitrust concerns. A group of competitors agreeing on price would be per se illegal. A group of competitors agreeing to exclude a competitor's technology from the market would be actionable.

Standards get a pass because they are generally considered pro-competitive. They enable interoperability, reduce costs, create markets, and benefit consumers. But that pass is conditional. It depends on the process being open, fair, and not dominated by any single participant or interest group. The moment the process becomes a vehicle for one company to impose its technology on the market, or for a group of companies to exclude a competitor, the antitrust protection erodes.

This chapter covers what makes a standard "open," the due process criteria that drive government recognition of private-sector standards, the antitrust protection that flows from those same criteria, the practical guardrails that standards bodies use to stay within bounds, and the confidentiality provisions that create tension with the openness principle.

4.1 What Makes a Standard "Open"

The term "open standard" is used liberally and means different things to different people. It's worth separating three distinct senses that often get collapsed together:

Open process — the development process is open to participation, balanced, consensus-based, and provides a right to appeal. This is the "open" that matters for government recognition and antitrust protection, and it's the subject of the rest of this chapter.
Open output — the final specification is publicly available, often without charge. Some organizations require this; others put specs behind a paywall or restrict them to members. A standard can have an open process and a closed output, or vice versa.
Open implementation terms — the resulting technology can be implemented royalty-free (or on RAND terms with no fee, or under some other open licensing regime). This is a patent-policy question, covered in Part II.

These are related but distinct attributes, and a standard can have some without having others. An ANSI-accredited standard behind a paywall, developed through a royalty-bearing RAND policy, is still "open" in the process sense. A specification published free on GitHub, developed by a closed group of self-selected vendors, is not — regardless of how accessible the final document is.

From a governance and antitrust perspective, which is where this chapter sits, "open" primarily refers to the process — not the output, and not the licensing terms. The rest of this chapter uses "open" in that sense.

The ANSI Essential Requirements

The ANSI Essential Requirements define what "due process" means in the standards context. While most technology standards work happens in consortia that aren't ANSI-accredited, the Essential Requirements represent a baseline that influences governance design across the industry — even in organizations that don't formally follow them.

The core principles:

Openness. Participation must be available to materially affected parties, without undue financial or organizational barriers. This doesn't mean every standards body has to be free to join; most consortia charge dues. It means the membership criteria can't be designed to exclude legitimate stakeholders.

Lack of dominance. No single interest category, individual, or organization may dominate the process. This doesn't mean everyone has equal influence — it means no one can exert undue authority that excludes fair consideration of others' viewpoints.

Balance. The process should seek a balance of interests. If the participants are heavily weighted toward one industry segment or one set of interests, the organization should make proactive efforts to recruit broader representation.

Consensus. ANSI defines consensus as "substantial agreement" — not unanimity. There must be a process for considering all views, resolving objections, and documenting how objections were addressed.

Right to appeal. Written procedures must include an accessible appeals mechanism. A participant who believes the process was unfair or that their objection was improperly dismissed must have a path to challenge the decision through an impartial review.

Notification and transparency. There must be timely notice of standards development activities, with adequate opportunity for participation, comment, and deliberation.

Consideration of views and objections. All comments and objections — whether from members or through public review — must be documented, considered, and resolved. You can't simply ignore an objection; you have to address it, even if the resolution is to proceed over the objection with documented rationale.

Even if your organization isn't ANSI-accredited, these principles provide a useful checklist for governance design. Can materially affected parties participate on reasonable terms? Is there balance among the participants? Is there a documented process for resolving objections? Is there a right to appeal? If the answers are yes, your governance is on solid ground.

These criteria do two substantive kinds of work that the rest of this chapter takes up in turn. First, they determine whether a standard qualifies for government recognition — the subject of the next section. Second, they form the primary defense against antitrust challenge — discussed in the section after that. The overlap is not coincidental: the same government concern about unfair competitive processes drives both bodies of rules. But the tests aren't identical, and a standard that satisfies one framework may still face scrutiny under the other.

4.2 Why the Criteria Matter: Government Recognition

The due process principles above aren't just good governance. They're the criteria that determine whether a standard gets picked up by government — for procurement, for incorporation into regulation, and for the presumption of legitimacy that comes with official recognition. Three frameworks are worth knowing by name.

United States — NTTAA and OMB Circular A-119. The National Technology Transfer and Advancement Act of 1995 directs federal agencies to use voluntary consensus standards developed by private-sector bodies in lieu of government-unique standards where feasible. OMB Circular A-119 operationalizes that policy. A-119 defines a "voluntary consensus standards body" using criteria that map closely to the ANSI Essential Requirements — openness, balance, due process, consensus, appeals — because the two frameworks co-evolved. The practical consequences are meaningful: A-119-compliant standards are preferred in federal procurement, can be incorporated by reference into federal regulations (which is how a lot of U.S. technical regulation actually works), and carry presumptive legitimacy if challenged.

