How Trump Will Reverse Biden’s Attempted Antitrust Revolution

When the Justice Department successfully blocked a proposed merger between JetBlue and Spirit Airlines last year, the head of the antitrust division under President Joe Biden announced that it was “yet another victory” for American consumers.

The declaration may have been premature. After the deal fell apart, Spirit’s stock price cratered, and the company declared bankruptcy, fired hundreds of people and raised ticket prices. The company recently received court approval for a reorganization plan that will wipe out the company’s stockholders and hand control over to large bondholders led by hedge funds and asset managers.

The episode underscores the gap between the rhetoric and reality of the Biden administration’s antitrust agenda as well as the real-world impact on the people it was trying to help.

Now President Donald Trump’s appointees are taking the reins at the Justice Department and the Federal Trade Commission amid considerable interest across the political spectrum as to how his administration will enforce antitrust law. Progressive supporters of Biden’s agenda have forecast that his approach won’t fade away, with some recently celebrating a “new antitrust consensus.”

But their predictions are likely to be incorrect. In fact, in a sign of how antagonistic the Trump-era FTC may be toward its predecessor, a senior FTC official tells me the agency has now begun an internal investigation into leaks to the press during the tenure of FTC Chair Lina Khan. The official said they believed there was an inappropriate relationship between career FTC staff hired under Khan and what the official described as “left-wing” news outlets. Khan declined to comment.

And when it comes to antitrust enforcement, Trump’s picks at DOJ and the FTC have already signaled that his administration is going to substantially change course.

For decades, antitrust enforcement was guided by the notion that the effect on consumers should be regulators’ top priority. Biden’s antitrust enforcers rejected that approach — instead working from a relatively new, controversial and amorphous theory that, as Khan once described it, argues that antitrust law should instead focus on “workers, suppliers, innovators, and independent entrepreneurs” and try to dilute the economic and political power of large corporations. The unstated implication is that higher consumer prices may in fact be necessary and desirable to pursue these goals.

But now the consumer welfare standard will likely return under the Trump administration, putting an end to the Biden era’s attempted policy revolution. There are likely to be more mergers and fewer proposed breakups. Big Tech is going to remain in the crosshairs, though perhaps for different reasons, as conservatives make charges of politically motivated censorship and content moderation; just last week, the FTC announced an inquiry on censorship by technology platforms.

The Trump administration is unlikely to embrace a totally laissez-faire approach; people forget it, but some of the Biden administration’s most notable antitrust legal victories — including a big win in a case against Google — began under Trump. Still, a real shift is coming.

“I think they might return to a more practical view — pro-innovation, pro-business, but not pro-monopoly,” according to Andrew Finch, who served as acting head of the DOJ antitrust division in Trump’s first administration and later as the second-in-command under Makan Delrahim, who was Trump’s Senate-confirmed appointee to lead the office. (I previously worked with Finch when I was an attorney in the private sector.)

Meanwhile, as the Democratic Party tries to recover from a devastating election, the battle over the record of Biden’s antitrust enforcers is underway: Were they successful, on the substance or the politics? The debate is ongoing, and its outcome could dramatically shape the party’s political strategy and governance for years to come.

“Mergers can benefit the economy,” Finch told me. “This idea that consolidation in and of itself is inherently bad is wrong.”

This was once an uncontroversial proposition, but Biden’s antitrust enforcers took a very different view, at times touting the agencies’ record of blocked and abandoned mergers as if they were intrinsically good for the economy and for consumers despite a paucity of credible economic support for this approach.

And though JD Vance made some supportive comments about Khan on the 2024 campaign trail, Trump decided to go in a much different direction.

Andrew Ferguson, who is now chair of the FTC, got the job after putting together a pitch in which he promised, among other things, to “Reverse Lina Khan’s Anti-Business Agenda” and “Stop Lina Khan’s war on mergers.”

Ferguson served as a commissioner at the FTC before being elevated to chair, and he opposed many of Khan’s most ambitious efforts, including a rule banning noncompete agreements that has struggled in the courts amid serious questions about the agency’s legal authority to issue such a broad directive. Ferguson is likely to rescind it eventually.

Taking a page from Trump’s agenda, the FTC announced last week it would investigate potential corporate collusion on DEI policies; the agency also separately withdrew an investigative demand issued under Khan to the gaming company MGM.

As for Gail Slater, who is set to succeed Biden appointee Jonathan Kanter as head of the DOJ’s antitrust division, she made clear during her confirmation hearing that she was eager to conserve enforcement resources given the high costs of litigation — a potential sign that she won’t be as eager to launch lawsuits to remedy perceived antitrust problems.

Ferguson surprised some observers last week when he announced that the agencies will continue using a revised set of merger guidelines that were devised under Khan and Kanter, but that may prove less significant than their supporters realize. The guidelines are ultimately a grab bag of arguments that enforcers can pick and choose to advance their agenda; it is perhaps not that surprising that Ferguson would embrace the broad discretion that they now afford him and Slater, and they are likely to use them in far different ways.

So what is the Trump administration likely to prioritize? At her confirmation hearing, Slater also identified some potential enforcement priorities to come. She suggested that the DOJ might focus on boycotts against businesses aligned with conservative causes, de-banking in sectors like cryptocurrency and the alleged de-platforming of conservatives on tech platforms.

The success of Biden’s antitrust push was hotly debated during his term, even among the left, but the returns are now in, and they are not great.

