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In the third entry of The Prompt series, our contributors commented on recent speeches relating to antitrust:
"In recent months, we’ve heard speeches announcing “America First antitrust” or “hillbilly antitrust," as well as remarks that make the “conservative” case for antitrust enforcement. What should we take from these speeches?"
Our contributors had a chance to choose from one of three options to answer:
A. Something new can be gleaned.
B. Not much, same beer in new bottles.
C. Let’s wait until we start seeing more cases.
The Prompt
Answering antitrust challenges one question at a time
The Chamber has assembled a range of preeminent experts in the field of antitrust from across a wide political spectrum to offer timely views on key questions of antitrust law and policy. This group brings together senior enforcers spanning seven administrations, from both the Antitrust Division at the Department of Justice and the Federal Trade Commission.
Three contributors believed something new can be gleaned from these speeches...
“Something new can be gleaned. While time will tell, early returns suggest that the current administration intends to take an aggressive approach to enforcement. And it is not merely speeches—the agencies announced (among other things) that they intend to use the 2023 merger guidelines and will focus on labor harms. The agencies have also continued to litigate the "Big Tech" cases and have brought several new merger challenges. These actions suggest that the agencies will not shy away from litigation and intend to pursue an enforcement agenda that shares at least some similarities with the prior administration.”
“Something new can be gleaned. That is, the terms "America First antitrust" and "hillbilly antitrust” — along with “the Trump-Vance FTC” show that new agency leadership is hopeless at branding. Hopefully, they’ll be better than their immediate predecessors at enforcing the antitrust laws without fear or favor.”
"I think (A) is probably right, but there is some of (B) and (C) in there as well. There is a subtext under these new branches of thought that pushes for a reexamination of established norms around America’s role in antitrust and propagating American views regarding the discipline (particularly “America First” Antitrust). That has the capacity to undermine our role in multilateral bodies like ICN and OECD. The question is: if that happens, will it matter to American interests?”
Three more contributors believed there was not much to it, same beer in new bottles...
“The speeches are just another indication that Humphrey's Executor is dead. Much like the last administration, the current leadership does not have a coherent theory of antitrust to match with the populist slogans. What has changed in that populism of the left has been replaced with populism of the right. There is some overlap but only some. When populists go after conduct using traditional theories, they do relatively well. We learned from the last administration that when the populists identify novel theories that seem to lack intellectual consistency and robustness, they do less well. The current leadership teams across the agencies are strong and perhaps much of the speeches are talk to please the boss. The Trump antitrust leadership teams are full of highly accomplished and experienced people. These are challenging times and perhaps they are doing the best they can to navigate very tricky multiple goals.”
“I would tentatively answer (B). I reject (A); there is no intellectual content in such 'new' forms of antitrust. Option (C) might be a possible correct response only if 'America First antitrust' is characterized by the enforcement agencies as a form of analysis that is consistent with consumer welfare-driven antitrust. It is possible, for example, that merger policy will start to allow more transactions that are not problematic to proceed without delay (something hinted at in the announced restoration of early termination). It would be helpful if the 2023 Merger Guidelines were tweaked in a way to allow greater recognition of efficiencies (including perhaps some 'out of market' efficiencies). Time will tell.”
“I go with Answer (B) – it seems mostly like rhetoric for the target audience vs. a real competition principle or affirmative agenda. I expect that 90% of enforcement will still be traditional. And new administration will look to cite to these ideas as mere window-dressing and red meat to non-antitrust crowd.”
A majority (12) said, "lets wait until we start seeing more cases"...
“Let's see if the Trump 2.0 enforcers focus antitrust on issues that hit consumers and workers the hardest. If not, there is a real risk that far left antitrust populism will be succeeded by far right populism, which largely leaves them out of the picture.”
“The progressives in the Democrat Party and the populists in the Republican Party share the goals of (1) elevating the interests of labor and small business and (2) punishing large tech companies. For this reason, one can see parallels between the Neo-Brandeisian and America First antitrust approaches -- at least as articulated. I'm eager to see how much is window dressing, and to what extent the cases brought under Trump 2.0 align with, or diverge from, the Kanter/Khan era.”
“We need to see the results of investigations and enforcement to be able to gauge whether this is a departure from the prior administration, a return to the enforcement in the first Trump Administration, or something different. We have too few data points to know whether the rhetoric will manifest in a different level of enforcement or enforcement priorities.”
“Let’s wait and see what cases the agencies bring. While the public statements indicate that the administration plans to bring cases and to assert aggressive theories in some situations, it is less clear how that will apply to specific cases.”
“The Trump White House seems to expect frequent professions of loyalty from political appointees and much of the antitrust rhetoric meets that description. We need to wait and see what this means in practice for actual cases, as agency leadership has also expressed an intention to follow case law.”
“Let’s wait to see what they actually do as to case selection. The enforcement decisions so far have been pretty mainstream – and sometimes a return to mainstream, reversing an edgy enforcement action brought during the Biden Administration. (See, e.g., the RP case against Pepsico.) But yes, some of the rhetoric suggests the possibility of greater alignment with the Biden team, including as to possible openness to considerations other than consumer welfare. We don’t really know yet.”