European Union — Regulation (EU) No 1025/2012. The European counterpart recognizes three European Standardisation Organisations (CEN, CENELEC, ETSI) as the bodies whose outputs can serve as harmonised European standards, and it includes openness and balanced-participation requirements similar to A-119's. The distinctive element is the presumption of conformity under the New Legislative Framework: when an EU directive sets essential requirements for a product and the Commission issues a standardisation request, a resulting harmonised standard cited in the Official Journal gives implementers a legal presumption of compliance with the underlying requirement. Compliance with the standard equals compliance with the law. This makes harmonised European standards considerably more legally significant than most U.S. voluntary consensus standards, and it has generated real litigation — including recent European Court of Justice decisions on public access to harmonised standards.

International — WTO TBT. Sitting above both frameworks is the WTO Agreement on Technical Barriers to Trade, which obligates members to use relevant international standards as the basis for technical regulations where feasible. The TBT Committee's 2000 Decision on Principles for the Development of International Standards identifies six principles — transparency, openness, impartiality and consensus, effectiveness and relevance, coherence, and attention to developing-country needs — that are the shared DNA of A-119, Regulation 1025/2012, and most serious consortium governance frameworks.

Two practical takeaways before we turn to antitrust:

The frameworks converge more than they diverge. If your governance satisfies one, it's likely to satisfy the others. Design for the highest common denominator.

The stakes are highest in the EU. Because harmonised European standards carry a presumption of conformity with EU legal requirements, participation in CEN, CENELEC, or ETSI work that supports a standardisation request involves more than technical influence — it involves shaping what compliance with EU law actually looks like. Counsel should recognize when a standards engagement has crossed from voluntary technical coordination into quasi-regulatory territory, because the analysis changes.

4.3 Why the Criteria Matter: Antitrust Protection

Government recognition is one reason the due process criteria matter. Antitrust protection is the other — and for most practitioners, it's the more immediate concern. The governance rules, voting mechanics, and decision-making procedures discussed in Chapters 11 and 12 aren't just organizational housekeeping. They help address potential antitrust risk by ensuring the process remains open, fair, and well-documented.

Why Following Process Matters Legally

Standards developed through a process that meets due process requirements carry greater legitimacy — in government procurement, in regulatory contexts, and in antitrust analysis. A standard developed through an open, balanced, consensus-based process with a right to appeal is far less likely to face an antitrust challenge than one developed behind closed doors by a self-selected group.

Conversely, a standard developed through a process that lacks openness, that is dominated by a single company, or that ignores dissenting views creates antitrust exposure for the participants. If a competitor argues that the standard was used as a tool to exclude their technology from the market, the quality of the process becomes the primary defense.

Every governance design choice — how votes are structured, who gets to participate, how objections are handled, what thresholds apply — should be evaluated not just for operational efficiency but for antitrust soundness. The two are related: a process that is fair, open, and well-documented is both operationally sound and legally defensible. A process that cuts corners on due process may be faster in the short term but creates risk that can undermine the entire standard.

The Voluntary Nature of Standards

One principle that underpins the antitrust analysis is that standards are voluntary. Nobody is required to implement a standard. Nobody is required to participate in its development. The market decides whether to adopt it.

This voluntariness is part of what makes standards pro-competitive. If a standard doesn't serve the market, the market ignores it. If a participant doesn't like the direction, they can leave and pursue alternatives. The threat of non-adoption disciplines the process — because a standard that reflects only one company's interests will be ignored by everyone else.

The voluntariness principle also limits the antitrust exposure of most standards activities. A group of competitors agreeing on a technical specification that anyone can implement is different from a group of competitors agreeing on pricing or market allocation. The former creates value for the market. The latter extracts it.

But voluntariness has limits as a defense. When a standard achieves monopoly-level adoption — when it becomes effectively mandatory to participate in a market — the voluntary label becomes less convincing. This is where patent policy, discussed in Chapters 7 through 10, becomes critical. If you must implement the standard to participate in the market, and the standard requires patents that a single company controls, the voluntary nature of the standard doesn't protect the market from monopoly behavior.

4.4 Antitrust Policy in Standards Bodies

The Guardrails: What You Can and Cannot Discuss

Most standards bodies have an antitrust policy that participants must acknowledge — often at the beginning of every meeting. The typical policy reminds participants that they are competitors and that certain topics are off limits.

You cannot discuss pricing, market allocation, customer allocation, production levels, bidding strategies, or any agreement to boycott a competitor or its products. You cannot use the standards process to collectively agree to exclude a competitor's technology for competitive reasons (as opposed to technical merit). You cannot use the standards body as a forum for coordinating commercial behavior.

You can discuss technical specifications, interoperability requirements, testing methodologies, conformance criteria, and the other substantive topics that standards bodies exist to address.

The line between permissible and impermissible discussion can be subtle. A conversation about which technical approach the standard should adopt is legitimate. A conversation about why a competitor's approach should be excluded because it would give them a market advantage is not — even if the technical discussion and the competitive discussion lead to the same outcome. The intent and framing matter.

Competitor Collaboration and Its Limits

Standards work is inherently collaborative among competitors. The antitrust framework allows this collaboration because it produces pro-competitive outcomes — interoperability, reduced costs, consumer choice. But the collaboration must stay within bounds.