Democrats tried to pass ambitious legislation aimed at breaking up large tech companies but ultimately failed because they didn’t have the votes.

Sen. Amy Klobuchar (D-Minn.), who spearheaded the effort in the Senate, noted that there were some narrower but still meaningful legislative victories while Democrats held power in 2022. “We passed landmark antitrust bills — one to get more resources to our antitrust enforcers and one to ensure state enforcers can keep cases in the courts they choose,” Klobuchar said in a statement.

Senate Minority Leader Chuck Schumer, who led the majority during the 2022 effort, echoed Klobuchar. “While it’s not everything we had hoped to get done, it was a good first step,” he said.

The record of Biden’s enforcers in the agencies and in the courts was also very mixed. But you don’t have to take it from me. The New York Times noted that the administration “faced big setbacks in court” and suffered “plenty of losses.” The Wall Street Journal observed that Khan “failed to win” the cases that might have moved the law in the tech sector. And Bloomberg likewise recently reported that Khan, in the end, achieved “mixed results.” (Khan published a report touting the agency’s record during the Biden years, but it appears to have been riddled with misleading statistics.)

Things were similar at DOJ under Kanter. There were notable achievements — including the victory at the Google trial in the case that began under Trump — and plenty of losses as well. This is not that surprising, since an ambitious effort to advance the law through litigation will have successes and failures. But the record has left supporters of that work struggling to claim victory — often overstating the value of modest regulatory moves and ignoring the ones that they failed to push through.

In the end, Khan and other prominent Biden officials, including Tim Wu, came into their jobs wanting to nullify the consumer welfare standard, the long-established guidepost for enforcers focused on protecting consumers from anti-monopoly behavior. But it is still alive and well, and despite their claims to the contrary, Biden’s enforcers ultimately did not move the law in a lasting way.

The Biden-era antitrust regime was one element of Bidenomics, a loose collection of policies that have now come under harsh scrutiny in the wake of Democrats’ across-the-board loss in the 2024 election.

One considerable problem that the Biden administration faced was inflation and voters’ concerns over prices. At the same time, the underlying intellectual framework of Biden’s antitrust enforcers rejected the idea that policy makers should care about keeping prices down for consumers. Even setting aside the merits of that view, it was clearly going to be politically toxic in a period of high inflation.

But Biden’s antitrust regime was not particularly populist either, in the sense that it didn’t appeal to the public.

As Herbert Hovenkamp, the leading scholar on antitrust law in the U.S., recently noted, the most credible and robust public polling in this area reflects “a dominant concern with high prices and other issues relating to financial well-being, and relatively little with big business or industrial concentration for their own sake.”

The neo-Brandeisians, as the self-described antitrust “reformers” in the party like to be called, after Justice Louis Brandeis, cite their own polling data, but those polls often end up being ideologically agenda-driven polls commissioned by affiliated special interest groups and observers who already support their work. A poll that asks the public what they think about “corporate monopolies,” for instance, is going to generate an obvious result, and it is about as instructive as asking Americans what they think about serial killers.

The public also seems to like many of the companies that neo-Brandeisians don’t. When polled, Americans generally report highly favorable views of companies like Amazon and Google. (They are less enamored with social media companies like Meta.)

Likewise, a poll conducted after the 2024 election reported that about half of voters rated “controlling inflation and strengthening the economy” as one of their top concerns. The comparable figure for “regulating technology companies” was just 2 percent.

To be clear, Democrats don’t have to give up on tough antitrust enforcement to do well on Election Day. A more popular project would focus on rooting out anticompetitive conduct in widely used markets for goods and services in a way that materially affects working-class Americans’ well-being and livelihood, not the color of their text messages.

The party is now privately and publicly grappling with the influence of “the groups” in Democratic politics — the collection of single-issue special interest groups that have recently exercised considerable influence in the party while at the same time pulling them away from the concerns of the average American.

The neo-Brandeisians are one of them.

As with other groups that have recently come under scrutiny, much of this work has been funded by the Hewlett Foundation, which has sought to reshape policy and politics in a way that moves beyond so-called neoliberal economics.

The Hewlett Foundation has helped fund groups like the American Economic Liberties Project and the Open Markets Institute, which sought to boost the Biden antitrust enforcement program, as well as publications like The American Prospect, which has for years served as a platform for the neo-Brandeisian agenda. It was the Prospect that recently claimed that there is a “new antitrust consensus,” and it was the Prospect that gave Biden a post-election opportunity to defend his legacy. It’s a legacy that brought us Trump.

What the last four years show is that despite the best efforts of Khan, Kanter and their ideological allies, antitrust enforcement does not deliver broad, effective and durable economic policymaking.

Litigation is inherently fraught, and courts are not reliable or predictable enough for it to work. There can also be radical regulatory swings between administrations — like the one we are witnessing now — that can slow or even wipe out your work.

A conceptually simpler way to improve things for working-class Americans from a liberal economic perspective is one of the oldest around — redistributive taxing and spending. The Democratic Party has for years avoided anything that might look like a tax hike for the middle class, but one of the most reliably well-polling ideas in American politics is raising taxes on corporations and the wealthy.

If the Democratic Party wants populism, it should perhaps listen to what Americans are actually telling it.

In the meantime, Trump has claimed the populist mantle as his own — and Republicans appear poised to take antitrust policy in a very different direction.