Missteps of Antitrust "Reformers"
Lina Khan and her supporters sought to transform antitrust law. However, it appears that Trump’s administration is poised to put a stop to those efforts.
TroibNews 
When the Justice Department successfully blocked the 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.
However, this proclamation may have been premature. Following the deal's collapse, Spirit’s stock plummeted, leading the company to declare bankruptcy, lay off hundreds of employees, and increase ticket prices. Recently, a court approved a reorganization plan that will eliminate the company’s stockholders and transfer control to significant bondholders, primarily hedge funds and asset managers.
This situation highlights the discrepancy between the rhetoric and reality of the Biden administration’s antitrust agenda, as well as its tangible effects on the very people it intended to help.
Now, President Donald Trump’s appointees have taken charge of the Justice Department and the Federal Trade Commission, igniting significant speculation across the political spectrum regarding how his administration will enforce antitrust laws. Progressive advocates of Biden’s initiatives have predicted that his approach won’t diminish, with some recently celebrating a “new antitrust consensus.”
Yet, those forecasts may be misguided. Indications suggest that the Trump-era FTC is preparing to adopt a radically different stance, as a senior FTC official revealed that the agency has initiated an internal investigation into press leaks that occurred during the tenure of FTC Chair Lina Khan. The official suggested that there was an inappropriate relationship between career FTC staff appointed under Khan and certain media outlets they labeled as “left-wing.” Khan declined to comment.
When it comes to antitrust enforcement, Trump’s selections for the DOJ and FTC have already indicated a significant shift in direction.
For many years, antitrust enforcement was driven by the belief that protecting consumer interests should be regulators’ primary concern. In contrast, Biden’s antitrust enforcers dismissed that approach, advocating a more recent, contentious theory that, as Khan articulated, suggests antitrust law should prioritize “workers, suppliers, innovators, and independent entrepreneurs” while attempting to diminish the economic and political clout of large corporations. The implied suggestion is that higher consumer prices may actually be a necessary and desirable trade-off to achieve these objectives.
However, with the arrival of the Trump administration, the consumer welfare standard is likely to be reinstated, signaling an end to the Biden administration’s effort to overhaul antitrust policy. This shift could result in an increase in mergers and a decrease in proposed breakups. Big Tech will remain under scrutiny, albeit for different reasons, as conservatives raise accusations of politically motivated censorship and content moderation; the FTC recently announced an inquiry into censorship practices by technology platforms.
While the Trump administration is not expected to adopt a completely hands-off approach, it’s worth noting that some of the Biden administration's most notable antitrust legal victories—including a significant win against Google—originated during Trump’s term. Nonetheless, a distinctive shift is anticipated.
“I think they might return to a more practical view — pro-innovation, pro-business, but not pro-monopoly,” suggested Andrew Finch, who served as acting head of the DOJ Antitrust Division during Trump’s first administration and later as deputy under Makan Delrahim, the Senate-confirmed appointee who led the office.
As the Democratic Party works to recover from a challenging election, discussions surrounding the efficacy of Biden’s antitrust enforcers are underway: Were they successful, either politically or substantively? This debate continues, and its implications could significantly influence the party’s political strategy and governance for the foreseeable future.
“Mergers can benefit the economy,” Finch told me. “This idea that consolidation in and of itself is inherently bad is wrong.”
This perspective, once widely accepted, contrasts sharply with the views of Biden’s antitrust enforcers, who often celebrated the record of blocked and abandoned mergers as inherently positive for the economy and consumers, despite a lack of robust economic justification for this stance.
Although JD Vance made some supportive comments about Khan on the 2024 campaign trail, Trump has chosen a markedly different path.
Andrew Ferguson, the current chair of the FTC, secured his position after proposing, among other things, to “Reverse Lina Khan’s Anti-Business Agenda” and “Stop Lina Khan’s war on mergers.” Ferguson, who previously served as a commissioner at the FTC, opposed many of Khan's more ambitious initiatives, including a rule against noncompete agreements which has faced significant legal challenges. He is likely to ultimately rescind this rule.
