Source: United States Department of Justice News
Antitrust Enforcement: The Road to Recovery
Remarks as Prepared for Delivery
I. Introduction
It is wonderful to be back at the Stigler Center. Five years ago, I attended the Center’s inaugural antitrust and competition conference. That first conference asked an important question: “Is There a Concentration Problem in America?” In retrospect, that particular conference functioned as a critical inflection point in the conversation regarding corporate concentration and the state of antitrust enforcement — a conversation that we are still having today, but against the backdrop of a dramatically different enforcement and political environment.
I have vivid memories of attending a lunchtime keynote, much like this one, where Judge Richard Posner quipped with a degree of seriousness and a bit of humor: “antitrust is dead, isn’t it?”[1] It was a provocative statement, to be sure, but a fair question. Judge Posner was saying the quiet part out loud. Indeed, the purpose of the conference was, in many ways, to assess whether antitrust enforcement still had a pulse and whether it could be nursed back to health.
It turns out that antitrust was not actually dead. If anything, the patient was on the table for open heart surgery.
I am pleased to report that the patient is alive and well, and the prognosis is good. Antitrust enforcement is on the mend, cared for and supported by a broad, bipartisan coalition devoted to its rehabilitation and full recovery.
We are not completely out of the woods yet though. Now we have the distinct challenge — and opportunity — of charting the path forward.
The good news is: that which does not kill us makes us stronger. And I am here to declare that the era of lax enforcement is over, and the new era of vigorous and effective antitrust law enforcement has begun. But the path will not be easy or linear.
II. Five Point Plan for Antitrust Law Enforcement Amidst a Competition Crisis
With the remainder of my time today, I would like to outline what I see as five pillars of an effective civil antitrust enforcement regime. Although I am heartened by the productive discussions taking place in Congress to clarify our antitrust laws, Americans cannot afford to wait for new legislation to combat our competition crisis. These five pillars, which are by no means exhaustive, focus on enforcing the laws we already have — as Congress wrote them and as courts have interpreted them for decades.
First, recognize that the purpose of antitrust law is to protect competition.
Second, change the language of antitrust so it empowers all Americans to participate.
Third, adapt antitrust to address market realities rather than relying on static models and assumptions.
Fourth, revive enforcement of Section 2 of the Sherman Act.
Fifth, litigate cases to decisions so that the law can develop.
Each of these five pillars are worthy of longer discussion, so today I will just summarize briefly in the interest of time.
- The Purpose of Antitrust Is to Protect Competition
The first pillar is to recognize that the purpose of antitrust law is to protect competition. “The heart of our national economic policy,” the Supreme Court said in Standard Oil v. FTC, “long has been faith in the value of competition.”[2]
Yet somewhere along the way, the antitrust community lost its North Star. Over time, antitrust enforcement turned into a mathematical exercise focused on measuring welfare tradeoffs rather than trusting in the benefits of competition. We took up the impossible challenge of quantifying often unquantifiable welfare effects and speculative efficiencies down to the last decimal point. On the basis of those calculations and projections, the antitrust community took it upon themselves to decide who should win and lose rather than allowing competition and competitive markets to govern that determination.
The problem is that standards about measuring welfare tradeoffs turn antitrust into a narrow technical exercise that overlooks the realities of our economy. Antitrust law is about so much more. To paraphrase the Supreme Court in Northern Pacific, antitrust promotes material progress, quality, and innovation, “at the same time” that it supports our democracy and preserves a society of choice and opportunity.[3] Antitrust helps make us both prosperous and free.
We usually cannot measure and quantify all of those values. But we can promote them the way Congress intended — by protecting competition and the competitive process.
Instead, however, for years scholars and pundits have expended enormous energy debating the meaning of words that do not appear in the statute: the ephemeral “consumer welfare standard.”[4] By my count, 831 academic articles have been written invoking the consumer welfare standard, with more than 200 since 2020. It is the academic gift that keeps on giving.
