Daniel Francis reviews the evolutionary and revolutionary dimensions of the Biden administration’s antitrust work, and argues that these two projects have been in deep tension. He concludes that the administration’s evolutionary work within the welfarist paradigm has generated some important successes, but that the revolutionary effort to restore a pre-welfarist vision of antitrust has failed on its own terms — and, in failing, has left welfarism all the stronger.
This article is part of a symposium studying the “paradigm shift” in antitrust scholarship and policy. Inspired by philosopher Thomas Kuhn’s work on progress in science, this symposium asks if and how the tenures of Federal Trade Commission Chair Lina Khan, Department of Justice Assistant Attorney General Jonathan Kanter, and scholarship associated with the antimonopoly or Neo-Brandeisian movement has changed how we understand the priorities of antitrust enforcement, evidence of anticompetitive harm, and the study and enforcement of antitrust more broadly. Over the next few days, we will publish contributions from Tim Brennan, Eleanor Fox, Daniel Francis, Andrew Gavil, Richard Markovits, John Mayo, Steven Salop, and Randy Stutz. You can read the previously published articles here. ProMarket encourages our readers to respond to the symposium and the ideas these scholars put forth with their own. Responses can be sent to ProMarket@chicagobooth.edu.
For much of the last four years, the Biden administration has explicitly pursued an antitrust revolution. Agency leaders repeatedly declared a sharp break from the last four decades: the period of modern, or “consumer welfare,” antitrust. Press coverage of this revolution and its leadership has generally been positive, including from many general-interest outlets—though not without exception.
For better or worse, then, as economist Carl Shapiro put it a few years ago: “antitrust is sexy again.” The Neo-Brandeisian movement formerly derided as “hipster antitrust” has now enjoyed a presidential term at the pinnacle of the antitrust enterprise. But: have we really had an antitrust revolution? Has the “paradigm” changed? And should the incoming second Trump Administration continue or reverse the revolutionary project?
I’m going to suggest that the Biden administration’s antitrust enforcers have been engaged in two projects simultaneously. The first is an evolutionary project within modern welfarism: that is, the approach that sees antitrust as an effort to protect consumers (and other market participants, like workers) from concrete economic harms like higher prices, lower wages, reduced output, lower quality, and lost innovation. This project built directly on the work of the Trump and Obama administration enforcers. But the second is a revolutionary project in explicit opposition to the welfarist paradigm, and it flows from broader concerns about our regulatory culture, inequality, and domination. And while those two projects have sometimes pointed in the same direction—for example, when a large business increases market power through practices that harm consumers—they are not at all the same, and they are as likely to conflict as to coincide.
The first, evolutionary project has been mainly visible in the administration’s choice of litigated enforcement actions. And it has led to real, significant, and valuable successes. It has resulted in enforcement outcomes that have benefited consumers and workers; yielded valuable precedents that have clarified some important facets of antitrust; and demonstrated the flexibility and power of welfarism. In particular, the agencies have achieved some particularly important litigation wins. Much credit is due here to the current generation of leaders (political and career alike), and to the teams of lawyers and economists who have tirelessly driven the cases forward.
But I think the second project—the revolutionary one, which has been mainly visible in rhetoric and in some agency actions outside of litigation—has not succeeded. As the Biden administration comes to an end, not only is antitrust’s welfare paradigm intact: it has not even been seriously challenged. Protecting consumers, workers, and other market participants from concrete economic harms remains the most appealing way to understand the antitrust project. In fact, in the end, no coherent alternative vision was ever really offered.
Moreover, these two projects have been in a complicated relationship. I think the second project has somewhat undermined the first one: discrediting its foundations, obscuring its value, and misleading the public and politicians about what antitrust can plausibly do. But, at the same time, the political purchase of the revolutionary project has also helped to rebalance and invigorate welfarism. The result is a mixed legacy. The nonwelfarist revolution never really came, but the music of revolution has inflected welfarism’s trajectory all the same—even if that music has become softer in recent months.
So I’ll suggest that the incoming administration has a clear path ahead. It should embrace the trend that runs through the enforcement work of the Biden enforcers and that of their predecessors in the first Trump and Obama administrations: challenging or remedying practices and transactions that threaten consumers, workers, and other market participants with concrete economic harms. It should aim for a flexible, sensitive, balanced, and vigorous welfarism. (For what it’s worth: I’d have recommended the same thing to an incoming Harris administration.) But the talk of a nonwelfarist revolution should come to an end, at least until there is an appealing alternative. There is plenty of life in the paradigm we have.
