Until recently, the antitrust bar paid little attention to antimonopoly movement critiques of the way antitrust rules are framed and enforced. They did not need to consider those views until the antitrust enforcement agencies did. Antitrust lawyers are undoubtedly taking the antimonopoly movement seriously now.
During President Biden’s first year in office, he placed three antimonopoly movement favorites in charge of competition policy: Jonathan Kanter at the Justice Department’s Antitrust Division, Lina Khan at the Federal Trade Commission, and Tim Wu at the White House’s National Economic Council. This recognition and influence marked a remarkable achievement for a movement that was barely on the policy-making radar five years ago.
In broad outline, the newly prominent antimonopoly movement (which I will also term “neo-Brandeisian”) seeks to transform antitrust law into a thoroughgoing attack on concentrated economic power. Neo-Brandeisians target concentration for reasons that go beyond preventing the exercise of market power, which they treat as a byproduct of concentration not requiring separate analysis. They aim to stop exploitation in the economic realm—going beyond harms to consumers and other buyers to include exploitation of small and powerless suppliers such as small businesses, farmers, and workers—and to interdict oligarchy in the political realm.
Some neo-Brandeisian policy proposals overlap with those of other antitrust reformers. These include, for example, strengthening the structural presumption in horizontal merger analysis and overturning various Supreme Court precedents. Other antimonopoly movement policy positions are distinctive, notably:
From a non-neo-Brandeisian perspective, antitrust reform is necessary to bring under control market power, which has been growing throughout the U.S. economy for decades. As an economic problem, market power harms directly victimized buyers and suppliers. Market power also harms society as a whole by lessening economic growth and productivity and by contributing to our Gilded Age levels of inequality.
Growing market power means that antitrust is not working the way it should be. The antitrust rules in place today—which collectively describe how we implement antitrust policy—are not those employed when modern antitrust was developed in the 1940s and elaborated on during the next three decades. Rather, today’s rules were largely created by the courts beginning in the late 1970s. The courts transformed antitrust law with the expectation that doing so would boost the economy without substantially increasing the risk of market power. But it is now evident that this expectation was misplaced, as those rules failed to control what turns out to have been a progressively growing exercise of market power.
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