All of this is fine as an intellectual exercise, but there is just one problem — the phrase “consumer welfare standard” does not appear in any statute, legislative history, or common-law precedents. The vibrant debate around the consumer welfare standard is an attempt to interpret words that are not in the law. Instead, the text of the antitrust laws reflects a value judgment by Congress to protect competition.
For generations, Congress has continued to anchor our antitrust laws in a simple but powerful concept: that competition deserves protection. Congress prohibited agreements that restrain trade, mergers that substantially lessen competition and conduct that monopolizes markets. Where the Sherman Act’s prohibition on unreasonable restraints of trade was general, the Supreme Court explained that, based on the common law it invoked, it outlawed restraints that were “unreasonably restrictive of competitive conditions.”[5]
The Supreme Court describes antitrust law the same way. There are zero Supreme Court opinions that use the phrase “consumer welfare standard.” Instead, the Supreme Court has repeatedly described the purpose of the antitrust laws as protecting competition. For each of the handful of times the Supreme Court has mentioned that antitrust is a prescription for consumer welfare, it has a dozen times reminded us that the mandate of the law is competition.[6] Even when courts mention the welfare of consumers as a prescription, they do not declare it as the exclusive goal. Indeed, courts have articulated myriad benefits and goals associated with preserving competition and enforcement of the antitrust laws.
Competition is the process of rivalry we all see play out in the markets and participate in every single day as buyers, sellers, workers and innovators.
Focusing on rivalry and competition lets us decide the tough questions in particular cases as markets evolve.
I have seen those that say antitrust does not protect our democracy argue that, even though that was plainly Congress’ intent, acknowledging that value in the law would not be administrable in particular cases. I would say the same for assessing the allocative efficiency impacts of particular cases. We spend millions arguing about models of the economy and how conduct will hypothetically shift outcomes to the fourth decimal point up or down. Plaintiffs and defendants offer experts to present quantitative models. More often than not, courts reject both competing models and do not believe either side. The judges are on to something. Law enforcers and courts are not central planners capable of consistently making those kinds of measurements. Calculating welfare effects is difficult in non-dynamic markets and is increasingly impossible in today’s multisided, cross-subsidized, and dynamic markets.
We can, however, more easily assess how conduct or mergers impact competition and the competitive process. That is how the antitrust laws simultaneously serve prosperity and freedom and all their many values — by preserving economic liberty and letting competition operate to organize our economy.
That is not to say promoting competition never raises tough questions and never requires debate and expertise. Of course, there will always be hard issues and hard cases. Focusing on competition, however, ensures that we remain faithful to the underlying purpose of the antitrust laws, which is that a competitive economy yields innumerable benefits for a free, open and democratic society.
Congress has chosen the values we are to preserve, and it has squarely settled on upholding a competitive process in free markets. Our job is to ensure a fair game, not to choose who wins.
The good news is that promoting competition can be administrable and effective. That is why it is the first pillar in addressing the competition crisis. We need to enforce the laws as we find them and vigorously protect competition as Congress demanded.
- Change the Language of Antitrust So It Empowers Americans to Participate
That brings me to my second pillar. For too long we have cloaked the antitrust laws in technocratic language. We must use the language of the people and the markets to empower participation in the Antitrust enterprise.
Our competition crisis affects real people. These people are not numbers in a spreadsheet. They are farmers struggling to find competitive buyers for their livestock. They are travelers who cannot afford a plane ticket home to visit family, or consumers who have little choice in who extracts and exploits their data.
When we issue guidelines and speak only of small but significant non-transitory increases in price, or of how vertical effects derive from the elimination of double marginalization, we exclude these people from the antitrust dialogue. This language boxes the public and the courts out of a critical discourse about how their economy is structured.
The technocratic veil around antitrust has helped mask contortions in the law that undermine its purposes. How else can one rationalize a theory that monopolies and competition can coexist? Or that establishment and maintenance of monopoly power are consistent with antitrust law? Using the language of the law and of real people we can be clear — merger to monopoly always lessens competition.
At the same time, a technocratic approach has made antitrust less accessible, and less democratically accountable. Congress, the courts and the people cannot engage with language that is accessible by a small segment of the population. Shielding the antitrust exercise from the public benefits only those with the money and power to hire experts and purchase access. And it shuts out other forms of expertise and real-world experience.
