Antitrust and the Rule of Law

Genuinely bipartisan issues are hard to come by these days. And yet, over the last decade, antitrust policy has emerged as a surprising exception.

Since President Donald Trump first took office in 2017, promising an end to anti-worker policies and bad trade agreements, a renewed commitment to antitrust enforcement has formed a key part of his administrations’ economic agendas. The Biden administration, for all the drama that surrounded its stewardship of the Federal Trade Commission, largely continued that trend rather than reversing it; many of the Biden administration’s most significant antitrust accomplishments were continuations of investigations and cases that began under the first Trump administration.

We are now in the early days of President Trump’s second administration, in which I am privileged to serve as a Federal Trade Commissioner. And thus far, the decade’s antitrust renaissance seems poised to continue, as reflected in the selection of populist conservative Vice President JD Vance and the appointment of antitrust veteran Gail Slater to head the Department of Justice’s Antitrust Division.

Of course, there has been opposition to this shift. By the lights of the antitrust bar and the academy, the pro-antitrust revival is nothing short of revolutionary, seemingly an overt repudiation of the hands-off en­forcement philosophy that characterized the presidencies of George W. Bush and Barack Obama. Among its critics, the recent antitrust resurgence is sometimes derisively described as “hipster antitrust,”¹ grounded more in a partisan critique of “big business”—or, on the right, a concern to stop Silicon Valley’s increasingly heavy-handed censorship—than in serious economic analysis. And today’s policymakers and enforcers must contend with a largely ossified body of antitrust case law, produced under the influence of the “law and economics” movement, which disfavors, and even hamstrings, aggressive enforcement.

But today’s antitrust renaissance did not emerge from nowhere. It is the logical outgrowth of political and economic concerns about concentrated power that have characterized the American tradition from its beginnings. Speaking from the Right, those of us pursuing the revival of antitrust in the second Trump administration have zero interest in trying to garner plaudits from left-wing stakeholders by carrying on the ideological excesses of the Biden FTC. Rather, we are committed to an ongoing project of serving the values that Congress and the American people have embedded in our laws.

To be a conservative, at least one of the Burkean variety, is to pursue discipline and order, and to abide by a moral order that transcends the self. Conservatism, then, goes hand in hand with a commitment to the rule of law—the administration of equal justice in like cases, while, of course, leaving room for the prudential judgments that characterize all human works. This means that we as Federal Trade Commissioners must not act out of private interest or self-dealing motives. Instead, we are here to faithfully execute the antitrust (and consumer protection) laws with which Congress and the public have entrusted us. That is our duty, and we will see it through.

Reclaiming the Common Good

Free market maximalists routinely contend that transactions in the market are voluntary. If you don’t like what a company is doing, take your business elsewhere, the argument runs. Ostensibly, individual consumers in the market have the power to, at least in the aggregate, shape the incentives of corporate behavior.

This is not the lived experience of millions of Americans. How many people would say that they have free and equal bargaining leverage with their bank or with companies that service their email or photo sharing or communications needs? That’s not the world we live in. In one sense, of course, commerce is “voluntary,” in the sense that no one’s pointing a physical gun to force consumers to use this company or that. But today, massive corporate interests have an immense amount of power over multiple facets of our lives, in a way that human society hasn’t experienced before. And powerful collective action problems thwart any meaningful resistance.

Among many American conservatives, these concerns intensified during the Covid-19 pandemic when powerful technology firms acted, often in concert, to suppress criticisms of public health authorities, discussions of the pandemic’s origin, and a great deal of speech supportive of President Trump.² But while censorship concerns may have been a wake-up call for many, it soon became clear that the challenges ran far deeper. Conservatives increasingly found themselves asking fundamental questions about corporate power: If this company can harm me, what about these other companies I depend on? Widespread concerns over “debanking”—large financial institutions removing people’s accounts because of opposition to the nature of the account holder’s business, or because of statements made by the account holder online—added fuel to the fire.

These and other considerations soon began to snowball. Conservatives found themselves stepping back and asking whether, thanks to decades of free market sloganeering, they’d ignored a political problem that was far more pervasive than they realized. Free markets are good, but they’re not self-perpetuating: it is in the interest of many large companies to try to dominate the free market and control it in order to maximize profit.