Some Antitrust History
Making sense of the antitrust revolution requires a little history. In the 1960s, antitrust looked very different. Practices and transactions were repeatedly condemned without much regard to whether they would harm or benefit consumers. The Supreme Court expressly valorized a particular economic “way of life,” protected small businesses even at the expense of higher prices, prioritized dealer independence over consumers’ pocketbooks, and declined to “ramble through the wilds of economic theory” to distinguish harmful from beneficial practices.
But things changed in the 1970s and 1980s. During this period, in what is often loosely called the “Chicago Revolution,” antitrust was reformed to focus on welfare impacts: that is, whether practices or transactions would cause harm, including through effects on price, quality, output, or innovation. The reformation had many causes, including dissatisfaction with the excesses of the 1960s, a national deregulatory turn, and a conservative shift across the government and judiciary.
The consumer-welfare model was sometimes found traveling along with a set of indulgent and controversial views about markets. These included, for example, the belief that markets almost always self-correct; that government intervention is almost always worse than private monopoly; and that antitrust should focus almost entirely on the most flagrant forms of wrongdoing, like price-fixing. These ideas certainly got some traction. But they were never universally accepted, and they were the subject of an extensive “Post-Chicago” critical literature, led by Eleanor Fox, Jon Baker, Steve Salop, Carl Shapiro, and many others. And, as many Post-Chicago scholars pointed out, nothing in welfarism required accepting these ideas.
The welfarist model gathered widespread support among those professionally concerned with antitrust. From the 1980s to the 2010s, protecting market participants from concrete economic harms proved a popular bipartisan goal. Enforcement philosophies differed, sometimes significantly, and activity levels and policy priorities varied over time. But welfarism reigned, despite disagreement about which practices were likely to be harmful and why.
The Rise of Neo-Brandeis
The Neo-Brandeisian (or “antimonopoly”) movement rose to prominence in opposition to this paradigm. The movement’s agenda, at least as I read it, blended two different strands of thought. The first was a direct attack on welfarist antitrust, on the basis that it was a betrayal of Congressional intent, and that it excluded core considerations like the social value of a “competitive” process, the value of small businesses, worker and trader independence, and various kinds of equity. As one formulation of the antimonopoly credo put it: “It is not true that ‘Congress designed the Sherman Act as a “consumer welfare prescription.”’” And the second strand picked up the Post-Chicago critique, emphasizing the pro-defendant excesses of the courts.
Neither of these strands was wholly novel. The first strand largely reiterated the older positions that antitrust welfarism had displaced, inviting the old objections without clearly offering new responses. And the second strand largely echoed existing Post-Chicago criticisms. But while the message was not new, it was well timed. Rising populism, concern about inequality and monopoly, and animus toward Big Tech were all on the secular rise through the century’s second decade. And they were no longer issues of the left alone. Conservatives expressed concern about corporate power, economic liberty, and Big Tech. The Neo-Brandeisian message resonated: and when President Biden took office, Neo-Brandeisians assumed leading roles.
The incoming leaders repeatedly distanced themselves from antitrust’s “consumer welfare” era, despite high levels of antitrust enforcement under the Trump Administration. In April 2022, for example, Department of Justice Assistant Attorney General Jonathan Kanter announced: “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.” Federal Trade Commission Chair Lina Khan criticized “decades of lax antitrust enforcement and competition policy.” Presidential advisor Tim Wu, reflecting on the administration’s work, described an effort to “turn the battleship” and “reverse a 40-year trend” in antitrust. This resonated with themes of antimonopolist writing that attacked consumer-welfarism as resting on a “bed of nonsense,” and which saw it as “explicitly rejected” by the new enforcers.
Modern antitrust’s habit of weighing welfare effects came in for specific criticism. Kanter warned against turning antitrust into a “narrow technical exercise” of “measuring welfare tradeoffs,” and argued that the nation’s merger guidelines needed a “major revision” in part to better reflect the Supreme Court’s—famously nonwelfarist—merger cases. And Khan specifically criticized the welfarist “notion that efficiencies might justify a merger that was otherwise illegal.” Leaders repeatedly argued that agencies should focus instead on whether “competition” or the “competitive process” was impaired in a broader sense.
The Evolutionary Scorecard: Much to Celebrate
Considering the Biden administration as an evolutionary enforcer, building on the work of its predecessors, I think the record is pretty solid, with plenty to celebrate.
The headline point here is that the agencies have achieved much through litigation. There have been plenty of “traditional” enforcement successes: horizontal mergers like IQVIA/Propel and JetBlue/Spirit, competitor collaborations like American/JetBlue, and continued success for the FTC’s hospital merger program with Novant/CHS.