Emulating Trump’s agenda, the FTC recently announced an investigation into potential corporate collusion regarding DEI policies, and separately withdrew an investigative demand directed at MGM under Khan’s leadership.
Gail Slater, who is set to replace Biden appointee Jonathan Kanter as head of the DOJ’s antitrust division, indicated during her confirmation hearing that she intends to conserve enforcement resources due to the high costs associated with litigation—potentially signaling that she will be less inclined to pursue lawsuits to address perceived antitrust issues.
Ferguson surprised some observers when he stated that the agencies would continue using a set of revised merger guidelines created under Khan and Kanter, although this may not have the significance that supporters anticipate. The guidelines are ultimately a collection of points that enforcers can select from to pursue their agendas; it is perhaps unsurprising that Ferguson would embrace the broad discretion these guidelines allow, likely utilizing them in vastly different ways.
What priorities might the Trump administration focus on? During her confirmation hearing, Slater identified potential enforcement areas to come. She suggested that the DOJ could concentrate on boycotts against businesses associated with conservative causes, de-banking in cryptocurrency sectors, and alleged de-platforming of conservatives on tech platforms.
The success of Biden’s antitrust initiatives was intensely debated during his term, even among those on the left, but the results are now clear—and they are not promising.
Democrats attempted to pass ambitious legislation aimed at dismantling large tech companies but ultimately fell short due to a lack of votes.
Sen. Amy Klobuchar, who led the effort in the Senate, pointed out that while the Democrats did not achieve everything they hoped for in 2022, they did secure significant legislative victories, including measures to enhance resources for antitrust enforcement and to allow state enforcers to keep cases in their preferred courts. “We passed landmark antitrust bills,” Klobuchar noted in a statement.
Senate Minority Leader Chuck Schumer, who led the majority during the 2022 effort, concurred with Klobuchar’s sentiment, stating, “While it’s not everything we had hoped to get done, it was a good first step.”
The track record of Biden’s appointees in federal agencies and courts has been mixed. But this is not merely my observation. The New York Times reported that the administration “faced big setbacks in court” and experienced “plenty of losses.” Meanwhile, The Wall Street Journal noted that Khan “failed to win” cases that could have advanced the law in the tech sector. Bloomberg similarly reported that Khan ultimately achieved “mixed results.”
The situation was analogous at the DOJ under Kanter. There were notable accomplishments, including the victory in the Google trial that began under Trump, but also significant losses. An ambitious effort to advance the law through litigation typically brings both successes and failures. However, this mixed record has made it difficult for supporters to claim triumph, often inflating the importance of modest regulatory measures and overlooking those they failed to implement.
Ultimately, Khan and other prominent Biden officials, including Tim Wu, came into their roles aiming to dismantle the consumer welfare standard—historically the guiding principle for enforcers focused on safeguarding consumers from monopolistic practices. Yet this standard remains intact, and despite their assertions to the contrary, Biden’s enforcers did not fundamentally alter the law.
The Biden-era antitrust approach was one facet of Bidenomics, a broader set of policies that have come under intense scrutiny following the Democrats’ sweeping loss in the 2024 election.
Among the significant challenges faced by the Biden administration was inflation and voters’ concerns about rising prices. Concurrently, the underlying intellectual framework of Biden’s antitrust enforcers dismissed the idea that policymakers should prioritize keeping prices low for consumers. Even if one sets aside the merits of that perspective, it was clearly politically problematic during an inflationary period.
Moreover, Biden’s antitrust agenda was not particularly populist, as it failed to resonate with the general public.
As Herbert Hovenkamp, a leading scholar on U.S. antitrust law, recently observed, the most credible public polling in this realm reveals “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-labeled antitrust “reformers” in the party identify themselves, often cite polling data that tends to be ideologically biased, commissioned by affiliated special interest groups that already endorse their work. A poll questioning the public’s views on “corporate monopolies” is likely to yield a predictable response, offering little insight, much like asking what Americans think about serial killers.
The public appears to favor many of the corporations that neo-Brandeisians criticize. Generally, Americans express favorable opinions about companies like Amazon and Google.
Furthermore, a poll conducted after the 2024 election showed that around half of voters rated “controlling inflation and strengthening the economy” as a top concern, whereas only 2 percent prioritized “regulating technology companies.”
