The Network Law Review is pleased to present a symposium entitled “The Future of the Neo-Brandeis Movement”, asking experts the following question: will the neo-Brandeis movement have a lasting impact on antitrust law?
This contribution is signed by Dirk Auer (ICLE & University of Liège) and Lazar Radic (ICLE & IE University). The entire symposium is edited by Thibault Schrepel (Vrije Universiteit Amsterdam) and Anouk van der Veer (European University Institute).
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1. Introduction
The movement that some call “neo-Brandeisianism,” after its putative inspiration in the works of the late U.S. Supreme Court Justice Louis Brandeis (others have less-charitably termed it “antitrust populism” or “hipster antitrust”), has indisputably taken the competition world by storm. Indeed, it has arguably led to one of the fastest policy swings in antitrust history.
It has been less than a decade since the publication of Lina Khan’s “Amazon’s Antitrust Paradox,” (2017) which is often asserted to be ground zero for the neo-Brandeisian movement.[1] Yet much of the competition-law establishment already appears to have adopted many of Khan’s key precepts. This is particularly true of the arguments that digital platforms should be subject to access regulation and that corporate mergers should be policed far more vigorously than was previously the case.
On the neo-Brandeisians’ side of the scoreboard, digital competition regulation has grown from a niche academic idea to the centerpiece of modern competition policy. Digital competition cases have mushroomed, as have digital market regulations like the EU’s Digital Markets Act (DMA) and the UK’s Digital Markets, Competition, and Consumers Act (DMCC). A bevy of “new competition tools” have also been created that enable competition authorities to bring market investigations (and impose remedies) for conduct that fails to trigger traditional antitrust intervention thresholds. There are also signs that today’s law students — i.e., tomorrow’s lawyers, judges, and policymakers — have been captivated by the neo-brandeisian vision.[2]
While the neo-Brandeisian movement is not solely responsible for these shifts, it certainly played a significant role in popularizing the notions that the consumer welfare standard is ill-equipped to tackle the plethora of alleged economic and social harms associated with online platforms, and that the playing field needs to be tilted in favor of public or private plaintiffs by streamlining (if not circumventing) procedural safeguards and case-by-case effects analysis in favor of presumptions and “systemic” solutions.
On closer inspection, however, cracks rapidly appear in the neo-Brandeisian success story. For all its influence abroad, the movement might not achieve lasting policy change in its home jurisdiction of the United States. The consumer welfare standard still guides U.S. antitrust law, and there is little evidence that courts are prepared to abandon it. DMA-style legislative efforts to rein in so-called “big tech” have stalled in the U.S. Congress. Furthermore, academics from across the political spectrum have become increasingly critical of some bits of neo-Brandeisian orthodoxy.
A growing chorus of voices is starting to hint that further digital market regulation may not be desirable. For instance, a communication from the Belgian Ministry of Foreign Affairs (when it assumed the rotating EU presidency) explained that:
“Following the ‘legislative wave’ of the current legislature, the focus of the next European legislature will need to shift to implementation, enforcement and governance. The impact and necessary investment for companies to comply with the (new) European rules and requirements should not be underestimated in this regard.”[3]
Given the uneven track record, this piece speculates about what sort of legacy the neo-Brandeisians might leave. We outline three possible scenarios and assess whether or not the early signs suggest each is likely to play out. The first scenario is that neo-Brandeisianism effects a lasting shift of the Overton window. The second scenario is that, after making some inroads, the pendulum ultimately shifts away from neo-Brandeisianism and back to the center. The third scenario is that neo-Brandeisianism fails to significantly influence substantive antirust law, but succeeds in transforming antitrust procedure by making it more political and less technocratic. In the end, we conclude that, while the neo-Brandeisian movement has undeniably influenced the world of competition policy, this influence is likely to be more short-lived than many might assume.
2. Scenario #1: Lasting Shift of the Overton Window
A first possibility is that the neo-Brandeisian movement will lastingly turn the competition policy dial toward more enforcement and less economic analysis.
While there is some evidence this has started to happen, the shift has not been nearly as widespread as it might appear. In fact, to date, significant changes to substantive competition law and regulation have largely been limited to the handful of jurisdictions that have enacted digital competition rules. Even in those cases, policy change has mostly been limited to digital markets and a handful of large U.S. platforms. Furthermore, new regulatory tools like the DMA have not so much shunned economic analysis as taken a much more lax approach to it.
2.1. Explanation
Prior to Lina Khan’s “Antitrust Paradox” essay, the antitrust world had been largely moored to established economic findings—many of them popularized by scholars from the University of Chicago and Harvard University. The Chicago School, in particular, is famous for its influence in generalizing the notion that the sole purpose of competition law is to maximize consumer welfare. While comparatively more interventionist, influential scholars like Harvard’s Phillip Areeda nevertheless still espoused economics as the primary analytical framework for antitrust law.[4]
The neo-Brandeisian movement explicitly sought to emulate the influence those schools have had while, somewhat paradoxically, also overturning some of their key holdings. For instance, neo-Brandeisian scholars have rejected notions that corporate size and market power were unrelated; that market structure was a flawed predictor of market outcomes; that vertical agreements and corporate mergers generally benefited consumers; that wrongful convictions had higher social costs than wrongful acquittals (because markets can self-correct); and that consumer welfare is, or should be, the only goal of antitrust law.