The most common risk areas:

Patent disclosure and licensing discussions. Patent disclosures happen within the standards body — that's the point of the disclosure process. If you have a patent that may read on the standard, you disclose it to the working group. But licensing discussions — the actual negotiation of terms, rates, and conditions — must happen bilaterally, outside the standards body, between the patent holder and the implementer. The standards body does not participate in, broker, or administer these licensing discussions. A group of competitors collectively deciding to work around a particular company's patents — even if those patents are legitimately disclosed — can look like a group boycott. Individual companies can independently decide to design around a patent. They cannot coordinate that decision within the standards body.

Membership and participation restrictions. Excluding a competitor from a standards body, or from a particular membership tier, requires objective justification. If the exclusion looks like it's designed to disadvantage a competitor rather than to serve the standards process, it creates antitrust risk.

Certification and compliance programs. If a standards body controls a certification mark that is effectively required for market access (like the Wi-Fi logo), the certification criteria must be objective and non-discriminatory. Using the certification process to disadvantage a competitor's products — for example, by testing for features that only one company's products support — is problematic.

Standard-Setting as a Potential Antitrust Weapon

The standards process can be used offensively. A group of companies can form a standard around their preferred technology, excluding a competitor's approach, and then use market adoption of the standard to disadvantage the competitor. This is sometimes called "standards capture."

The defense against standards capture is the same as the defense against other antitrust risks: open process, broad participation, objective technical criteria for decisions, and documentation. If the decision to adopt one technical approach over another was made through an open process based on technical merit, the fact that the outcome disadvantages a competitor is not an antitrust violation. Competition has winners and losers. The process has to be fair; the outcome doesn't have to be equal.

Variations in Antitrust Policy Across Organizations

Antitrust policies vary significantly across standards bodies. Some have detailed policies with specific examples of permissible and impermissible conduct. Others have a one-paragraph reminder that gets read aloud at the beginning of each meeting. International organizations may need to account for antitrust laws in multiple jurisdictions — US, EU, and other regimes that have different emphases and different enforcement patterns.

My view on antitrust policies in standards bodies: they're like "do not rob a bank" policies. Regardless of what the policy says — or doesn't say — you still can't violate antitrust law. A detailed antitrust policy doesn't create obligations that wouldn't exist without it, and a minimal policy doesn't create permissions that the law doesn't provide. The law applies whether the policy mentions it or not.

That said, a good antitrust policy serves a practical function. It reminds participants — many of whom are engineers, not lawyers — that they're sitting in a room with competitors and that certain topics are off limits. It creates a record that the organization takes compliance seriously. And it gives the chair a basis for redirecting conversations that stray into dangerous territory. The policy doesn't change the law, but it helps people follow it.

When engaging with a new organization, read the antitrust policy. Understand what it requires. And recognize that even in organizations with minimal written policies, the underlying antitrust principles still apply.

Antitrust policy isn't the only area where openness and pragmatism collide.

4.5 Confidentiality Provisions

Confidentiality in standards creates a tension with the openness principle, and it deserves careful handling.

When and Why Standards Work Is Confidential

Many standards bodies restrict access to draft specifications and working documents to members only. The reasons are both financial and strategic.

The financial reason: membership dues fund operations, and if drafts are freely available, the incentive to join diminishes.

The strategic reason: members who participate in the drafting process get an implementation head start. They can adapt the spec to their product needs and begin building before publication. By the time the final standard is public, participating members may have a significant lead over non-members. This early-mover advantage is a legitimate benefit of participation and an incentive for companies to engage.

Balancing Transparency with Competitive Concerns

Confidentiality rules exist to protect the development process — to give participants space to work, to propose ideas without public commitment, and to iterate without external pressure. These are legitimate purposes.

But confidentiality should not be used to protect proprietary information. As discussed in Chapter 3, standards are built with and among competitors, and they're intended for public availability. The onus is on the discloser to control what they share in a room full of competitors. Confidentiality rules protect draft specs, not business secrets.

The tension becomes acute when standards bodies want open source implementations alongside their specs. Open source lives in public repositories. Confidential specs live behind membership walls. Squaring this circle — as discussed in Chapter 3 — requires accepting that once you commit to an open source implementation, the spec is effectively public regardless of what the confidentiality rules say.

The broader trend is toward more openness. Organizations that develop in the open — with public repos, public mailing lists, and public meeting minutes — tend to attract broader participation and faster adoption. Those that maintain strict confidentiality tend to be older organizations or those in industries where the competitive advantage of early access is particularly valuable.

For practitioners, the key question is whether the confidentiality rules serve the process or whether they've become a barrier to the organization's goals. If the spec will ultimately be public, the value of interim confidentiality is limited. If the development process benefits from a period of protected iteration, confidentiality has a role — but it should be transparent about its purpose and limited in scope.

Practice note: The best advice on confidentiality in standards is to be as open as possible. Openness builds trust, attracts participation, and reduces the surface area for accusations of backroom dealing. Every layer of confidentiality you add is a layer that potential participants and implementers have to navigate — and some won't bother. Default to open unless there's a specific, articulable reason not to.