In this paper, Diana L. Moss reflects on the legacy of the Biden Administration’s “Anti-Monopoly” agenda and its implications for the future of U.S. antitrust enforcement. While recognizing the movement’s ambition to challenge concentrated economic power, she argues that its departure from the consumer welfare framework and its reliance on expansive legal theories ultimately produced limited success in the courts. The article offers a broader assessment of how ideological swings in enforcement philosophy can affect both legal certainty and the long-term credibility of antitrust institutions.
In 2021, the Biden administration installed “Anti-Monopoly” advocates at the U.S. Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”). The movement, which emerged in the mid-2010s, is rooted in the idea that antitrust is a critical tool for solving the economic, political, and social problems, and threats to liberty, that flow from corporate power. Anti-Monopoly ideology rejects the consumer welfare standard that has played a central role in antitrust for decades, advocating instead for bright line tests for corporate “bigness.”
The practical effect of the Anti-Monopoly movement’s repudiation of the consumer welfare standard is the dissolution of antitrust’s “effects-based” approach for determining violations. That analysis links anticompetitive consolidation and business practices to harm to consumers, through higher prices, lower quality, less variety, or slower innovation. Without effects-based analysis, decisions on antitrust violations would revert simply to thumbs-up or thumbs-down findings based on mandated threshold criteria.
The role and interpretation of the consumer welfare standard has been vigorously debated for decades. The standard earned a questionable reputation under conservative “Chicago School” doctrine that commandeered the antitrust enterprise for almost 40 years beginning in the 1970s. For example, laissez faire enforcers erroneously focused almost exclusively on the short-term price effects of anticompetitive consolidation and conduct. Such threats are easily overcome by the promise of efficiencies, such as cost savings or expanded R&D capability, from mergers or business practices that otherwise limit competition. The damage to competition and consumers wrought by Chicago-School conservatism is still felt by consumers today.
Backlash to lax Chicago-School enforcement sparked the center-left “Post-Chicago” movement in the late 1990s. The Obama administration issued the first ever Executive Order on Competition,3 pursued aggressive cartel enforcement, and withdrew conservative past policy guidance on monopolistic conduct. On the merger front, Obama administration antitrust enforcers blocked highly concentrative mergers such as AT&T-T-Mobile (2011), Staples-Office Depot (2016), Sysco-U.S. Foods (2015), Halliburton-Baker Hughes (2016), Aetna-Humana (2016), and Anthem-Cigna (2017). These deals eliminated head-to-head competition or encouraged anticompetitive coordination, invoking the “structural presumption” of illegality, under which no efficiencies claims could possibly save the day.
Against the backdrop of major shifts to far-right antitrust conservatism and far-left antitrust progressivism over the last 50 years, the pragmatism and effectiveness of the center-left Post-Chicago approach is under-recognized. For Anti-Monopoly advocates, deployment of the full scope of the consumer welfare standard and the structural presumption (to knee-cap efficiencies defenses) was not really relevant. Rather, embracing the Chicago School’s inaccurate interpretation of the standard and deference to efficiencies is central to the Anti-Monopoly argument that the standard should be rejected outright.
Control of the enforcement agenda under the Biden administration thus provided a platform to advance wholesale antitrust reform. This article empirically unpacks results from the Biden enforcement era, strengthening the case for why swings in antitrust ideology impose risks and high opportunity costs on enforcement, with a direct impact on promoting competition and protecting consumers.
