Is worrying about the Future of Antitrust like redecorating the Titanic’s ballroom five minutes before the ship hit the iceberg? At The Future of Antitrust Conference, hosted by the Progressive Policy Institute (PPI) on July 16, 2025, on the whole, we thought not.
To be sure, there remain some concerns about the future of antitrust. Will it turn entirely political, swinging between mandates to either care about or repudiate DEI/ESG/etc.? Will the federal government take its foot entirely off the gas and stop enforcing the antitrust laws?
While the philosophical battle for the soul of antitrust rages elsewhere, Andrew Gavil, Erik Hovenkamp, Nancy Rose, Bill Kovacic, and I — moderated by Diana Moss of PPI — gathered to discuss practical ideas as the Future of Antitrust unfolds before us.
Almost impossibly, we had productive conversations about things that are agreed upon by all those in the philosophical antitrust battles, and had conversations about where the differences lie, and what’s next. This was a refreshing conference about solutions, rather than just problems.
So, what was different? The conference generated constructive conversations about which substantive measures Congress should take to enhance antitrust enforcement in the next 10 years.
This includes the little, big, and giant things that Congress could consider instead of the bright and shiny things (my words, said with respect to our elected officials) that they are currently focused upon like ESG (pros and cons), ad placement, or the benefits of international cooperation.
While I recognize the practical reality that elected officials — much to their chagrin — have to raise money, outside of a specific donor profile, these issues don’t matter to Americans out here in middle America nearly as much as fundamental issues like housing, food prices, and healthcare.
I’ll take areas of agreement for both parties first, starting with a little thing. Funding for the agencies needs to be addressed. The latest Congressional proposals do that, at least in part, and there is always a need for more boots on the ground in antitrust enforcement. My co-panelists and I all agreed: good for Congress and the President for moving in that direction.
Nancy Rose raised another little area of broad agreement, at least amongst the panelists and the current Trump administration antitrust officials. Namely, economics matters, and we all applaud the U.S. Department of Justice re-elevating economic analysis to the Deputy Assistant Attorney General level.
From my perspective, economics matters because it matters to judges. Judges like the clarity and non-arbitrariness that comes from the use of economics. But judges also like practical things too, to help them discern a winner in the battle of the experts, and that is why we are seeing courts frequently use things like the Brown Shoe practical indicia and cross-elasticity of demand analysis for market definition in their decisions.[1]
While we were able to applaud some easy things that have already been done, Congress has some harder work to do.
First, Congress should consider passing legislation that would ban pharmaceutical reverse payments, also known as “pay-for-delay” settlements. Erik Hovenkamp’s paper clearly articulates the rationale for why these need to be banned, “These deals delay entry by generic competitors. This forces the public to spend tens or hundreds of millions of dollars more for a drug than they would otherwise pay.”[2]
While there is broad agreement across the political spectrum, the Trump Administration’s Federal Trade Commission (FTC) is interested in lowering prescription drug prices, and Democrats in Congress are interested in lowering prescription drug prices. However, there has been little forward momentum on this.
Second, there is a huge need to act on agricultural consolidation at the enforcement agencies ¾ something they have struggled to get their arms around because of the technical expertise required to analyze these industries and because, in my opinion, there is significant regulatory capture. Except for PPI’s Diana Moss and a handful of others, too many of the people who know about competition in agriculture are paid by Big Ag.
However, the need to overcome this hurdle is more serious than ever, as food is a national security issue. Without more competition amongst agricultural producers, processors, distributors, technologies, machinery ¾ essentially the entire value chain ¾ the potential to have “infant formula” or “COVID-19 beef-packing” breakdown scenarios for Americans, and dare I say, voters, could have potentially catastrophic consequences. We will need to see real leadership and accountability from the political class before this can become a true top priority.
Third, housing also needs to be a priority. Somewhere in the region of one-third of the nation’s households are living in rental properties.[3] In light of this, some in the audience viewed the current efforts to take on various rental companies for alleged algorithmic pricing conspiracies as insufficient to address the needs of ordinary Americans and controlling high rents set by giant corporate landlords.
While there is agreement about the urgency of this competition problem, it is clear from the number of newly passed statutes that the current thinking is that passing statutes banning algorithmic pricing will somehow solve the rental price increase problems. I fear that this may not be the case.
For example, in the same way that there was a recent vogue to blame high prices in pharmaceuticals on lax antitrust enforcement, rather than the root cause (i.e., greed) high rents are also multifactorial. Notably, greed, supply and demand, inflation, restrictive building codes, and a generation unable to afford homes all indicate that the economy is more complicated than a simple “antitrust can fix it” model would allow.
Algorithmic pricing statutes, like Colorado’s groundbreaking one, limit discrimination against protected classes.[4] But they do not ban rent increases. Even the proposed statute that Colorado’s governor vetoed would have banned use of an “algorithm” to set prices. This does not mean that landlords won’t find other ways to raise prices.[5]
We also don’t see low prices in cities where algorithmic pricing software utilization is less common,[6] like New York City (average price for a one bedroom: $4034),[7] versus Atlanta ($1900)[8]. So while versions of these statutes might be a necessary effort, they are not sufficient to solve the complex problem of high housing prices.
Now to the disagreements, from “little,” to “big,” to “huge.”