Today, the big question is whether neo-Brandeisian thinking will have an impact on the competition policy world, similar to the two antitrust schools of thought it has sought to repudiate.
2.2. The Case For Regulations
The enactment of digital competition regulations all over the world can be attributed, at least in part, to ideas popularized by neo-Brandeisians. Indeed, while these regulations owe much to academics and policymakers that likely would not call themselves neo-Brandeisian (e.g., here[5] and here[6]), the unmistakable focus of various jurisdictions around the world on a handful of large U.S. tech platforms unquestionably marks a shift in the direction that neo-Brandeisians were among the first to advocate.
Both Khan’s “Antitrust Paradox” and Tim Wu’s “The Curse of Bigness,” the founding texts of neo-Brandeisianism, contended that the major U.S. tech firms were a threat to competition and democracy (here[7] and here[8]), and that the modern consumer welfare standard was insufficient to capture these harms. By focusing on size rather than market power, seeking to circumvent or abridge economic effects analysis, shunning consumer welfare, and weakening procedural safeguards in attempts to correct a perceived imbalance of power that allegedly favored antitrust defendants, the substance of the recent round of digital competition regulations also echoes the gist of neo-Brandeisian ideas.
If the experience of other regulated industries is anything to go by, this shift will not dissipate anytime soon. Regulations are notoriously difficult to repeal, and there is no reason to believe that legislation like the DMA or DMCC will be any different. Furthermore, competition agencies have received new powers, expanded budgets, and more personnel to enforce competition provisions in these digital markets. For example, in 2021 the UK created a “Digital Markets Unit” (DMU) within the Competition and Markets Authority, which is now charged with enforcing the DMCC. The DMU’s headcount is set to rise from 70 [9] in 2022 to 200 [10] by the end of 2024. For its part, the EU currently has 80 staff[11] assigned to enforce the DMA. It is unlikely that this administrative apparatus will be easily dismantled once it’s set up.
The neo-Brandeisian influence is also plain to see beyond digital competition regulations. All over the world, competition agencies have launched numerous competition cases against the digital platforms for conduct the neo-Brandeisian scholars have singled out. Cases of this sort have essentially become the centerpiece of these agencies’ enforcement agenda. Some of the inquiries are also broadly aligned with basic neo-Brandeisian tenets, such as protection of small competitors and adoption of stricter standards against tech companies.
In the EU’s Google Shopping case, for instance, the European courts didn’t find it necessary to apply the essential facilities doctrine to establish that Google’s self-preferencing constituted an abuse under Art. 102 TFEU, in light of the company’s “super dominance.”[12] Hard and soft laws also seem to reflect some of the neo-Brandeisian ethos. The European Commission’s amendments to its Article 102 Guidance Paper, for example, moved away from the as-efficient-competitor principle to suggest that abuse of dominance is concerned with protecting market pluralism, and not just efficient competition.
At home, the recently promulgated updates to the U.S. merger guidelines have blurred the distinction between horizontal and vertical mergers, placed heightened emphasis on structural presumptions, de-emphasized the need to show actual or potential harms associated with market concentration and, in general, lowered the threshold for intervention (here[13]). While this shift may be less permanent than the consequences of digital market regulation, it is hard to see how it will be undone anytime soon.
2.3. The Case Against
There are, however, important caveats to the neo-Brandeisian “success story.”
Chief among these is that, while neo-Brandeisian thinking was a precursor of the move toward more stringent antitrust enforcement against large digital platforms, many aspects of how this enforcement shift has played out are hardly in line with the movement’s key tenets. Most importantly, neo-Brandeisian thinking tends to reject price theory and industrial organization as being overly price-centric (thereby omitting things like power dynamics) and too easily gamed by large corporations with deep pockets.[14] In contrast, most digital competition regulations and cases explicitly rest on concepts drawn from industrial organization scholarship, such as network effects, multi-sided platforms, and increasing returns to scale (albeit interpreted very liberally, and underpinned by a series of assumptions about the pervasiveness and consequences of such things).
A second caveat is that, unlike the Chicago School before it, the neo-Brandeisian movement appears to draw less from recent scholarly insights. The Chicago revolution was based on new economic findings that were widely perceived as groundbreaking (George Stigler’s work, for instance, earned a Nobel prize). The neo-Brandeisian movement does not appear to be anchored in novel economic insights of this sort.
This is not to say that neo-Brandeisian thinking should be dismissed simply because it has not yet been awarded a Nobel prize. Instead, the point is that the Chicago School was not just a shift in ideology; it was also underpinned by “scientific discoveries” that are notably absent from the neo-Brandeisian movement. In other words, neo-Brandeisianism appears driven primarily by a shift in political priorities and sensitivities, in a way that harks back to prior paradigms and that shows some evidence of being cyclical.[15] This might undermine its long-term influence.