To clarify, Democrats do not need to abandon rigorous antitrust enforcement to succeed on Election Day. A more appealing initiative would focus on eliminating anti-competitive behavior in markets for goods and services that significantly affect the well-being and livelihoods of working-class Americans, rather than targeting the color of their text messages.
The party is currently grappling both privately and publicly with the influence of “the groups”—a coalition of single-issue special interest organizations that have exerted considerable sway in Democratic politics while distancing the party from the concerns of everyday Americans.
The neo-Brandeisians are among these groups.
Like others recently scrutinized, much of their advocacy has been funded by the Hewlett Foundation, which has sought to reshape policy and politics beyond conventional neoliberal economics.
The Hewlett Foundation has supported organizations such as the American Economic Liberties Project and the Open Markets Institute, both of which aimed to bolster the Biden antitrust enforcement initiative, in addition to publications like The American Prospect, which has long been a platform for the neo-Brandeisian agenda. Notably, it was the Prospect that recently claimed a “new antitrust consensus” and provided Biden with an opportunity to defend his post-election legacy, a legacy that ultimately paved the way for Trump.
The past four years demonstrate that, despite the diligent efforts of Khan, Kanter, and their ideological comrades, antitrust enforcement does not yield broad, effective, and sustainable economic policymaking.
Litigation is inherently uncertain, and courts lack the reliability and predictability necessary for it to succeed consistently. Moreover, regulatory reforms can swing dramatically between administrations—such as the current shift we are witnessing—potentially undermining or even erasing previous efforts.
A more straightforward approach to improving conditions for working-class Americans from a liberal economic standpoint is one of the oldest concepts around—redistributive taxing and spending. The Democratic Party has long shied away from proposals that might resemble tax increases for the middle class, yet one of the most consistently popular ideas in American politics is raising taxes on corporations and the wealthy.
If the Democratic Party seeks to adopt a populist stance, it should listen to the voices of the American people.
In the meantime, Trump has claimed the populist mantle for himself, and Republicans appear poised to steer antitrust policy in a markedly different direction.
Alejandro Jose Martinez contributed to this report for TROIB News
However, this proclamation may have been premature. Following the deal's collapse, Spirit’s stock plummeted, leading the company to declare bankruptcy, lay off hundreds of employees, and increase ticket prices. Recently, a court approved a reorganization plan that will eliminate the company’s stockholders and transfer control to significant bondholders, primarily hedge funds and asset managers.
This situation highlights the discrepancy between the rhetoric and reality of the Biden administration’s antitrust agenda, as well as its tangible effects on the very people it intended to help.
Now, President Donald Trump’s appointees have taken charge of the Justice Department and the Federal Trade Commission, igniting significant speculation across the political spectrum regarding how his administration will enforce antitrust laws. Progressive advocates of Biden’s initiatives have predicted that his approach won’t diminish, with some recently celebrating a “new antitrust consensus.”
Yet, those forecasts may be misguided. Indications suggest that the Trump-era FTC is preparing to adopt a radically different stance, as a senior FTC official revealed that the agency has initiated an internal investigation into press leaks that occurred during the tenure of FTC Chair Lina Khan. The official suggested that there was an inappropriate relationship between career FTC staff appointed under Khan and certain media outlets they labeled as “left-wing.” Khan declined to comment.
When it comes to antitrust enforcement, Trump’s selections for the DOJ and FTC have already indicated a significant shift in direction.
For many years, antitrust enforcement was driven by the belief that protecting consumer interests should be regulators’ primary concern. In contrast, Biden’s antitrust enforcers dismissed that approach, advocating a more recent, contentious theory that, as Khan articulated, suggests antitrust law should prioritize “workers, suppliers, innovators, and independent entrepreneurs” while attempting to diminish the economic and political clout of large corporations. The implied suggestion is that higher consumer prices may actually be a necessary and desirable trade-off to achieve these objectives.
