Government intervention should be specific and tailored.

Stacy Baird, “The Government at the Standards Bazaar,” Stanford Law and Policy Review, 04-17-2007, https://law.stanford.edu/wp-content/uploads/2018/03/baird.pdf

VI. THE TEST (PART THREE): GOVERNMENT INTERVENTION MUST BE REASONABLY TAILORED

Where the government concludes that intervention in the standards-setting process is warranted, it should reasonably tailor its intervention to rectify the identified market failure and to achieve the particular public interest objective. The government should limit the scope of intervention and define objectives in acting to address a critical or important public interest objective. In order to assure the most narrowly tailored government intervention, where government elects to intervene, it should be able to clearly articulate: (a) the specifics of the important public interest objective in the establishment of a particular information technology standard; (b) the purpose and scope of the government intervention; and (c) identifiable objectives for government intervention to achieve.

Because the government is substantially predisposed not to intervene and the risk of government failure is of substantial concern, the government should, where it determines it must, proceed incrementally in its intervention, respectful of the guiding premises that, first, the information technology market is generally well equipped to develop standards, second, government prefers market-developed information technology standards to government mandates, and, third, the risk of government failure is significant. By incremental intervention, I mean that which initially produces minimal non-market behavior, and with each step, imposes greater degree of intervention. With this in mind, the first step in intervention should be to encourage market activity; government should first encourage the market to undertake and develop the needed standards. Typically, the government uses incentives such as taxation incentives or government funding through grants or loans to encourage market behavior and the same could be true in regard to the development of information technology standards. In the event of disputes between stakeholders that delay standards to the extent of a market failure, the government could facilitate something akin to mediation to mitigate the need for more direct government intervention.