Finally, it remains unclear the extent to which the movement will actually change substantive law, especially outside of digital markets. Particularly in the United States, cases brought by neo-Brandeisian leaders thus far have a mixed track record before courts.[16] For example, Epic has to date been mostly unsuccessful in its lawsuit against Apple (even though it rested on more standard monopolization claims).[17] The movement also appears to have been less influential outside of digital markets. Even in the EU, which is often seen as more receptive to this mode of thinking, there has arguably been little substantive legal change outside of digital markets (the EU’s updated Article 102 guidance papermay be the exception to this rule).
Ultimately, it is hard to untangle the impact of neo-Brandeisian thinking from a more generalized frustration with today’s incumbent tech platforms. And outside of these tech markets, there is little indication the movement has had much influence on substantive law.
3. Scenario #2: The Pendulum Swings Back
Antitrust is no stranger to change. One salient example is the recurring swing between a vision of antitrust that holds it should protect small businesses and another that it should be concerned merely with protecting competition and consumer welfare (though the extent and causes of this back and forth are debatable).[18]
After a short, emphatic lapse, most of the time the pendulum swings back to the original position, or close to the original position. It is only in rare instances, however, that these ephemeral ideological swings yield a lasting realignment of antitrust policy—as was arguably the case with the advent of the Chicago School, which succeeded in consolidating the law’s commitment to the welfare of consumers. The question, then, is whether the neo-Brandeisian movement is merely a swing of the pendulum or whether, like the Chicago School, it will mark a long-lasting realignment of antitrust policy around the world.
3.1. Explanation
Every so often, a new piece of legislation or a landmark case or piece of legislation emerges that promises to insulate the “worthy men” of small business from the gales of creative destruction wrought by larger firms. Arguably, this is an inevitable upshot of the law’s ambiguous wording as well as of the inherent conceptual difficulty in distinguishing between conduct that harms competition, and conduct that merely harms competitors. With time, however, policymakers and courts typically come to realize that protecting smaller competitors for its own sake stifles efficient business conduct, and the tide turns back.
For example, the Robinson-Patman Act in the United States (also called the “Anti Chain Store Act”),[19] which promised to curb “price discrimination” by prohibiting manufacturers and wholesalers from supplying goods at reduced prices to preferred customers in an attempt to protect small retailers from chain stores[20] has been considerably narrowed down by courts since the 1980s (though it is still the object of some private litigation).[21] Similarly, the U.S. Supreme Court’s controversial holdings in Brown Shoe and Von’s Grocery, which preclude essentially any horizontal merger because it “tends to lessen competition,” were later heavily qualified.
The question is whether emerging antitrust policies influenced by neo-Brandeisianism will recede in a similar way and, if so, how long the current “pendulum swing” will last. This is difficult to predict.
3.2. The Case in Favor
There is reason to believe that the structuralist, “big is bad” ethos that neo-Brandeisians promulgate is nothing but a random zag in the history of antitrust law and that, with time, the pendulum will naturally swing back toward calls for more effects-based analysis.
The prevailing consumer welfare standard has, indeed, proven remarkably resilient over the years. Part of this is due to its adaptability to changing economic learning. As economists gain new insights about the effects of emerging business practices on consumers and competition, these become enshrined in new rules, standards, and presumptions (see, e.g.,Leegin). This step-by-step process of alignment with economic reality lends theoretical and policy legitimacy to the consumer welfare standard and cushions it—at least, to some extent—from calls for a broader overhaul of antitrust goals. In other words, the consumer welfare standard’s resilience may stem from its ability to demarcate pro and anticompetitive conduct.[22] As Nicolas Petit and Lazar Radic have written elsewhere:
“The [consumer welfare standard] explicitly acknowledges the difficulty in knowing, a priori, when conduct is “bad” (as opposed to “good” competition on the merits) and “harmful to competition” (as opposed to merely harmful to competitors). It injects an element of objectivity into what would otherwise devolve into a complex moral value judgment by asking a simple question: have consumers, who are the ultimate beneficiaries of competition, been harmed as a consequence of the impugned conduct, or not?”[23]
By contrast, the neo-Brandeisian movement is premised on the rigid condemnation of size, and a preference for an economy populated by small, independent businesses and de-concentrated markets. This may ultimately lead to inefficient outcomes that expose neo-Brandeisian policies to pushback on utilitarian as well as legal grounds, particularly from defendants, ideological adversaries and, most importantly, consumers who demand better and cheaper goods.
