Antitrust Policy in a Populist Era

Thank you.

So now, um, the title of the p-panel is, um, well, it premised on populism.

Right? Um, antitrust in the po- a populist era.

So I thought, um, maybe again, somewhat unconventionally, before we, uh, before I let you discuss this, I would put some, um, some facts on the table.

Um, the, um, the first Trump administration, uh, generally followed a traditional, uh, approach to, uh, antitrust enforcement.

There was an uptick in merger cases, no question about that.

Uh, and they brought the first fully litigated, um, challenge to a vertical merger in about forty years.

Um, that was the ill-fated, uh, AT&T Time Warner, uh, case.

Um, and then in addition, um, they brought cases under Section Two, monopolization, um, against Google for search, uh, and against Meta.

Uh, these were the first meaningful Section, uh, two cases since Microsoft, uh, had been decided in two thousand and one.

Six months after President Biden took office, um, he announced, um, what he called a, uh, uh... well, at first, say, first, he said that, that forty years earlier, the United States had, uh, quote, "Cho-chosen the wrong path," close quote, when it adopted the consumer welfare standard and informed antitrust in, uh, uh, policy, uh, with, uh, with economic analysis.

Um, and he then announced a, what he called the whole of government approach to competition policy, uh, which listed seventy-two specific things, uh, more or less specific things to be done, um, some of which involved direct, uh, antitrust policy, but others of which involved competition, uh, as admin-- as handled by the various regulatory agencies.

So, for example, urging the Federal Maritime Commission, uh, to be, uh, more, uh, energetic in, uh, seeking competitive prices and, uh, instructing the F- Food and Drug Administration to make hearing aids available without a doctor's prescription, uh, which in fact, uh, they did.

The President Biden's speech, together with his nomination of, of Lisa Cans, who chair the Federal Trade Commission, and Jonathan Cantor as Assistant Attorney General, uh, for Antitrust, signaled a about a hundred and eighty degree turn against the economic approach that he had, uh, the president, uh, had criticized.

And the, the new administrators set out to, um, to alter policy in, uh, uh, let's say, I wouldn't say hasty, but as quickly as possible, um, by, uh, rescinding at least a dozen policy statements, some of which were fairly recent, others of which dated back more than twenty-five, almost thirty years, uh, and issuing, uh, several substitute policy statements of their own.

Uh, the most prominent perhaps being the new interpretation of Section Five of the Federal Trade Commission Act, making, uh, it an unfair method of competition to do anything that seemed in any way unsavory.

Um-They issued new merger guidelines, the most interesting hallmark of which is that they involve, uh, seventy case citations.

Now, there's nothing wrong with citing cases, but most of the pre-preceding merger guidelines didn't really do that.

They were explaining how the, how the, uh, agency analyzed, uh, mergers.

Um, these gu- the new guidelines, um, cite cases from the nineteen sixties.

Supreme Court's not had a merger case of section... substantive merger case since nineteen seventy-four.

Um, and so these are all cases that, um, in the nineteen sixties in which a market share of as little as five percent, uh, could bring down the wrath of the United States, uh, on a merger.

Um, they...

The guidelines re-to retain some economic principles, but they basically back away from any thorough commitment to, uh, to economic analysis.

The, the, uh, agency and...