Finally, our inaccessible antitrust system makes it harder for businesses to understand whether their conduct is lawful. Antitrust is supposed to empower businesses to operate to their fullest potential in an economy free from the threat of monopolists. But businesses cannot act confidently if they do not know the rules or if the rules are so complex that it is impossible to rely on them with any degree of certainty.
Of course, economics remains incredibly important. So do other forms of expertise.
But at the same time, you should not need a graduate degree in economics to understand the law. The challenge before us is to engage in sound reasoning at the same time that we reengage the public with critical decisions that impact the structure of their economy.
That is why one of my primary goals as Assistant Attorney General is implementing the division’s Access to Antitrust Justice initiative — “AT2J.” That means listening to the public. That also means writing our guidelines in language that reflects how people understand harm to competition. We recently published an updated leniency policy and extended FAQ that reflect this focus on accessibility. Our ongoing review of the merger guidelines with the FTC is also placing a high priority on accessibility, both by engaging the public more broadly in the debate, and by prioritizing plain language in the revisions.
- Address Today’s Market Realities, Not Yesterday’s
The third pillar is to focus on the competitive realities of today’s markets. The digital revolution has brought about change in our economy rivaling, if not exceeding, that of the Industrial Revolution. We must acknowledge that new market realities demand new approaches to competition enforcement. We need to update our tools to meet the facts, not try to contort the facts to fit out of date tools.
The changes in our economy are not confined to digital markets. The internet revolution, the advent of Big Data, and the new ubiquity of connectivity have transformed our entire economy, from finance to healthcare to energy to retail and so on. Now you order your ticket online in advance, interacting in seconds with a dozen or more interconnected businesses. Across the economy, businesses are harvesting more data, gatekeepers are growing in strength and automated decision-making is changing business paradigms. Just as our economy evolves, so must the tools that we use to understand it.
That will often mean focusing first on the facts when we examine competitive realities, as opposed to beginning with assumptions embedded in out of date models or cases. We need to start with how competition really works in a market, then extrapolate to whether competition would be harmed or a monopoly created or maintained.
It will also mean reassessing whether precedents are outdated because they reflect embedded assumptions about how markets work that no longer hold true. As Justice Gorsuch recently explained in NCAA v. Alston, analysis of competitive effects follows market realities, and so “[i]f those market realities change, so may the legal analysis.” [7] While enforcers and the courts must respect Congress’ core command that the antitrust laws should be applied to protect competition, how we do that must evolve as competitive realities do.[8]
Antitrust enforcers must therefore think critically about where their practices, and the cases, reflect outdated assumptions.
Take Brooke Group.[9] There, the Supreme Court recognized a safe harbor for above-cost pricing, even where such pricing is exclusionary, based upon what it characterized as “the general implausibility of predatory pricing.”[10]
A growing body of evidence suggests that above-cost pricing strategies can in fact be a rational strategy for anticompetitive exclusion, particularly in modern digital markets.[11] We need to think about whether an assumption of general implausibility still holds in modern markets when companies often prioritize long-term growth of share price over short-term profitability. Strategies that may have once seemed implausible or irrational can yield eye-popping wealth for executives that earn more from their shareholding than from salaries or bonuses.
Another example is the refusal to deal paradigm set forth in Trinko and Aspen.[12] Modern online platforms are cooperatives. They are fundamentally participatory in a way telephone lines and ski lifts never were. Yet Trinko relies on basic understandings about how networks are built and whose investment incentives are most important. If the nature of the networks changes, other parts of the analysis should probably follow.
There are more examples than I have time to go through today.
That is the third pillar: we need to focus on markets as they exist today. If conduct harms competition, the models and tools need to be adapted, not the other way around.
- Vigorously Enforce Section 2 of the Sherman Act
The fourth pillar of my plan is to vigorously enforce Section 2 of the Sherman Act.
Section 2 prohibits monopolization, but when we met here five years ago it was probably the best illustration of Judge Posner’s question. With no significant cases in nearly twenty years at that point, Section 2 was very near death.