“Who knows what the new Administration’s policy is? I don’t, but then again I don’t think they do either. I’m as anti-elitist as they come, but it seems to me that it is a good idea to have someone who is proficient and experienced in antitrust leading the agencies. At times over the last 80 years that has not been the case, and I’m starting to wonder if that is the case now. The agencies’ apparent rejection of the consumer welfare standard and a retreat to the incoherent, subjective approach that predominated from the mid-1910s until the mid-1970s seems to be borne out of ignorance of history and a lack of familiarity with the problems businesses (really all market participants) face in trying to comply with the antitrust laws. For example, if Gail Slater were Bill Baxter’s student at Stanford in the late 1970s, she would receive an “F” for her recent comment that 'fairness' is at the heart of antitrust enforcement policy – when he was Reagan’s AAG, he was highly derisive of anyone who justified their antitrust policy on the basis of 'fairness.' While it is unclear what 'hillbilly antitrust' is (at least beyond old Khan/Kanter wine in new Ferguson/Slater bottles), it is NOT what a Reaganite would characterize as 'conservative' antitrust. In the 1980s, Reagan’s policy was not driven by conservative (as opposed to liberal/progressive) political/social policies; rather, it was driven by the view that antitrust enforcement was at base a general regulatory regime that is best designed and implemented to deter and rectify private conduct that systemically and on balance is likely to undermine the market’s tendency to maximize total surplus (i.e., the original meaning of 'consumer welfare'). To realize that view, we were focused on articulating and enforcing rules that focused exclusively on the economic (or consumer welfare) effect of conduct AND that attempted to minimize the regulatory cost (including expected Type I and Type II errors) of that enforcement. Much of our efforts during that time involved explaining why previous policies designed to further broader, more amorphous concepts of 'competition' or worse 'fair competition' (e.g., the preservation of local political control or of “small traders and worthy men”) were too often counterproductive to promoting free-market competition and consumer welfare. That is the fundamental lesson of Bork’s The Antitrust Paradox. As we would often say, the market does not have to work perfectly in order to work better than government (whether in the form of industry-specific regulation or more general antitrust enforcement). Apparently the current crew views private-sector bigness to be just as dangerous and threatening as governmental bigness; that is utterly at odds with what we would have seen as 'conservative' antitrust enforcement policy in the 1980s. Of course, the foregoing is a reaction to the administration’s rhetoric. It is still too early to know how this rhetoric translates in practice. While their rhetoric is very interventionist and implicitly hostile to free-market capitalism, in the real world they will still have to contend with 50 years of legal precedent as well as the push-back from the President’s constituency in the business world. If their rhetoric is focused on online platforms and/or concerns about progressive political priorities such as DEI and will not be extended economy wide, maybe the current enforcers won’t do too much damage. Time will tell.”
“Let’s wait until we start seeing some cases. That does not mean I am particularly sanguine about the Administration’s antitrust enforcement intent or that there is nothing to glean from these speeches. It would be foolish to ignore them. They reference a 'realignment' of the Republican Party economic agenda to one that is more populist than traditionally conservative, bemoan 'decades' of alleged under-enforcement, state that 'big is bad,' and call for less reliance on economic analysis and less consideration of efficiencies in mergers. The point of the speeches seems to be to build support for a more interventionist enforcement policy than one might expect from a Republican administration, including possibly Trump’s first administration. The speeches also highlight areas where we might expect the Trump Administration to focus its enforcement resources—namely, in the healthcare industry, against big tech, in the agricultural sector, and against agreements that restrict labor mobility and compensation.”
“New antitrust leaders (certainly including Biden's) tend to package their policy goals in catchy new terms, but if I were advising a client about what these speeches mean, I would say (C), let's wait and see what cases the agencies actually bring. But the speeches do raise a real concern. The principles that supposedly underlie 'America First' antitrust as set out in AAG Slater's Notre Dame speech -- protecting individual liberty against government and corporate tyranny, respecting textualism and precedent, and avoiding undue regulation -- are all unobjectionable, even laudable. But as articulated, these principles give the agencies free rein to pursue whatever policies they wish, untethered from fundamental grounding principles of law or economics. How will DOJ decide which corporate 'tyranny' to challenge? Not much said, other than references to tech platforms that limit "free expression" (on January 6?). Which antitrust precedent will guide antitrust enforcement? 'I have an open mind.' And what does it mean to favor 'litigation over regulation?' The door is seemingly left open for the Trump administration's antitrust agencies to replace their predecessors' formal regulations with their own brand of enforcement-driven regulation of a wide range of issues, such as tech platform content moderation.”
“Hard to tell from the rhetoric so far, and talk is cheap. I am waiting to see what cases the antitrust agencies bring -- or fail to bring -- under Trump 2.0.”
“C: America First antitrust, 'New Right' antitrust is something new, but we are still learning its contours. Recent speeches are starting to shed some light, but the types of cases 'America First antitrust' enforcers bring will more clearly define the doctrine. “
Two contributors did not choose any of the options and had something else to say...
“A little bit of each. In some respects it is a continuation of certain Biden policies, which also were a continuation of certain Trump 1 policies. On the other hand, there seems to be a greater emphasis on protecting 'the little guy.' Time to define with more precision exactly what it all means. Based on the speeches and limited set of agency actions, however, it seems to mean speedier clearance of matters that are not unlawful, active enforcement generally, and more aggressive enforcement in matters that implicate content moderation, energy, and DEI.”
“None of the above. Both agencies face severe resources limitations, have lost experienced and talented staff, and have substantial dockets. Unless and until the leadership deals with these challenges, the resource crunch – and not their stated agenda – will define their legacy.”
Read responses to more prompts and learn more about The Prompt series here.