There have also been successful efforts to develop the law, including in complex areas where they have not been afraid to litigate. A campaign to invigorate vertical merger enforcement survived failures in United/Change and Microsoft/Activision, and succeeded in Illumina/Grail. (Some abandonments, like Nvidia/Arm, belong on the honor roll too.) In successfully challenging Penguin Random House/Simon & Schuster, the DOJ elicited valuable confirmation that harm in a buyer market for labor services could be the sole ground of a merger’s illegality. And the Jindal decision clarified the flat illegality, and criminality, of wage-fixing, at least in principle. These are meaningful contributions to antitrust’s bank of precedents.
The agencies have also been active tech enforcers, driving forward the cases against Google and Meta filed by the Trump Administration—to a liability verdict in the Google Search case and a summary-judgment win in Meta—and filing additional actions. The newer cases have been more aggressive and controversial, but they too seem generally framed in welfarist terms even if some of them test the boundaries of the law.
To be sure, no administration gets a perfect score. The two “Big Tech” merger cases—Meta/Within and Microsoft/Activision—were losses. (The latter remains on appeal.) On some measures the merger enforcement rate has been ordinary: as Ryan Quillian and Pegah Nabili have recently pointed out, “in 2023 the agencies issued the fewest second requests since 2009 and challenged the fewest transactions since 2005.” Win/loss rates in merger litigations chosen by the Neo-Brandeisian enforcers and litigated to verdict are OK, not stellar. The general shift away from consent decrees has meant the sacrifice of an important remedial tool. And the repeated failure to obtain convictions in criminal labor cases has been striking.
You can’t win them all. (We certainly didn’t during my time in government.) All things considered, this is a solid record of contribution to welfarist enforcement. It contains real successes, some flagship precedents, and some misses, like previous administrations. In underscoring the applicability of antitrust to labor markets, and the value of litigating tricky cases, it has confirmed the power and reach of welfarism. And in drawing attention to the costs of agency inaction (“false negatives”), it has helped to rebalance a discourse that often neglected them. Moreover, in multiple areas, this administration has set a new standard for communication—including public outreach as well as solicitations of external input—with the merger guidelines revision in particular offering a shining model of engagement by senior leadership.
But this is an unmistakably evolutionary record within welfarism. In focusing on vertical merger enforcement, the Biden administration continued a program that was visible in the previous administration’s attention to vertical deals, and particularly DOJ’s challenge to AT&T/Time Warner. In focusing on labor antitrust, the Biden administration built on previous administrations’ guidance, enforcement efforts, and workshops. The cases against Google and Meta were investigated and filed by the Trump administration, which made a clear priority of invigorating monopolization law. The focus on potential and nascent competition in merger enforcement followed cases like Steris/Synergy (Obama FTC), Mallinckrodt (Obama FTC), Illumina/Pacific Biosciences (Trump FTC), Facebook/Instagram/WhatsApp (Trump FTC), and Visa/Plaid (Trump DOJ), and thoughtful speeches by agency leaders. And so on.
The Revolutionary Scorecard: The Revolution That Never Came
But while the evolutionary work has been solid, the revolutionary project has not. In fact, setting aside rhetoric and political energy, I am not sure it ever even took real shape.
It might be unfair to completely set aside rhetoric and politics—both of which are undeniably changed—particularly if the objective has been to build a movement for long-term change. It is perfectly clear that antitrust is more prominent on the policy agenda than it has been in years. Thanks in part to the work and visibility of this administration’s enforcers, more people are thinking more creatively about antitrust, and more people are choosingto enter the field. An infusion of talent, energy, and imagination is flowing in, much of it drawn by the possibility of reform. That alone is a remarkable legacy, even if the high political profile brings serious dangers as well as benefits to the antitrust project. And it is also worth acknowledging that a single term isn’t much time to define and implement radical change.
But taken on its own terms—as an agenda for deep reform of the antitrust laws—the revolution has barely taken shape, let alone succeeded. Most obviously: the courts, and antitrust doctrine, are exactly as welfarist as they were four (or fourteen) years ago. The judicial eye remains stubbornly free of Neo-Brandeisian twinkle. Nor have the agencies really articulated, or attempted to apply, an alternative criterion for antitrust cases. Centering “competition” and the “competitive process” has just invited the question that the 1914 Congress raised but did not answer: what does “harm to competition” really mean? We long ago stopped believing that antitrust should just count the heads of rivals. So, if not welfare, then what?
To embrace nonwelfarist antitrust, even in part, we would have to accept that the agencies should sometimes challenge practices or transactions that make people better off overall, and should sometimes tolerate some that harm them. We’ve certainly done that in earlier phases of antitrust history, although not always in service of a clear or consistent goal. But it invites some obvious questions: when should we do this, and why,and how should we weigh welfare against the other things one might want to bring into the balance?