The consumer welfare standard also appears more open to internal disagreement than the neo-Brandeisian discourse would permit. Different jurisdictions[24] and schools of thought have historically had legitimate differences of opinion about how business conduct should be appraised, how rules should be designed, and the appropriate degree of intervention by antitrust authorities.[25] For instance, within the ”broad tent” of the consumer welfare standard, some consider that antitrust law should look at the net effects of conduct on both sides of a two-sided market (such as e.g., payments cards) to ascertain cognizable antitrust harm, while others argue that harm to one side suffices to trigger antitrust liability. In both cases, the impetus lies in defending the consumer – the question is which one? Similarly, different competition law systems apply different standards to the same conduct depending on how likely they consider the practice in question is to harm consumers. Thus, some jurisdictions have treated resale price maintenance as per se prohibited, akin to horizontal price-fixing cartels, while others have opted for an effects-based approach under the premise that agreements which limit intra-brand competition can in fact stimulate inter-brand competition, which consumers ultimately benefit more from. Neither however negates that the overarching purpose of the law is to protect consumers — the question, rather, is one of methods and standards. Nor is this an exhaustive list: the consumer welfare standard allows reasonable people to disagree over a range of issues without repudiating a shared premise: from the likelihood and degree of harm and countervailing benefits, to the sort of effects that matter the most (e.g., how should we weigh short-term price increases against potential innovative upturns in the longer term?), to the relevant theory that best explains how and whether those effects come about (is it neoclassical economics? Complexity theory? Something else).[26]
In contrast, neo-Brandeisianism categorically rejects large swathes of modern scholarship, particularly the field of industrial organization. In the words of Lina Khan: “The word efficiency doesn’t appear anywhere in the antitrust statutes… It’s not that any business practice that increases welfare or increases efficiency is fine.” [27]
This dogmatism narrows the scope of permissible debate and risks alienating large contingents of the academic community who do not share the neo-Brandeisian rejection of technocratic antitrust policy. For instance, neo-Brandeisians have chastised[28] some scholars for their politically centrist views, and particularly for preferring to reform the law through progressive adjustments, rather than antitrust revolution.[29] Treating partially aligned scholars as adversaries might ultimately hamper the movement’s long-term viability.
For all these reasons, any movement away from the consumer welfare standard may be short-lived, as the weaknesses of the neo-Brandeisian position are likely to reaffirm the existing paradigm’s primary tenets.
3.3. The Case Against
The rise in global protectionism, the return of industrial policy, and recurrent proclamations of the “death of neoliberalism” all point toward a lasting departure from the late 20th Century’s rules-based global order, built on (relative) free trade and economic liberalization. Neo-Brandeisian thinking is, arguably, part of this broader post-neoliberal moment. For instance, Federal Trade Commission (FTC) Chair Lina Khan was an early contributor of the Law & Political Economy Project, a network of scholars highly critical of neoliberalism that calls for more aggressive government intervention in the economy. [30]
In this “post-neoliberal” world (i.e., one that rejects the notion of self-correcting markets, supports politics as the ultimate ordering power of the economy, renounces free-trade, supports heavy government intervention in all spheres of social and economic life, and supports robust redistributive policies to achieve “social justice”), the role of the state would not be to address market failures that harm consumers through discrete interventions guided by general, abstract, and reactive rules (such as competition law). Instead, it would be to proactively redesign products, pick winners, and redistribute rents; indeed, to act as the economy’s ultimate ordering power. If such a shift occurs, it is not difficult to see how the “old” competition law principles—such as the consumer welfare standard, economic effects-based analysis (as opposed to structural presumptions), and procedural safeguards to cabin enforcers’ discretion—would be regarded as potentially disruptive to this new system. [31]
Put differently, if the swinging “pendulum” turns out to be not just that of antitrust law, but of the political economy more generally, then neo-Brandeisianism might be a better ideological fit for the post-neoliberal world. As such, it is more likely to be lasting.
But how much more lasting? It is difficult to say, and the answer almost certainly lies well beyond the narrow limits of antitrust law. In this regard, it should be noted that the neo-Brandeisian agenda harks back to the “Golden Age of Capitalism” (the 1950s and 1960s), an ideological status quo collapsed under the weight of various contradictions and problems that ushered in the emergent “Washington consensus” in the late 1970s and the 1980s. As Todd Zywicki has recently pointed out:
“U.S. policymakers turned away from the post-War consensus because of a myriad of clear reasons—“stagflation” (simultaneous high rates of inflation and unemployment combined with slow economic growth), declining global economic competitiveness, and the increasing financial burden of resisting Soviet aggression during the Cold War. It was widely recognized that the economic successes of the post-War era resulted largely from the United States’s dominant global economic position following the decimation of World War II and that the economy succeeded despite, rather than because of the various factors extolled by LPE thinkers. Fears of real economic decline and its consequences prompted a groundswell of support for modernization of regulatory and antitrust policies.”[32]
In other words, the neo-Brandeisian movement may be part of a broader ideological realignment that has long-lasting policy consequences. But even if this proves to be the case, we also have evidence to suggest the movement’s economic blind spots may ultimately sow the seeds of its own destruction, thereby leading the pendulum to swing back—as it has before—in a more distant future.
