The Role of the State

John Kwoka writes that the antitrust agencies under President Joe Biden made thoughtful revisions to the Merger Guidelines that will strengthen enforcement and competition. However, they still fall short in their treatment of the structural presumption and efficiencies defense, where both economics and the law provide grounds for strengthening. Current practices strain agency resources and permit anticompetitive mergers and acquisitions. The next administration must revisit these two issues.

Over the past four years, antitrust scrutiny has increasingly focused on large technology firms. Ginger Zhe Jin and Liad Wagman discuss the complexities of antitrust enforcement and policy in the digital age, highlighting the challenges of promoting innovation while fostering competition, and areas where consumer protection and antitrust are colliding or are set to collide. To that end, the authors identify several key questions that the next administration of the United States should address to better delineate between legal and illegal competitive practices in the digital age, with implications for the broader economy.

Steven C. Salop recommends that the next presidential administration continue to focus competition policy on protecting against adverse labor market outcomes. He suggests several policies the administration might pursue to achieve these benefits.

Herbert Hovenkamp applauds the Biden administration’s antitrust authorities for intervening in labor markets and more robustly challenging mergers between competitors. However, the next administration should clarify in its guidance that the objective of stronger antitrust enforcement must focus on lowering prices, increasing output, and removing any restraints on innovation.

The United States power grid is increasingly strained by the surging electricity demand driven by the AI boom. Efforts to modernize the power infrastructure are unlikely to keep pace with the rising demand in the coming years. Barak and Eli Orbach explore why competition in AI markets may create an electricity demand shock, examine the associated social costs, and offer several policy recommendations.

Johannes Fritz and Tommaso Giardini examine the state of AI rulemaking around the world and find that, despite global alignment on principles, execution at the national level diverges on three important metrics. The risk is fragmentation in AI as firms choose to exclude entire markets rather than navigate the intricacies of compliance in different regions.

Dylan Gyauch-Lewis reviews the Supreme Court’s recent spate of rulings redefining administrative law and how they threaten the National Labor Relations Board’s authority.

James Tierney finds that Loper Bright, the latest ruling in a rash of Supreme Court cases undermining the Securities and Exchange Commission’s authority, will limit the agency’s intervention in the market and produce uncertainty for businesses as they guess which rules will survive the judicial review.

Steve Salop explores the basis for warranting strong remedies in the Google Search case and the set of remedies Judge Amit Mehta might consider for restoring competition in the search market by jump-starting the competitive process.

Douglas Ross writes that for most of its history, the Federal Trade Commission did not rely on the Chevron doctrine to enforce its mandate to prohibit “unfair methods of competition” and “unfair or deceptive acts or practices.” Thus, Loper Bright will not significantly alter the FTC’s historical role in regulating competition. However, the Chevron doctrine could have been a useful ally to the current FTC, which under Chair Lina Khan has pursued more ambitious rulemaking, such as to ban noncompete clauses. Without the Chevron doctrine, the FTC will face a more arduous path to defending its new rules as they are challenged in the courts.