After a week-long thrashing by the FTC, the Nintendo Switch has been vindicated by a federal judge

Mario Kart
(Image credit: Nintendo)

The Nintendo Switch has been an unfortunate casualty of the FTC court case that's potentially set to decide whether the Xbox Activision deal goes ahead, but now its honor has been defended by a federal judge.

A significant part of the FTC's strategy has been to highlight Microsoft's strength in the games industry. If it can do that successfully, it would make its job - of proving that this historically large acquisition is anti-competitive - significantly easier. To do that, it's focused on the three main console providers, attempting to argue that the Nintendo Switch shouldn't be considered alongside the Xbox Series X and the PS5.

If the FTC can successfully disavow the Switch, then the console war becomes a two-horse race between Xbox and PlayStation, in which Microsoft's relative strength theoretically becomes much greater.  If it can't, then Microsoft remains in third place behind Sony and Nintendo, and its apparent position in the industry is weaker. It's not a perfect argument - Microsoft is still well behind Sony, and both Microsoft and the FTC acknowledge that Xbox has lost the console war.

Nevertheless, the attempt to diminish the strength of the Switch remains, with the FTC arguing that it's technically an 8th Generation console that has no place competing with the processing power of Sony and Microsoft's 9th Generation offerings. It's being labeled as almost irrelevant in the modern console landscape - something that pundits have already decried as flawed given the strength of both the Switch's sales and the importance of The Legend of Zelda: Tears of the Kingdom, one of 2023's best-selling games.

Microsoft hasn't been leaping entirely to the Switch's defense - the company has been attempting to focus on Sony's strength - although Activision-Blizzard CEO Bobby Kotick did acknowledge that he should have been more open to the console's potential.  Nintendo's deposition was sealed, so we don't know what it has to say on the matter, but at the last moment, it seems the Switch found an unlikely defender. During yesterday's closing arguments, IGN reporter Rebekah Valentine tweeted a comment from the judge presiding over the case, suggesting that the Switch is "not the same [as Xbox and PlayStation]. In many ways, it's better."

Technical law analyst Florian Mueller offered some more context around those comments. While the FTC stated that witnesses had said the Switch is not the same as high performance consoles, Judge Corley said that they connected to TVs to allow players to play "many of the same games," with Microsoft pointing out that many of the world's most popular games - Fortnite, Minecraft, and EA's Sports games - are available on the platform.

Those comments reflect a common line of analysis during this trial: that it doesn't really matter what generation the Nintendo Switch is part of. What matters is that it's still a popular, profitable console with games that still have the power to sell in the tens of millions. The Switch was never marketed as a direct competitor to PlayStation and Xbox consoles, just as the Wii and Wii U were alternatives to the likes of the Xbox 360, Xbox One, and PS3 and PS4. It's long been discussed that Nintendo has somewhat deliberately thrown off the shackles of the traditional console generations in order to appeal to a different audience, something both the Wii and the Switch have done extremely successfully. It seems that the FTC hasn't been wholly successful in its argument if this is the judge's takeaway, and even though we're still waiting for the Switch's successor, it seems that the original console is still creating new fans. 

Keep up with our list of the best Switch games.

Ali Jones
News Editor

I'm GamesRadar's news editor, working with the team to deliver breaking news from across the industry. I started my journalistic career while getting my degree in English Literature at the University of Warwick, where I also worked as Games Editor on the student newspaper, The Boar. Since then, I've run the news sections at PCGamesN and Kotaku UK, and also regularly contributed to PC Gamer. As you might be able to tell, PC is my platform of choice, so you can regularly find me playing League of Legends or Steam's latest indie hit.