4. Scenario #3: The Erosion of Technocratic Antitrust Enforcement
A final potential scenario is that the neo-Brandeisian movement may influence antitrust law and policy in ways largely unrelated to its substantive agenda. There are, indeed, indications that neo-Brandeisian enforcers (particularly those in the United States) have used their merger review powers, ability to promulgate guidelines, and cooperation with foreign agencies in order to hamper business conduct (particularly mergers), even where the chances of winning domestic court cases are slim. Indeed, a staff report by the U.S. House Judiciary Committee found that:
“Career FTC staff members expressed concern that Chair Khan did not want the FTC to be successful and purposefully put staff in a position to complete poor work product, and even brought losing cases on purpose. Plainly stated, one manager wrote to another manager that “I’m not sure being successful (or doing things well) is a shared goal, as the chair wants to show that we can’t meet our mission mandate without legislative change.”[33]
And Khan herself appears to have confirmed as much in an interview:
“I think, as public enforcers, we have a special obligation to be bringing the hard cases.”[34]
The question is whether this trend, if it is occurring, may alter the procedural and political landscape of antitrust enforcement. Competition law is generally seen as a technocratic discipline in which politicization takes a backseat to dispassionate empirical assessment. If the agencies’ politicization and activism mark a departure from this prior practice, and future administrations perceive this as a viable way to achieve their policy goals, it could erode the delicate balance that arguably insulated enforcement from shifting political whims.
4.1. Background
Under neo-Brandeisian leadership, the FTC, in particular, has made extensive use of its enforcement powers, often in situations where the likelihood of court victory appears remote. This seems to be part of a calculated assessment from the agency’s leaders that enforcement is not just about winning court cases, but also about throwing up roadblocks that hampers business conduct the agencies deem undesirable.
One such example is the FTC and U.S. Justice Department’s (DOJ) amended merger guidelines. Merger guidelines are typically offered as a way to explain the state of the law (and the agencies’ interpretation thereof) to companies, rather than a tool to rewrite positive antitrust law. Yet this is precisely what the agencies’ amended guidelines seek to achieve. As Luke Froeb, Daniel Sokol, and Liad Wagman write:
“The Draft Guidelines support [their] premise by citing cherry-picked, older decisions, while ignoring a long body of case law contrary to this view. As such, the Draft Guidelines seem atavistic, yearning for a return to a golden past that does not reflect the modern evolution of the law or economics.”[35]
Another example concerns the allegations that the FTC has been collaborating with foreign enforcement agencies, and particularly the European Commission.[36] While communications and collaboration among competition enforcers around the world has been the norm for decades, the recent claim is that the FTC has gone several steps beyond this standard practice toward “actively helping” foreign policymakers design new regulations, and thus inhibit conduct that is not illegal in the United States. If true, which is unclear, this would show an agency willing to think outside the standard antitrust-enforcement box to achieve its policy goals.
The U.S. agencies have also been accused of bringing cases they (should) know cannot be won in order to make it costlier and slower for firms to merge, thereby disincentivizing these and other transactions. In a recent interview, Khan cited 14 recent abandoned mergers, where the FTC had not conducted a review, as an important achievement.[37]This suggests that deterring mergers, in and of itself, is one of Khan’s goals, regardless of their underlying legality or ultimate impact on consumers. In turn, this and other examples sketch the profile of an agency eager to achieve its idiosyncratic ends, rather than merely ensure strict compliance with the law.
Finally, the neo-Brandeisians who have been elevated to the leadership of antitrust agencies are in the position to replace departing staffers with new hires that are more ideologically aligned with neo-Brandeisian ideals. If those new hires have long careers ahead of them, it could mean the long-term realignment of the agencies’ priorities and worldview.
The big question is whether all of this marks a departure from normal practice and, if so, whether future leadership will course correct or continue down the same path. If the latter happens, one of the movement’s biggest legacies may be the erosion of best practices that previously insulated antitrust enforcement from political whims.
4.2. The Case in Favor
For this scenario to pan out, three things must be true. It must first be the case that accusations of politicized decision-making are founded. Second, these practices must mark a departure from prior behavior. Finally, there must be a sense that future agencies will learn from the current leadership and follow suit (albeit, to fulfill their own political agendas).
Broadly speaking, the first and third conditions appear likely to be fulfilled, while the second (discussed in the following section) is less certain. It is hard to deny that the neo-Brandeisian officials who currently helm many antitrust agencies around the world (particularly in the United States) tend to perceive their mission as maximizing antitrust enforcement. They are often willing to interpret the law liberally in order to further this goal. As Khan herself has stated: “Big picture: Success for us looks like making sure the public know the FTC is in their corner fighting for them against illegal business practices.”[38] Her European counterpart Margrethe Vestager (who shares several neo-Brandeisian ideas, even if she cannot[39] properly be described as one) seemingly shares the view that it is necessary to go beyond existing competition tools:
“Based on our own experience in Europe of cases against Google, Apple and Amazon, long investigations and heavy penalties alone have not addressed the structural entrenchment of companies holding market power. Europe could have continued to pursue a case-by-case antitrust approach, but this would have carried the risk of playing a never-ending game of whack-a-mole. That is why we decided to complement case-by-case enforcement with “ex-ante” regulation that helps to address upfront the systemic anti-competitive behaviour which is often replicated from one case to another.”[40]
Elsewhere, Vestager has stated that: “These are necessary tools, but are they enough? I think we should be bolder. We should call for a renewed international commitment to fair competition.” This is very much in line with neo-Brandeisian thinking, which has long claimed antitrust enforcement is inherently and inextricably political. In the words of Robert Pitofsky:
“Although economic concerns would remain paramount, to ignore these non-economic factors would be to ignore the bases of antitrust legislation and the political consensus by which antitrust has been supported.”[41]
Of course, it is an open question whether future antitrust leaders will take a page out of the neo-Brandeisian playbook. But why wouldn’t they? If recent antitrust efforts have taught us anything, it is that enforcers can achieve far more than what a dispassionate reading of the law may suggest. For instance, there is every reason to believe that, if and when leadership of the U.S. antitrust agencies shifts back to the Republican appointees, new leaders will quickly repeal the current merger guidelines and replace them with ones that better fit their preferences. They will also have learnt that the threat of merger investigations is a powerful tool to deter transactions they do not like. This could be used to attack politically disfavored entities like Chinese firms, the “mainstream” media, online platforms, etc. After all, public agencies are known to favor new rules—or new readings of old ones—that grant them more power.[42]
The politicization of antitrust enforcement that has grown under neo-Brandeisian leaders may, in fact, become the new normal. If so, this would represent a powerful, although unfortunate, legacy for neo-Brandeisianism.