Every effort to maximize profit, of course, isn’t a bad thing. That’s how businesses flourish, by improving their offerings, relative to their competitors, in order to attract more consumers. But competition is the precondition of that flourishing, which is why competition authorities enforce antitrust laws in the first place. That’s the only way you have a free market. And a free market is what’s supposed to prevent bad outcomes, like a few giant companies that are engaged in censorship. Only when consumers have meaningful options can they take their business elsewhere.

As Senator Mike Lee has stressed, companies that felt competitive pressure wouldn’t treat their customers so poorly. Senator Lee’s observation highlights a fundamental disconnect: consumers feel that companies are unresponsive to what they’re looking for in the marketplace, and yet all the while, pro-market dogmatists insist that this is the free market functioning as it ought to, and, indeed, as it must. That disconnect and that tension is precisely what drove many conservatives to ask new questions. Maybe we’ve been asleep at the wheel when it comes to antitrust enforcement, which could have prevented or mitigated a lot of these problems.

Robust antitrust enforcement, conceived in this way, is not a betrayal of conservative principles. Rather, it is their practical application. Republican Senator Albert Cummins once observed that, in the political realm, it is entirely possible that a monarchical system might run well. A king could be very fair and just and would certainly govern much more efficiently than our divided form of government. But the American experience shows that when you concentrate that much power in the hands of one person, it leads to tyranny. And as Cummins observed, the same rationale applies to business: allowing massive power to concentrate in the hands of a few is more likely to lead to tyranny than to a free market.³

In the interconnected world in which we dwell today, technology has collapsed old hierarchies and institutions. More and more, what American workers and consumers do on a daily basis depends upon and flows through giant multinational corporations. The effects of conduct happening in the business realm are not limited to a single business-customer relationship. They ripple throughout the economy and, therefore, ripple throughout our political economy, our government, and our culture. Here, the public-private lines begin to blur. One cannot simply ignore half of the power flows in society and claim that, because in theory consumers could take their business elsewhere, there’s no problem to be seen. That is not governance for the common good in any meaningful sense. On the contrary, it is an abdication of the oath that our elected leaders take to serve the American people.

Critiques along these lines are, of course, mainstays of progressive scholarship. And so, unsurprisingly, during her tenure in office, Lina Khan, chairwoman of the FTC under President Biden, attracted a small but vocal coterie of conservative admirers.⁴ Young conservatives, like young progressives, were drawn to her message that concentrated corporate power all across the economy, but especially in fields like technology and health care, was leaving ordinary people out in the cold. There is some truth in this.

That being said, in my experience, the “Khan-servative” narrative was dramatically overblown and, in many ways, cravenly political. During the Biden administration, I worked on antitrust policy with the Senate Judiciary Committee, which proved in many ways to be a frustrating experience. There was a lot of interest around antitrust legislation, and there were probably some bills that could have advanced. But Democrats were largely uninterested in extending olive branches to the Right. Instead, progressives frequently communicated some version of the following sentiment to antitrust-curious conservatives: Hey, you’re free to come along and join our project, but we’re not interested in your feedback. We’re not interested in your input. This pattern played out time and again in legislative battles; conservatives would chime in with tentative interest—I like the general thrust of this bill, but I have some real concerns with how it’s implemented. Here’s my red line; here’s how I think you can improve it. But those conservatives found themselves rebuffed. The message from progressives was: if you want to support us, that’s fine, but we’re not interested in actually hearing what you think.

Among younger conservatives tempted to throw in with the neo-Brandeisian project, the real appeal was due largely to the lack of any conservative alternative. No one had really laid out a vision for what it looks like to be a conservative supporting strong antitrust enforcement. What can we agree on and where do we disagree? As I see it, the besetting vice of the Biden FTC was its disregard for that other facet of conservative public thought: the rule of law. On this issue, we can begin to see the outlines of a genuinely conservative antitrust alternative.⁵

Conservative Antitrust, Done Right

In many ways, the FTC under President Biden adopted a “hermeneutic of suspicion” toward merger agreements across the board. When I served in private practice between leaving the Senate and joining the FTC as a Commissioner, I saw this problem firsthand. I’d had private sector attorneys calling my office and telling me stories of how they represented parties with a merger that really had no issues, legally speaking, and where no one ever expected the merger would attract attention. And yet, those parties would get a second request from the FTC, essentially, a subpoena from the government seeking much more information about the proposed deal and telegraphing that the deal has serious legal concerns.