Senator Sherman warned that “if the concentrated powers of [a monopoly] are entrusted to a single man, it is a kingly prerogative, inconsistent with our form of government.” Yet we now know many such people who enjoy power over key markets. Notwithstanding the original goals of the law, we saw the emergence of monarchs over the new industries of the digital revolution.
Senator Sherman wrote the antitrust laws as a prescription. We must vigorously enforce the Sherman Act to prevent the unlawful acquisition, maintenance and extension of monopoly power.
That means we must assess conduct on its merits, and based on the entire course of conduct involved. We need to use all our tools and understanding to assess how monopolies have arisen and how they are maintained. We must challenge conduct that suppresses or destroys competition.
We also need to take more seriously courses of conduct that maintain monopolies. I gave remarks on this point a couple weeks ago. Monopoly maintenance, in the form of moat-building strategies, helps to prevent the erosion of monopoly positions and thereby harms competition. Enforcers and courts need to do a better job of assessing the overall scheme of monopoly maintenance, including through acquisitions of nascent competitors and the threat of discrimination.
That is the fourth pillar — we must vigorously enforce Section 2 of the Sherman Act. It is a statute tailor made to meet the moment. We will not be afraid to challenge monopolization.
- Enforce the Law Through Litigation
The fifth pillar of my plan is to faithfully discharge the division’s affirmative “duty” to “prevent and restrain” antitrust violations.[13] Our duty is to litigate, not settle, unless a remedy fully prevents or restrains the violation. It is no secret that many settlements fail to preserve competition. Even divestitures may not fully preserve competition across all its dimensions in dynamic markets. And too often partial divestitures ship assets to buyers like private equity firms who are incapable or uninterested in using them to their full potential.
At the Department of Justice, we are law enforcers. It is not our role to micromanage corporate decision making under elaborate consent decrees. It is our job to enforce the law. And when we have evidence that a defendant has violated the law, we will litigate to remedy the entire harm to competition. That will almost always mean seeking an injunction to stop the anticompetitive conduct or block an anticompetitive merger.
But my emphasis on litigation is not just about institutional competence. It also supports the goal of ensuring the language of antitrust reflects how people think about competition and in ensuring that the law catches up to market realities. If we do not bring cases, the law will stagnate. Even as our economy undergoes revolutionary change, over-reliance on settlement would leave us governed by yesterday’s law. We need to bring cases to enable the courts to wrestle with the realities of today’s markets and ensure antitrust law is fit for purpose in the modern economy. The failure of antitrust enforcers to enforce Section 2 of the Sherman Act has allowed the law to stagnate.
That is point five: litigate. Congress designed antitrust law to play out in the courts, before judges and juries in an open forum.
III. Conclusion
I want to end by reflecting on my duty. I swore an oath to uphold the laws. Just last week, I appeared before a federal court in Denver where I explained just how seriously I take my obligation to protect the American public under the antitrust laws. Antitrust is a kitchen table issue. The public depends on us to police the channels of commerce against collusion and monopoly. When we fail, families struggle to afford groceries. They earn lower wages. They lose control of their own private data to dominant platforms. The American Dream slips away.
That is why the Department of Justice must zealously protect competition. With a healthy diet, steady exercise and regular checkups, I have a feeling that the patient will continue to lead a long and healthy life. I look forward to the work ahead.
Thank you.
[1] Stigler Center, Judge Richard A. Posner in Conversation with Professor Luigi Zingales, YouTube, at 05:20 (Mar. 28, 2017), https://www.youtube.com/watch?v=JRCm_gJ2EOk.
[2] Standard Oil Co. v. FTC, 340 U.S. 231, 248 (1951).
[3] N. Pac. Ry. Co. v. United States, 356 U.S. 1, 4 (1958).
[4] See, e.g., Symposium, The Goals of Antitrust, 81 Fordham L. Rev. 2151 (2013).
[5] Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 58 (1911).