4.3. The Case Against
Of course, it can also be argued that antitrust law has always been politicized. Maybe neo-Brandeisian enforcers like Lina Khan are simply more open about their priors. If that is the case, then it is hard to argue that the neo-Brandeisian movement has truly shifted the norms that govern antitrust enforcement.
There is some empirical research to support the thesis that antitrust enforcement has long been politicized. Dan Wood and James Anderson show that changes in administration have influenced both the resources available to antitrust agencies and the intensity and type of enforcement activities.[43] More recently, an empirical study by Mihir Mehta, Suraj Srinivasan, and Wanli Zhao finds that “acquirers and targets receive relatively favorable antitrust review outcomes when they are located in the districts of politicians that serve on congressional committees that oversee antitrust regulators.”[44]
At a more granular level, it is noteworthy that the vertical-merger guidelines, published under the previous FTC and DOJ leadership also failed to gain bipartisan support, just like the more recent merger guidelines issued under neo-Brandeisian leadership.[45] The last bipartisan merger guidelines date back to 2010. This suggests that politicization of the antitrust agencies is not solely the prerogative of neo-Brandeisian officials.
The fact that antitrust enforcement has always been politicized does not, however, disprove the possibility it has become more so under neo-Brandeisian leadership. But it’s clear that the neo-Brandeisians’ embrace of politicized antitrust enforcement is not entirely new.
5. Conclusion
As we explain above, the most lasting impact of neo-Brandeisianism may well be erosion of the traditional separation between technocratic policymaking and the world of politics.[46] The dismantling of this traditional separation—which has seen competition enforcers shift from neutral arbiters to more activist stakeholders—will likely have a lasting impact. And this will be true regardless of future enforcers’ political leanings. Whether the neo-Brandeisian movement is the cause (albeit partial) or merely a symptom of this shift is a separate question.
From a more substantive standpoint, there are reasons to believe the ideological pendulum will shift back to the center sometime in the future. Key neo-Brandeisian antitrust policies—such as attempts to refocus the law toward the protecting competitors, downplaying economic effects, spurning the consumer welfare standard and ignoring precedent—will likely be defeated in the courts, while the movement’s disdain for consumer welfare may prove to be its Achilles heel.
There is, however, every reason to believe the movement will have a lasting legacy in the narrower field of digital competition regulation. The regulations that have been passed are, indeed, very unlikely to be repealed anytime soon, and will likely shift competition enforcement dramatically in digital platform markets.
Ultimately, there is reason to believe the neo-Brandeisians’ legacy will be a story of a glass either half empty or half full. The movement appears unlikely to achieve its full ambitions of radically and lastingly reforming antitrust enforcement, particularly in the United States. But its impact on digital competition regulation and the ways that antitrust agencies choose to enforce the law are probably far beyond the wildest dreams of the then-law student who penned the movement’s founding article.
Dirk Auer and Lazar Radic
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Citation: Dirk Auer and Lazar Radic, The Legacy of Neo-Brandeisianism: History or Footnote?, Future of Neo-Brandeis Movement (ed. Thibault Schrepel & Anouk van der Veer), Network Law Review, Summer 2024.
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References
[1] Lina M Khan, Amazon’s Antitrust Paradox, The Yale Law Journal, (2017), https://www.yalelawjournal.org/pdf/e.710.Khan.805_zuvfyyeh.pdf
[2] Left-leaning ideas are more popular in US law schools and academia. However, it does not seem that these biases carry through to the profession. A comprehensive study conducted in 2015 found lawyers to be an ideologically heterogenous group. Antitrust lawyers place on the middle of the ideological spectrum (p.45).