Flirting with nonwelfarism, while declining to really grapple with these tensions, has not just been unsatisfying: it has undermined the credibility and value of the antitrust project. Intimating that a merger might be challenged on “competitive process” grounds simply discourages harmless dealmaking—a recurrent concern. And there is a real long-term danger in encouraging the public and politicians to think that antitrust can and should do much more than remedy individual practices and transactions that threaten to cause concrete economic harms. As Bill Kovacic noted years ago, the periodic “deconcentration impulse” in antitrust probably owes more to symbolism and the cycles of public sentiment than it does to any realistic prospect that antitrust enforcement, however vigorous, could meaningfully deconcentrate the economy. Today, the threat of antitrust being “weaponized”—that is, put to service of nonwelfarist goals that one might, in perfect good faith, think desirable and important—is almost certainly greater than it was four years ago. That is a matter for real regret.
The uneasy relationship between evolution and revolution in the work of the Biden Administration can be seen clearly in the 2023 revision of the merger guidelines. The new document contains much that is valuable: I, like many others, felt there was room to update the guidelines. But, where the 2010 guidance had expressed a clear overriding concern with harm from increased market power, the 2023 guidelines are pointedly coy about the underlying point of merger review. They leave courts, businesses, and enforcers uncertain about how to consider and weigh welfare effects, market structure, and the “competitive process” against one another in a particular case. As the Congressional Research Service correctly points out, the final guidelines make reference to market power, “but the focus remains on ‘competition’ as an independent concept.” If this is the promised “major revision” of merger policy, and an effort to shift back toward the nonwelfarist Supreme Court cases of the ‘60s: what’s the new policy? Which cases are now “back”?
Other efforts at deep change have generally faltered. Khan’s apparent view that efficiencies ought not to weigh in favor of merger legality has not been captured in the new guidelines. The FTC’s noncompete ban picked two tough fights at once—one over whether the FTC has substantive competition rulemaking power and one over whether, if such a power exists, it permits a ban on most employee noncompetes—and the FTC seems likely to lose both. Suggestions of a revival of Robinson-Patman Act enforcement appear to have come to nothing. (The new Congress should repeal the darn thing for once and for all.)
And the “revolutionary” scorecard should also reflect the effect that casually caustic talk of decades of “failed” and “lax” enforcement has had on the staff who have been working hard to bring cases since long before antitrust was in the spotlight. This effect is hard to measure—although exoduses have been reported—but, at least at the FTC, there is nontrivial evidence of low confidence in senior leadership. It seems unlikely that staff can do their best work under those circumstances.
The Next Administration: After Neo-Brandeis
So I think the way ahead is clear. The incoming team should build on the welfarist work of the Biden and first Trump administrations in challenging (or otherwise remedying) behavior that threatens concrete economic harm to consumers, workers, and other market participants. In doing so they will be investing in the same basic paradigm that has defined the work of many successive administrations, Republican and Democrat alike. And they will benefit from the Biden team’s work to rebalance and invigorate it.
But the new administration should end the flirtation with nonwelfarism, as well as the tactic of dismissing antitrust’s modernity as an era of lapse and failure. The record is both more distinguished and more complicated than that. And there is value in ramping down the connection between antitrust and partisan politics. Antitrust enforcement’s best moments have usually been its least partisan ones. The project of protecting consumers and workers from harm is a shared one—whatever our other national disagreements—and antitrust’s credibility is a bipartisan inheritance.
Antitrust need not return to obscurity. A strong antitrust system is tremendously important: it deserves public appreciation, it should be a site for real critical reflection (including deep disagreement), and it needs serious and sustained Congressional support in the form of dollars and staffing. And, while we’re knocking on Congress’s door, there is room for modest but meaningful statutory reform, from cleaning up the scope of the FTC’s authority to litigate in district court or to seek equitable monetary relief on behalf of injured consumers, to tweaking the timing of HSR review to provide a little more time to review the tiny handful of most troubling mergers. (Full wishlist available on request!) All this within the consumer-welfare paradigm.
As the new administration arrives, the most attractive frame for antitrust enforcement and policy remains the one we have struggled to perfect for forty years: modern welfarism. Many of the Biden administration’s antitrust leaders have criticized that paradigm, but in doing so—and in litigating within its corners in the meantime, if sometimes toward its edges—they have underscored both its power and the lack of appealing alternatives. Welfarist antitrust has survived the challenge with its credibility not just intact but strengthened. The second Trump administration should aim to leave it stronger still.
Author Disclosure: Daniel Francis teaches antitrust at NYU School of Law. Between 2018 and 2021 he served in the Federal Trade Commission’s Bureau of Competition as Deputy Director, Associate Director for Digital Markets, and Senior Counsel. His research is funded only by NYU School of Law; his spouse is an antitrust attorney in private practice. Thanks to many friends for helpful comments, criticisms, and conversations. You can read our disclosure policy here.
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