[6] Compare, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 343 (1979) (relying on Robert Bork, The Antitrust Paradox (1978), to describe antitrust as a “consumer welfare prescription” without describing it as exclusively so), with, e.g., NCAA v. Alston, 141 S. Ct. 2141, 2147 (2021) (“In the Sherman Act, Congress tasked courts with enforcing a policy of competition . . . .”), N.C. State Bd. of Dental Exam’rs v. FTC, 574 U.S. 494, 502 (2015) (Sherman Act “serves to promote robust competition” and prohibit “practices that undermine the free market”), Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 895 (2007) (antitrust laws “designed primarily to protect interbrand competition”), State Oil Co. v. Khan, 522 U.S. 3, 15 (1997) (primary purpose of antitrust laws “is to protect interbrand competition”), Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 458 (1993) (Sherman Act directed “against conduct which unfairly tends to destroy competition itself”), NCAA v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85, 104 & n.27 (1984) (“Under the Sherman Act the criterion to be used in judging the validity of a restraint on trade is its impact on competition.”), Nat’l Soc’y of Pro. Eng’rs v. United States, 435 U.S. 679, 695 (1978) (Sherman Act reflects “legislative judgment” that “competition is the best method of allocating resources”), Gordon v. N.Y. Stock Exch., Inc., 422 U.S. 659, 689 (1975) (“sole aim of antitrust” is “to protect competition”), United States v. Topco Assocs., Inc., 405 U.S. 596, 610 (1972) (“freedom” guaranteed by antitrust “is the freedom to compete”), FTC v. Proctor & Gamble Co., 386 U.S. 568, 580 (efficiencies are no defense to anticompetitive merger because Congress “struck the balance in favor of protecting competition”), United States v. Von’s Grocery Co., 384 U.S. 270, 274–77 (1966) (purpose of antitrust laws is to “prevent economic concentration” and “protect competition”), United States v. Phila. Nat’l Bank, 374 U.S. 321, 362–63, 371–72 (1963) (“[C]ompetition is our fundamental national economic policy . . . .”), Brown Shoe v. United States, 370 U.S. 294, 315–23 (1962) (Celler-Kefauver Act’s “dominant theme” to combat “rising tide of economic concentration” through competition), N. Pac. Ry. Co. v. United States, 356 U.S. 1, 4 (1958) (“[T]he policy unequivocally laid down by the [Sherman] Act is competition.”), United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 385–86 (1956) (Sherman Act achieves “freedom of enterprise from monopoly or restraint”), Standard Oil Co. v. FTC, 340 U.S. 231, 248 (1951) (“The heart of our national economy policy long has been faith in the value of competition.”), Allen Bradley Co. v. Local Union No. 3, Int’l Bhd. of Elec. Workers, 325 U.S. 797, 809 (1945) (“The primary objective of all the Anti-trust legislation has been to preserve business competition and to proscribe business monopoly.”), and Bd. of Trade v. United States, 246 U.S. 231, 238 (1918) (restraints legal if they “regulat[e]” or “promote[] competition” but illegal if they “suppress” or “destroy” it). Bork’s selective reading of the legislative history to divine a “consumer welfare standard” has been widely criticized. See, e.g., Lina M. Khan, Note, Amazon’s Antitrust Paradox, 126 Yale L.J. 710, 720–21 (2017); Herbert Hovenkamp, The Antitrust Enterprise: Principle and Execution 39–42 (2005).
[7] NCAA v. Alston, 141 S. Ct. 2141, 2158 (2021).
[8] State Oil Co. v. Khan, 522 U.S. 3, 20 (1997).
[9] Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993).
[10] Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 223, 227 (1993); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 589 (1986) (“[T]here is a consensus among commentators that predatory pricing schemes are rarely tried, and even more rarely successful.”).
[11] Jonathan B. Baker, The Antitrust Paradigm: Restoring a Competitive Economy 147 & n.143, 148 & n.144 (collecting research).
[12] Verizon Commc’ns Inc. v. Law Offs. of Curtis V. Trinko, LLP, 540 U.S. 398 (2004); Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985).
[13] 15 U.S.C. §§ 4, 9, 25.