Recent Antitrust Enforcer Statements Signal New Administration’s Direction and Priorities

Assistant Attorney General Gail Slater of the Department of Justice, and Chairman Andrew Ferguson and Commissioner Mark Meador of the Federal Trade Commission, have each looked to the history of conservative voices to chart a path forward for antitrust enforcement in the second Trump Administration. Within the last three weeks, AAG Slater delivered remarks to the University of Notre Dame Law School, Chairman Ferguson delivered remarks at the International Competition Network Annual Conference, and Commissioner Meador shared his policy aims in an FTC paper and a speech to George Washington University. The enforcers emphasized the need for robust antitrust enforcement to break private monopolies and other anticompetitive arrangements. These enforcers appear to align on priorities, though differing slightly in methods, grounding their rationale in what they describe as traditional conservative values, while at the same time distancing themselves from previous Republican administrations which have emphasized anti-cartel policies and an otherwise preference for limited intervention in markets.

Conversative First Principles

The three enforcers emphasize that the bedrock foundation for successful antitrust enforcement begins with what they have described as conversative principles like limited government and protecting individual liberty from both tyrannical government and private power. Commissioner Meador puts it most bluntly: “Big is bad. When referring to the size of the government or political power, this statement is not only uncontroversial among conservatives, it is axiomatic.” AAG Slater’s statements echo that “antitrust enforcement serves the deep-rooted conservative goal of protecting individual liberty from the tyranny of coercive monopoly power.” Chairman Ferguson cautions against “government tyranny” as being “a danger to [society] flourishing” and as “the enemy of competition” but recognizes that private monopolies and cartels present that same danger. He emphasizes that it was “the Republican Party, the conservative party, that most effectively dealt with the problems presented by trusts,” with a Republican Senator, John Sherman, sponsoring the Act that bears his name.

Commissioner Meador—whose paper provides the most detail of the three—argues for a reminder of the distinction between conservative and libertarian views reflecting a laissez-faire approach (rejecting “the responsibilities of governance, and…turn[ing] a blind eye to efforts to accumulate private power at any cost”); a distinction that he says has been forgotten as the two entwined. He distances antitrust from the regulation that conservatives distrust, arguing that “[a]ntitrust is law enforcement, period. Full stop.” He goes so far as to call it in fact a “deregulatory tool” in its effort to prevent market failures. Commissioner Meador’s paper calls on a long history of conservative lawmakers and leaders to remind his readers that “concentrated private power [can] be just as dangerous as concentrated public power.” He calls on conservative free market ideals to explain that “[f]ree societies and free markets alike are built upon order: the rule of law and the laws of fair competition” and that “[b]oth require protectors.” AAG Slater similarly recounts historical conservative views to defend her new job and distances antitrust enforcement work from “regulation”—which she calls a sledgehammer—promising that “antitrust is a scalpel[.]” That scalpel is meant to “make targeted, incisive cuts to remove the cancer of collusion and monopoly abuse.” Chairman Ferguson cites AAG Slater to offer the same analogy in his own remarks.

Practical Changes

Consumer Welfare Standard

Chairman Ferguson stresses that antitrust laws address economic power by protecting consumer welfare. Commissioner Meador explains at length the historical context of the consumer welfare standard but argues that Judge Robert Bork was wrong to restrict the interpretation of the standard to economic efficiency and the overall allocation of resources (which includes those that hold the concentrated power and benefit from combinations), when there should be more of a concern for the financial effect on consumers. AAG Slater does not explicitly weigh in on the proper standard but does otherwise similarly emphasize the important role antitrust law can play because in her view “competitive markets enable individuals to achieve prosperity, upward mobility, and economic security. That’s the premise of free market capitalism.”

Scrutiny of Historic Defenses, Other Approaches

Of the three, Commissioner Meador provides the most concrete suggestions of various changes to antitrust enforcement tools and approaches.

• Vertical Integration: Commissioner Meador argues that vertical integration is not always procompetitive and can create conflicts of interest when firms control infrastructure and its applications, because vertically-integrated firms can block third-party access and suppress rivals.
• Market Power: He argues for a return to a demonstration of market power through direct evidence of market effects, not simply an inference drawn (in either direction) from market share, and a more limited role of economic analysis.
• Structural Remedies: Commissioner Meador makes clear that structural remedies—including divestitures and full breakups—should not be seen as extreme, citing a history of successful splits.
• Innovation: He argues against unquestioned acceptance of “innovation” defenses to mergers, calling it “too often…a sweeping defense that excuses exclusionary conduct and avoids scrutiny by reframing anything on the path to dominance and power as progress.” Chairman Ferguson appears less skeptical—referencing “innovation” nearly 10 times in his speech, describing it as something to protect and promote—and stresses taking an “enforcement-forward competition framework that promotes innovation and growth.”
• Efficiency Defenses: Commissioner Meador also expresses distrust of efficiency defenses calling on the “tradition—on both the left and the right—of recognizing danger in concentrated economic power, refusing to excuse it by appeals to efficiency and economic gain, and calling on the federal government to restrain it.”
• Foreign Competition: Finally, Commissioner Meador similarly expresses outright disagreement with arguments that antitrust enforcement against “so called national champions” (large American businesses) could threaten America’s global position, particularly with China, as global success occurs through embracing “free enterprise, competition, and the idea that no firm is above the law.”

Method of Reform

The three enforcers appear to diverge slightly on the method of achieving their goals. Commissioner Meador explicitly calls for Congressional legislation to (1) provide more resources for antitrust enforcement; (2) statutorily cabin the use of economic evidence in antitrust analysis; (3) codify the “correct” definition of the consumer welfare standard; and (4) restore expedited review to the U.S. Supreme Court for antitrust cases.

AAG Slater may prefer a more light touch to antitrust enforcement. She explains that antitrust (the “scalpel” she described) “imposes government obligations only on parties that violate the law, and only for the limited time necessary to restore competition.” The over-use of ex ante regulations is fatal from this perspective because such regulations “cover all parties in an industry for time immemorial, permanently distorting the free market rather than merely curing diseases that were destroying the market.” Chairman Ferguson also cautions against an ex ante approach, which he argues can encourage “burdensome” regulations on small businesses. AAG Slater promises merger enforcement using “prosecutorial discretion based on the best interpretations of the laws on the books, and analysis of economic facts and data,” following a purportedly textualist approach and Supreme Court precedent.

Overall, as Commissioner Meador admits, in many ways progressives and conservatives do—and should—align on antitrust enforcement, even if they differ in the application of that enforcement. For example, where in his view progressives are more willing to rely on the courts to interpret the antitrust laws, conservatives should push for legislative control. Commissioner Meador explains that this is to keep “political decision-making” out of the courts.

Key Takeaways

While it may be too early to tell whether the enforcers’ statements are more political rhetoric than a guide to enforcement, they hint at the new administration’s priorities in antitrust enforcement and appear to reflect an effort to provide a unified message. That message, however, is a mixture of themes expressed during the first Trump Administration, previous Republican Administrations, and the Biden Administration. The three enforcers express their support for robust antitrust enforcement and worry less about overdeterrence and more about underdeterrence. They distance that enforcement from broader (and more burdensome) regulation, while stressing what they have cast as the conservative history and principles that support such enforcement. Though their materials unapologetically present as efforts to convince their own political party of the importance of antitrust, they nonetheless paint a picture of a relatively cohesive—and robust—plan for antitrust enforcement in the coming years. As Chairman Ferguson states, these enforcers at least appear “committed to robust competition-law enforcement.”