[3] The EU Digital Agenda, Belgium FPS Foreign Affairs, (Dec. 20, 2023), https://diplomatie.belgium.be/en/policy/coordination-european-affairs/policy-belgium-within-eu/european-digital-agenda
[4] Herbert Hovenkamp, The Areeda-Turner Treatise in Antitrust Analysis, Fed Legal Pub (1996), https://journals.sagepub.com/doi/abs/10.1177/0003603X9604100406
[5] Jason Furman et Al., Unlocking Digital Competition: Report of the Digital Competition Expert Panel, Gov.UK Publications (Mar.2019), https://assets.publishing.service.gov.uk/media/5c88150ee5274a230219c35f/unlocking_digital_competition_furman_review_web.pdf
[6] Yves-Alexandre de Montjoy, Heike Schweitzer & Jacques Crémer, Competition Policy for the Digital Era, Pubs. Off. of the EU (2019), https://op.europa.eu/en/publication-detail/-/publication/21dc175c-7b76-11e9-9f05-01aa75ed71a1/language-en
[7] Sally Lee, How Mega-Corporations Are Crippling Democracy, Columbia Mag. (2019, https://magazine.columbia.edu/article/how-mega-corporations-are-crippling-democracy
[8] Zephyr Teachout & Lina Khan, Market Structure and Political Law: A Taxonomy of Power, Duke Journal of Constitutional Law & Public Policy (2014), https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1087&context=djclpp
[9] Sam Trendall, Digital Markets Unit Grows Headcount to 70, Pub. Tech. (Nov. 25, 2022), https://www.publictechnology.net/2022/11/25/business-and-industry/digital-markets-unit-grows-headcount-70/
[10] Max von Thun & Cori Crider, A New British Law Charts a Course Towards Reining in Big Tech, Tech Policy Press (Jun. 4, 2024), https://www.techpolicy.press/a-new-british-law-charts-a-course-towards-reining-in-big-tech/
[11] Meghan McCarty Carino, A New EU Law Aims to Tame Tech Giants. But Enforcing It Could Turn Out to Be Tricky, Marketplace (Mar. 7, 2024), https://www.marketplace.org/2024/03/07/a-new-eu-law-aims-to-tame-tech-giants-but-enforcing-it-could-turn-out-to-be-tricky/
[12] Case C-472/20, (Dec. 2, 2021), https://curia.europa.eu/juris/document/document.jsf?text=&docid=249001&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=9713775
[13] Geoffrey A. Manne, Dirk Auer, Brian Albrecht, Eric Fruits, Daniel J. Gilman & Lazar Radic, Comments of the International Center for Law and Economics on the FTC & DOJ Draft Merger Guidelines, ICLE (Sep. 18, 2023), https://laweconcenter.org/resources/comments-of-the-international-center-for-law-and-economics-on-the-ftc-doj-draft-merger-guidelines/
[14] Fiona Scott Morton et al., Digital Platforms: Committee Report, Stigler Ctr. for the Study of the Econ. & the State Chicago Booth, (2019), https://www.chicagobooth.edu/-/media/research/stigler/pdfs/digital-platforms—committee-report—stigler-center.pdf
[15] Lazar Radic, Political Philosophy, Competition, and Competition Law: The Road to and from Neoliberalism, Part 3, Truth on The Market (Oct. 10, 2022), https://truthonthemarket.com/2022/10/10/political-philosophy-competition-and-competition-law-the-road-to-and-from-neoliberalism-part-3/
[16] Josh Sisco & Rebecca Kern, FTC’s Lina Khan Faces Jim Jordan in House Judiciary Hearing, Politico (July 13, 2023), https://www.politico.com/news/2023/07/13/ftc-khan-jim-jordan-house-judiciary-hearing-00106063
[17] Lauren Feiner, Why Epic’s Lawsuit Against Apple Just Won’t Quit, The Verge (May 28, 2024),https://www.theverge.com/2024/5/28/24158911/apple-v-epic-evidentiary-hearing-app-store-payments
[18] William E. Kovacic, The Modern Evolution of U.S. Competition Policy Enforcement Norms, FTC (2003), https://www.ftc.gov/sites/default/files/documents/public_statements/modern-evolution-u.s.competition-policy-enforcement-norms/0304modernevolution.pdf
[19] 15 U.S. Code § 13
[20] On the origin and intent of the Robinson-Patman Act, see Marius Schwartz, The Perverse Effects of the Robinson-Patman Act, The Antitrust Bulletin 31(3), pp. 733-760 (1986); the provision in question is §3.
[21] Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164 (2006), https://supreme.justia.com/cases/federal/us/546/164/
[22] Nicolas Petit & Lazar Radic, The Necessity of a Consumer Welfare Standard in Antitrust Analysis, Promarket (Dec. 18, 2023), https://www.promarket.org/2023/12/18/the-necessity-of-a-consumer-welfare-standard-in-antitrust-analysis/
[23] Id.
[24] William J. Kolasky, Conglomerate Mergers and Range Effects: It’s a Long Way from Chicago to Brussels, U.S. Dept of Justice (Nov. 9, 2001), https://www.justice.gov/atr/speech/conglomerate-mergers-and-range-effects-its-long-way-chicago-brussels
[25] Daniel A. Crane, Chicago, Post-Chicago, and Neo-Chicago, University of Michigan Law School Scholarship Repository (2009), https://repository.law.umich.edu/
[26] Nicolas Petit and David Teece, Taking Ecosystems Competition Seriously in the Digital Economy: A (Preliminary) Dynamic Competition/Capabilities Perspective, OECD Hearing on Competition Economics of Digital Ecosystems (2020).