However, with the arrival of the Trump administration, the consumer welfare standard is likely to be reinstated, signaling an end to the Biden administration’s effort to overhaul antitrust policy. This shift could result in an increase in mergers and a decrease in proposed breakups. Big Tech will remain under scrutiny, albeit for different reasons, as conservatives raise accusations of politically motivated censorship and content moderation; the FTC recently announced an inquiry into censorship practices by technology platforms.
While the Trump administration is not expected to adopt a completely hands-off approach, it’s worth noting that some of the Biden administration's most notable antitrust legal victories—including a significant win against Google—originated during Trump’s term. Nonetheless, a distinctive shift is anticipated.
“I think they might return to a more practical view — pro-innovation, pro-business, but not pro-monopoly,” suggested Andrew Finch, who served as acting head of the DOJ Antitrust Division during Trump’s first administration and later as deputy under Makan Delrahim, the Senate-confirmed appointee who led the office.
As the Democratic Party works to recover from a challenging election, discussions surrounding the efficacy of Biden’s antitrust enforcers are underway: Were they successful, either politically or substantively? This debate continues, and its implications could significantly influence the party’s political strategy and governance for the foreseeable future.
“Mergers can benefit the economy,” Finch told me. “This idea that consolidation in and of itself is inherently bad is wrong.”
This perspective, once widely accepted, contrasts sharply with the views of Biden’s antitrust enforcers, who often celebrated the record of blocked and abandoned mergers as inherently positive for the economy and consumers, despite a lack of robust economic justification for this stance.
Although JD Vance made some supportive comments about Khan on the 2024 campaign trail, Trump has chosen a markedly different path.
Andrew Ferguson, the current chair of the FTC, secured his position after proposing, among other things, to “Reverse Lina Khan’s Anti-Business Agenda” and “Stop Lina Khan’s war on mergers.” Ferguson, who previously served as a commissioner at the FTC, opposed many of Khan's more ambitious initiatives, including a rule against noncompete agreements which has faced significant legal challenges. He is likely to ultimately rescind this rule.
Emulating Trump’s agenda, the FTC recently announced an investigation into potential corporate collusion regarding DEI policies, and separately withdrew an investigative demand directed at MGM under Khan’s leadership.
Gail Slater, who is set to replace Biden appointee Jonathan Kanter as head of the DOJ’s antitrust division, indicated during her confirmation hearing that she intends to conserve enforcement resources due to the high costs associated with litigation—potentially signaling that she will be less inclined to pursue lawsuits to address perceived antitrust issues.
Ferguson surprised some observers when he stated that the agencies would continue using a set of revised merger guidelines created under Khan and Kanter, although this may not have the significance that supporters anticipate. The guidelines are ultimately a collection of points that enforcers can select from to pursue their agendas; it is perhaps unsurprising that Ferguson would embrace the broad discretion these guidelines allow, likely utilizing them in vastly different ways.
What priorities might the Trump administration focus on? During her confirmation hearing, Slater identified potential enforcement areas to come. She suggested that the DOJ could concentrate on boycotts against businesses associated with conservative causes, de-banking in cryptocurrency sectors, and alleged de-platforming of conservatives on tech platforms.
The success of Biden’s antitrust initiatives was intensely debated during his term, even among those on the left, but the results are now clear—and they are not promising.
Democrats attempted to pass ambitious legislation aimed at dismantling large tech companies but ultimately fell short due to a lack of votes.
Sen. Amy Klobuchar, who led the effort in the Senate, pointed out that while the Democrats did not achieve everything they hoped for in 2022, they did secure significant legislative victories, including measures to enhance resources for antitrust enforcement and to allow state enforcers to keep cases in their preferred courts. “We passed landmark antitrust bills,” Klobuchar noted in a statement.
Senate Minority Leader Chuck Schumer, who led the majority during the 2022 effort, concurred with Klobuchar’s sentiment, stating, “While it’s not everything we had hoped to get done, it was a good first step.”
The track record of Biden’s appointees in federal agencies and courts has been mixed. But this is not merely my observation. The New York Times reported that the administration “faced big setbacks in court” and experienced “plenty of losses.” Meanwhile, The Wall Street Journal noted that Khan “failed to win” cases that could have advanced the law in the tech sector. Bloomberg similarly reported that Khan ultimately achieved “mixed results.”