So, the lawyers for the merging parties would call the FTC and ask for an explanation, seeking information on the theory of competitive harm the FTC was entertaining. FTC staff, repeatedly, had no idea. As it turned out, those second requests, as the file metadata indicated, hadn’t even gone through standard procedures. Instead, they’d been edited by political appointees, without input from the teams directly handling the matter, minutes before going out the door. These and other practices did serious damage to the FTC’s credibility, giving the impression that the agency wasn’t conducting investigations on a good faith basis, based on the merits. Instead, political appointees were intervening at the eleventh hour to infect the process with reflexive anti-business bias.

This is not the law and never has been. It’s not illegal for a company to be big, or even to have a monopoly obtained on the merits. What the law proscribes is acting in an exclusionary way to maintain or create the monopoly. Because that is the law, conservatives must resist any temptation to circumvent the law and use process to punish or reward disfavored individuals or groups.

Accordingly, in charting the course for a better antitrust future, conservatives must avoid two errors which are mirror images of each other. The neo-Brandeisians, ascendant under President Biden, and the longtime “Chicago School” of antitrust (under)enforcement are, essen­tially, two sides of the same coin. Both schools of thought rely on exces­sive deference to a single side in an antitrust case; they just differ on which side that is. The neo-Brandeisian position, at times, seems cali­brated to ensure that the government always wins. And the approach of the Chicago School, at times, seems like it’s rigged so that businesses always win. Both of these approaches are excessively politicized. To be sure, to a certain extent, people complain about politicized law enforcement all the time. Policy is always going to be somewhat political, and the etymology explains why. But when ordinary people talk about polit­icization in a pejorative sense, what they’re getting at is the sense that it’s unfair or rigged. Stacking the deck in favor of the government, or in favor of private business, is fundamentally unfair—and not conservative.

A neutral “down the middle” approach to antitrust enforcement takes a different tack. It begins from the position that antitrust enforcers are going to apply the text as it was written by Congress, not always assuming that businesses are acting innocently, but also not assuming that they’re always acting malevolently. Rather, antitrust enforcement calls for case-by-case judgments, on the basis of the evaluative standards spelled out in the law, instead of a one-size-fits-all approach.

Congress passed the first antitrust laws for a reason—and has passed more over time. The history of American antitrust laws has been an attempt to give them greater teeth, in the face of pushback from the courts: Congress keeps strengthening the antitrust laws, courts keep watering them down.⁶ For a conservative, this is ironic. Ostensibly, conservatives support textualism and originalism and have made them the norm across legal disciplines—except for antitrust law. Notwithstanding the actual text of the statutes and legislative history, antitrust law has trended toward underenforcement, because underenforcement was long the preferred policy and economic outcome.

To be truly faithful to the text of the antitrust laws, however, enforcers must return to following Congress’s direction, evincing an appropriate concern about underdeterrence and underenforcement, not just the reverse. This will be a necessarily imperfect process. Many progressives in the antitrust world, animated by the concern to stop every single anticompetitive deal, seem happy enough simply to stop every deal. That is a mistake. We must go down a middle path, as trying as that may seem.

This will attract criticism, of course. Progressives will claim that this is simply a fig leaf to allow companies to do business as usual; libertarian‑minded conservatives will complain that it’s economically radical. And yet, that is what a neutral and fair application of the law looks like. That’s what the rule of law looks like. That’s what sound enforcement looks like.

Antitrust and the Way Ahead

Today, America’s antitrust future looks brighter than it has in generations. After long decades of underenforcement, both major political parties have found the will to take up these longstanding laws. But conservatives, as leaders and voters committed to values beyond simple partisan advantage, cannot rest content with making antitrust policy into a political weapon, useful for rewarding friends and punishing enemies. Stewarding the American constitutional tradition—and reliably serving the public whose laws we execute—means that how we enforce the antitrust laws matters about as much as whether we enforce them.

Placing the accent on the rule of law, on the text and history that underpin the antitrust laws Congress passed and the president signed, in response to widespread public support, offers a path forward beyond antitrust’s politicization. Instead of an antitrust policy retrofitted to the whims of a particular moment, this is an antitrust policy that can endure for generations to come. If indeed antitrust’s hour has come, let it be an hour that finds us faithful to our mission.

This article originally appeared in American Affairs Volume IX, Number 4 (Winter 2025): 3–10.

Notes