John B. Kirkwood writes that the future of Neo-Brandeisian movement must focus on three fronts: refining its approach to the consumer welfare standard, which it initially rejected but then used when in power; continuing to influence the monopolization cases against Big Tech and the Federal Trade Commission’s non-compete rule; and configuring the principles to govern competition in the economy’s next great tech frontier: artificial intelligence.
This article is part of a series that explores where the Anti-Monopoly or Neo-Brandeisian movement goes next: What are the academic questions and problems scholars affiliated with the movement have struggled to answer and need to focus on? What policies have the movement promoted for which the case still needs to be made? What policies has it neglected so far that it should champion? How does it continue as a political movement? You can read the other contributions here as they are published.
We encourage our readers to submit their own opinions on the future of the Neo-Brandeisian movement. Pitches can be sent to Promarket@chicagobooth.edu
Lina Khan, former chair of the Federal Trade Commission, and Jonathan Kanter, former head of the Antitrust Division of the Department of Justice, no longer run federal enforcement agencies, but along with Tim Wu of Columbia, they are still the leaders of the Neo-Brandeisian movement. The question for them is where does the movement go now? What should its priorities be?
In this article, I suggest that the Neo-Brandeisians must adopt three major priorities. First, they should reformulate their position on the goals of the antitrust laws. Their original position, an attack on the consumer welfare standard, was central to their identity, but it generated enormous pushback and they need to respond to their critics and suggest a better approach.
Second, they should do whatever they can to support the pathbreaking initiatives they have already launched. Their greatest legacies—what people will most remember them for—are the monopolization cases they prosecuted against the tech giants and the non-compete rule the FTC issued. These matters are so significant that the Neo-Brandeisians should use whatever influence they can exert as outsiders to bring the matters to a successful conclusion. Finally, they should develop a comprehensive approach to the competition issues posed by artificial intelligence, arguably the most important determinant of the future of the economy.
The Neo-Brandeisians generated considerable attention by asserting, contrary to the conventional wisdom, that the purpose of antitrust law was not to promote consumer welfare but to preserve competition, a concept they saw as so broad that it not only protected consumers but also workers, small businesses, and the political process. In their view, moreover, protecting small business and the political process was at least as important as benefiting consumers. As a result, the Neo-Brandeisians wanted to challenge large mergers even when the mergers enhanced consumer welfare. This perspective was highly unpopular, however, and the Neo-Brandeisians never actually implemented it. They never deliberately or explicitly took enforcement actions that threatened to harm consumers in order to pursue social values. Given their unwillingness to implement their normative position, the Neo-Brandeisians should reformulate it.
I suggest that the Neo-Brandeisians adopt the goal that my research indicates is the aim of antitrust law: preventing rivalry-reducing conduct that exploits consumers or vulnerable suppliers like workers. The voluminous legislative history does not define competition and never mentions consumer welfare, but it repeatedly expresses Congress’ opposition to trusts and monopolies because they reduced rivalry in the marketplace in order to raise prices or lower payments to suppliers and thereby increase their own profits. Congress regarded such exploitation as deeply unfair, akin to robbery or extortion. In contemporary terms, rivalry-reducing conduct that enables such theft creates market power without offsetting justification. Stopping such conduct is the fundamental goal of antitrust law and the Neo-Brandeisians should embrace it.
Their second highest priority is to support the major enforcement initiatives they have already authorized. Under Kanter and Khan, the DOJ and FTC have filed or maintained lawsuits against Amazon, Apple, Facebook (Meta), Google, and Microsoft, accusing them of monopolization or making illegal acquisitions. The FTC sought to block Microsoft’s acquisition of Activision and unwind Facebook’s purchases of Instagram and WhatsApp, and in 2023 the FTC sued Amazon for monopolizing the online marketplace. The DOJ filed three monopolization actions against the tech giants: one accuses Google of monopolizing general search services and search text advertising; a second alleges that Google monopolized the buying and selling of digital ads; and a third claims that Apple monopolized the sale of smartphones. None of these cases has concluded, though the presiding judge sided with the DOJ in the first case.
In addition, under Khan, for the first time in the FTC’s 110-year history, the agency issued a major competition rule. This rule, with few exceptions, bans non-compete agreements throughout the economy. Although a federal district court enjoined the rule, the FTC has a chance to resurrect it in the Court of Appeals. Here, too, the FTC’s work is unfinished.
Because they are out of power, the Neo-Brandeisians cannot control the litigation of the monopolization cases or the appeal of the non-compete rule. But they can influence these matters indirectly through the many tools available to them: amicus briefs, law review articles, conference presentations, op-eds, blog posts, and speeches. In each instance, the goal should be to emphasize the strengths of the matter and shore up its weaknesses. Moreover, the Neo-Brandeisians should focus on remedies, since the impact of a case, in the short run and long run, will depend on the relief ordered. Some of the remedial issues are tricky. For example, because of its monopoly in internet search, should Google be required to divest Android, which it currently licenses for free? If someone buys it, won’t they have to charge for it, raising the prices of Android phones?
The Neo-Brandeisians’ third priority is to develop an enforcement strategy for AI. At present, the principal competition issues surrounding AI relate to the familiar twin targets of antitrust enforcement: collusion and exclusion. The collusion issue is whether pricing algorithms created by AI are devices for fixing prices. Some AI firms have already been marketing algorithms to apartment building owners and in at least one case that has resulted in an antitrust lawsuit. The AI firms argue that their algorithms enable landlords to price more competitively. In many cases, they say, their algorithms cause landlords to lower rents. Renters contend that the algorithms—and the underlying exchange of confidential rental data—enable landlords to collude more effectively and raise rents. Antitrust law needs criteria for distinguishing between procompetitive and anticompetitive AI pricing algorithms. One project for the Neo-Brandeisians is to help fashion such criteria.
The exclusion issue is whether the Big Tech firms, because of their resources and scale, have effectively excluded smaller firms from the race to develop superior AI models. To even the playing field, Khan has proposed that the Big Tech firms be required to make certain features of their models public, allowing smaller firms to piggyback on their advances. Such compulsory disclosure may be counterproductive, however, since it may reduce the incentives of the Big Tech firms to innovate. Moreover, so many smaller firms are currently competing in the race to innovate that there may be no need to require the big firms to help them. Firms like Open AI, Inflection AI, XAI, Anthropic, Arm, and DeepSeek may be progressing well enough on their own. Indeed, DeepSeek shocked the world with its new AI model, which appeared to be as good as the latest big firm models but produced at a fraction of the cost. But whether or not Khan’s proposal is desirable, the Neo-Brandeisians could make an important contribution by formulating a comprehensive approach to the competition issues posed by AI.
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