The situation was analogous at the DOJ under Kanter. There were notable accomplishments, including the victory in the Google trial that began under Trump, but also significant losses. An ambitious effort to advance the law through litigation typically brings both successes and failures. However, this mixed record has made it difficult for supporters to claim triumph, often inflating the importance of modest regulatory measures and overlooking those they failed to implement.
Ultimately, Khan and other prominent Biden officials, including Tim Wu, came into their roles aiming to dismantle the consumer welfare standard—historically the guiding principle for enforcers focused on safeguarding consumers from monopolistic practices. Yet this standard remains intact, and despite their assertions to the contrary, Biden’s enforcers did not fundamentally alter the law.
The Biden-era antitrust approach was one facet of Bidenomics, a broader set of policies that have come under intense scrutiny following the Democrats’ sweeping loss in the 2024 election.
Among the significant challenges faced by the Biden administration was inflation and voters’ concerns about rising prices. Concurrently, the underlying intellectual framework of Biden’s antitrust enforcers dismissed the idea that policymakers should prioritize keeping prices low for consumers. Even if one sets aside the merits of that perspective, it was clearly politically problematic during an inflationary period.
Moreover, Biden’s antitrust agenda was not particularly populist, as it failed to resonate with the general public.
As Herbert Hovenkamp, a leading scholar on U.S. antitrust law, recently observed, the most credible public polling in this realm reveals “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-labeled antitrust “reformers” in the party identify themselves, often cite polling data that tends to be ideologically biased, commissioned by affiliated special interest groups that already endorse their work. A poll questioning the public’s views on “corporate monopolies” is likely to yield a predictable response, offering little insight, much like asking what Americans think about serial killers.
The public appears to favor many of the corporations that neo-Brandeisians criticize. Generally, Americans express favorable opinions about companies like Amazon and Google.
Furthermore, a poll conducted after the 2024 election showed that around half of voters rated “controlling inflation and strengthening the economy” as a top concern, whereas only 2 percent prioritized “regulating technology companies.”
To clarify, Democrats do not need to abandon rigorous antitrust enforcement to succeed on Election Day. A more appealing initiative would focus on eliminating anti-competitive behavior in markets for goods and services that significantly affect the well-being and livelihoods of working-class Americans, rather than targeting the color of their text messages.
The party is currently grappling both privately and publicly with the influence of “the groups”—a coalition of single-issue special interest organizations that have exerted considerable sway in Democratic politics while distancing the party from the concerns of everyday Americans.
The neo-Brandeisians are among these groups.
Like others recently scrutinized, much of their advocacy has been funded by the Hewlett Foundation, which has sought to reshape policy and politics beyond conventional neoliberal economics.
The Hewlett Foundation has supported organizations such as the American Economic Liberties Project and the Open Markets Institute, both of which aimed to bolster the Biden antitrust enforcement initiative, in addition to publications like The American Prospect, which has long been a platform for the neo-Brandeisian agenda. Notably, it was the Prospect that recently claimed a “new antitrust consensus” and provided Biden with an opportunity to defend his post-election legacy, a legacy that ultimately paved the way for Trump.
The past four years demonstrate that, despite the diligent efforts of Khan, Kanter, and their ideological comrades, antitrust enforcement does not yield broad, effective, and sustainable economic policymaking.
Litigation is inherently uncertain, and courts lack the reliability and predictability necessary for it to succeed consistently. Moreover, regulatory reforms can swing dramatically between administrations—such as the current shift we are witnessing—potentially undermining or even erasing previous efforts.
A more straightforward approach to improving conditions for working-class Americans from a liberal economic standpoint is one of the oldest concepts around—redistributive taxing and spending. The Democratic Party has long shied away from proposals that might resemble tax increases for the middle class, yet one of the most consistently popular ideas in American politics is raising taxes on corporations and the wealthy.
If the Democratic Party seeks to adopt a populist stance, it should listen to the voices of the American people.
In the meantime, Trump has claimed the populist mantle for himself, and Republicans appear poised to steer antitrust policy in a markedly different direction.
Alejandro Jose Martinez contributed to this report for TROIB News