[27] Guy Rolnik, Q&A With FTC Chair Lina Khan: “The Word ‘Efficiency’ Doesn’t Appear Anywhere in the Antitrust Statutes”, Promarket (June 3, 2022), https://www.promarket.org/2022/06/03/qa-with-ftc-chair-lina-khan-the-word-efficiency-doesnt-appear-anywhere-in-the-antitrust-statutes/
[28] Sandeep Vaheesan & Andy Fitch, The Treatise That Has Misled Antitrust Lawyers for Decades, LPE Project (Oct. 5, 2023), https://lpeproject.org/blog/the-treatise-that-has-misled-antitrust-lawyers-for-decades/
[29] Marcia Brown, The Next Generation of Law Students Is Obsessed with Lina Khan, Politico (Jun. 11, 2023), https://www.politico.com/news/magazine/2023/11/06/law-students-antitrust-lina-khan-00124240
[30] Amy Kapczynski, Corinne Blalock & Jay Varellas, Contemporary Problems in Anti-Monopoly and Regulated Industries II: How We Got Here, LPE Project (2023), https://lpeproject.org/amri/how-we-got-here/
[31] Lazar Radic, Geoffrey A. Manne & Dirk Auer, Regulate for What? A Closer Look at the Rationale and Goals of Digital Competition Regulations, ICLE (May. 15, 2024), https://laweconcenter.org/resources/regulate-for-what-a-closer-look-at-the-rationale-and-goals-of-digital-competition-regulations/
[32] Todd J. Zywicki, The Law and Political Economy Project: A Critical Analysis, SSRN (May 21, 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4836562
[33] Jim Jordan, Abuse of Power, Waste of Resources, and Fear, House Judiciary Committee Republicans (Feb. 22, 2024), https://judiciary.house.gov/sites/evo-subsites/judiciary.house.gov/files/evo-media-document/2024-02-22%20Abuse%20of%20Power%20Waste%20of%20Resources%20and%20Fear.pdf
[34] Guy Rolnik, Q&A With FTC Chair Lina Khan: “The Word ‘Efficiency’ Doesn’t Appear Anywhere in the Antitrust Statutes,” Promarket (June. 3, 2022), https://www.promarket.org/2022/06/03/qa-with-ftc-chair-lina-khan-the-word-efficiency-doesnt-appear-anywhere-in-the-antitrust-statutes/
[35] Luke M. Froeb, D. Daniel Sokol & Liad Wagman, Cost-Benefit Analysis Without the Benefits or the Analysis: How Not to Draft Merger Guidelines, ICLE (Aug. 14, 2023), https://laweconcenter.org/wp-content/uploads/2023/08/SSRN-id4537425.pdf
[36] Press Release, Sen. Cruz Blasts FTC for Colluding With EU to Target American Businesses, Senate Committee on Commerce, Science, and Transportation (Aug. 22, 2023)
[37] New York Times Events, Lina Khan Explains the F.T.C.’s Aggressive Strategy, YouTube (Nov. 2023), at 5:40, https://www.youtube.com/watch?v=_mhG9WLpc30&t=340s
[38] Id. at 3:00.
[39] Gian M. Volpicelli, Margrethe Vestager Fined Google and Apple Billions, Now She May Lead Europe, Wired (May 29. 2019), https://www.wired.com/story/margrethe-vestager-eu-fines-google/
[40] Margrethe Vestager, Speech by EVP Margrethe Vestager at the EU Competition Day: Competition and Competitiveness in Uncertain Geopolitical Times, EU Commission (Apr. 26, 2024), https://ec.europa.eu/commission/presscorner/detail/en/speech_24_2324
[41] Robert Pitofsky, The Political Content of Antitrust, Penn Carey Law: Legal Scholarship Repository (1979), https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4867&context=penn_law_review
[42] William A. Niskanen, Bureaucracy and Representative Government, Taylor & Francis (2017)
[43] B. Dan Wood & James E. Anderson, The Politics of U.S. Antitrust Regulation, American Journal of Political Science (Feb. 1993), https://www.jstor.org/stable/2111522
[44] Mihir N. Mehta, Suraj Srinivasan & Wanli Zhao, The Politics of M&A Antitrust, Journal of Accounting Research (Nov. 5, 2019), https://onlinelibrary.wiley.com/doi/abs/10.1111/1475-679X.12291?casa_token=pNhW9V4IrncAAAAA%3ASsV3TwlEcsrHuBmx5FMXu4T-FmdJeqguro_rzF84mjJ_W7HMZWmowfatE2yELLYmjVrPQAD53pYxXg
[45] Joint Dissenting Statement of Commissioners Rohit Chopra and Rebecca Kelly Slaughter Regarding the Vertical Merger Commentary, FTC (Dec. 22, 2020) https://www.ftc.gov/system/files/documents/public_statements/1585062/p181201chopraslaughtervmcdissent.pdf
[46] See Kahn, 2017, at n.167, arguing that antitrust law must take political values into account.