What does the future of antitrust look like for the consequential but still “little” reforms that have been made to the Hart Scott Rodino (HSR) merger reporting form, or cooperation amongst agencies at home and abroad, or early termination for benign deals? While we seemed to have unanimity on the panel, it is clear that the political parties don’t agree about these things, and if there was anything that felt more like redecorating the Titanic ballroom than this, I am hard pressed to find it.
Having a longer or shorter HSR form is a bright and shiny (albeit little) but important thing. Regardless of which form the FTC uses for premerger notification under HSR, the fact of the matter is that there are not enough people in the pre-merger notification office to completely review the approximately eight merger filings per day that land on their desks.
Even the best “chicken sexer,[9]” as one of my former colleagues described the folks who review merger transactions quickly and correctly, cannot realistically keep up with that demand. This means that Type II errors are abundant with agency “second requests” for more information because the volume means that one does not always know what one is looking for- and there is less consistency amongst the various reviewers.
What is the solution? As I advocated at the conference, technology will play a large role. Congress should mandate that the agencies use a form that is either long or short- (or whatever they want) but preliminarily reviews should be done by technology, with human review thereafter, so that merging parties can have some clarity about their transactions more consistently within the 30-day shot clock that the HSR statute contemplates.[10]
Erik Hovenkamp raised other big ideas for the future of antitrust at the conference, albeit without universal agreement about his proposed solutions. Amongst the biggest is tackling monopoly leveraging with a one-sentence Sherman Act amendment. “All that is necessary is to stipulate that it is unlawful for a firm with monopoly power in one market to exploit that power to impair competition in a second market, even if its conduct is purely unilateral.”[11]
Monopoly leveraging is amongst the allegations that were raised against Microsoft in the early 2000s, and the difficulties of that case are the reason why there has been a limited amount of Sherman Act §2 caselaw, until recently. Decisions related to both tying and the kinds of platform abuses involving self-preferencing that are easily addressed under European competition law, are not as easily addressed in the U.S.[12] And while there is little appetite for adopting a Digital Markets Act-style regulatory framework in the U.S., using our existing system with a minor tweak might reduce the high burdens of proving this kind of conduct.
One of the most surprising parts of PPI’s Future of Antitrust conference was related to our creative ideas about potentially huge reforms on the horizon. This is particularly true for the FTC in the analysis framed by Andrew Gavil and Bill Kovacic’s paper, “A Defense of the ‘For Cause’ Termination Provisions of the Federal Trade Commission Act.”
While there was disagreement about whether recent developments under the Trump 2.0 Administration are the “end of the world” as we know it for the FTC, there are a range of ideas about whether the FTC really is something worth fighting for, or whether (in my view) there might be some opportunities to rethink the structure of the agencies themselves.
For example, which agency should really be left standing if the “One Agency Act” gains steam in Congress? Where does antitrust expertise really lie? Should the FTC get back to its founding mission and diversify its Commissioners’ expertise beyond former congressional staffers? I personally have a soft spot for congressional staffers, having been one myself in the last century. The Gavil-Kovacic paper on the potential outcomes of the Supreme Court’s likely case about the applicability of Humphrey’s Executor to the firings of two Democratic FTC commissioners is only the beginning of the conversation.[13]
And just like the Titanic’s sinking was not the end of global transport, I expect that these conversations about the Future of Antitrust are just the tip of the iceberg.
Gwendolyn Lindsay Cooley, a Contributing Author at PPI, is the Founder and CEO of Taimet, an antitrust technology company, and spent nearly 20 years as Wisconsin’s antitrust enforcer.
[1] Brown Shoe Co., Inc. v. United States, 370 U.S. 294 (1962).
[2] Hovenkamp, Erik, “Invigorating Antitrust Without Stifling Progress,” PPI, July 2025.
[3] Desilver, Drew, “As national rental eviction ban expires, a look at who rents and who owns in the US.” Pew Research, 2021 available at: https://www.pewresearch.org/short-reads/2021/08/02/as-national-eviction-ban-expires-a-look-at-who-rents-and-who-owns-in-the-u-s/.
[4] Colo. Rev. Stat. § 6-1-1701 et seq. (2024)
[5] Colorado Bill HB25-1004.
[6] Council of Economic Advisors, “The Cost of Anticompetitive Pricing Algorithms in Housing,” Fig. 1, p. Dec. 17, 2024, available at https://bidenwhitehouse.archives.gov/cea/written-materials/2024/12/17/the-cost-of-anticompetitive-pricing-algorithms-in-rental-housing/.
[7] Rental Market Trends in New York, NY (one bedroom) available at: https://www.apartments.com/rent-market-trends/new-york-ny/.
[8] Rent Price Summary for Atlanta, Georgia (one bedroom) available at https://www.zumper.com/rent-research/atlanta-ga.
[9] https://en.wikipedia.org/wiki/Chick_sexing.
[10] Disclaimer: my company, Taimet (www.taimet.us), uses artificial intelligence to review merger transactions in order to reduce human review time.
[11] Hovenkamp, Invigorating Antitrust, at 7.
[12] See e.g. Chee, Foo Yun, “Rival Browsers Allege Microsoft’s Practices on Edge Unfair, Should Be Subject To EU Tech Rules,” Reuters, Oct. 3, 2024, https://www.reuters.com/technology/rival-browsers-allege-microsofts-practices-edge-unfair-should-be-subject-eu-tech-2024-10-03/.
[13] U.S. 602 (1935).
