For a few weeks toward the end of 2023, some of the hottest dinner-table debates weren’t over politics or religion. The topic: who belonged—and who didn’t—in the College Football Playoff. Even after the selection committee announced its picks, people kept arguing. But take this kind of debate too far, and it quickly starts bordering on the absurd. You can’t “prove” (for example) that FSU’s win–loss record made it a better team than, say, Texas. The two played in different conferences, against different opponents.
Even so, around the same time, a similar debate was simmering in antitrust circles. A handful of skeptics and media outlets hungry for clicks had been trying to gin up a new attack on new-wave enforcers: going after their win–loss records. One piece in Fortune portrayed the FTC under Chair Lina Khan as having a “zero-win track record.” Another at ProMarket was premised entirely on the FTC losing two preliminary-injunction merger cases. Republicans in Congress tried to beat the same drum, demanding that Chair Khan explain a “poor” win-loss record when (supposedly) the agency had historically amassed a higher “win rate.”
Should We Just Ignore “Win-Loss” Squabbles?
It’s tempting to just ignore this noise. For one thing, these takes have aged like milk. Both the FTC and the DOJ have been on an absolute tear over the past several weeks. FTC won its IQVIA merger challenge, blocked the Sanofi/Maze acquisition, blocked the John Muir/Tenet merger, got a favorable Fifth Circuit decision that forced Illumina and Grail to abandon their merger, beat a motion to dismiss the Syngenta/Corteva complaint, and secured a Second Circuit win banning Martin Shkreli from the pharmaceutical industry for life. DOJ’s Antitrust Division, for its part, won a high-profile trial to block the proposed tie-up of JetBlue and Spirit.
And in any event, if you can’t just compare win-loss records to figure out which football team is the “best,” then you definitely can’t do so for a subject as complex, contingent, and contestable as the antimonopoly laws. For example, the far-right political FTC appointees under President Reagan didn’t just dismiss all the cases filed by the previous administration. Instead, they let some proceed, then issued opinions that rewrote the law to favor defendants. These were “losses” for FTC complaint counsel, but wins for the broader project of clipping antitrust’s wings.
Looking only at wins and losses can also overlook landmark shifts that take place outside of agency-versus-defendant litigation. Throughout the 2010s, the federal antitrust agencies frequently attacked coordination and organizing efforts by workers, perhaps most infamously via an amicus brief that favored the Chamber of Commerce (acting as a front for Uber and Lyft) against ride-hailing service drivers attempts to collectively bargain. In late 2022, the FTC and DOJ filed another amicus brief—but this one sided with workers against harmful “no-hire” provisions in fast-food franchise agreements. This was nothing short of a sea change, but it won’t show up on any “win/loss” accounting.
Beyond “Wins”: Are They Making Progress on Priorities?
Simplistic win–loss analysis simply doesn’t work here. That said, it can be useful to step back and ask how things are going. We’re still just a few years into this new era of antimonopoly thought and action, but that’s far enough to start seeing some connective threads and themes. Instead of squabbling over win-loss “track records,” we can ask whether new-wave enforcers are achieving their goals.
Broaden the Analytical Toolkit
Late last year, the FTC and DOJ Antitrust Division released their much-anticipated “Merger Guidelines.” One immediately obvious difference from, say, the “Vertical Merger Guidelines” hurriedly posted near the end of the Trump Era is that the 2023 document takes a much more holistic approach. Rather than pigeonholing some mergers as “horizontal”, others as “vertical”, and forgetting about all the rest, these agencies have collected all the merger-enforcement tools into a single document. Among them are several that previous administrations had almost entirely—and in some cases, entirely—discarded.
That came as no surprise to anyone who’s been closely watching these enforcers in action. New-wave critiques underscore that mega-mergers can cause myriad harms. Addressing those harms requires a robust set of legal tools. From revitalizing “actual” and “perceived” potential-competition theories in Meta/Within, to reviving the Supreme Court’s functional-factor framework in Illumina/Grail, to dusting off the share-based illegality presumption in IQVIA/Propel—these agencies have been breathing new life into long-dormant doctrines.
And that’s just the formal stuff. Both agencies have been quietly building out their internal capacity, hiring experts from outside the typical silo of I/O economics. They’re undertaking a long-overdue update of rules on mandatory disclosures during the merger-review process, in part to bolster both agencies’ ability to detect harm to workers. This broadened analytical firepower will pay off for decades to come.
Respect the Democratic Role of Congress
One of the sneakier projects undertaken by the Chicago School was trying to collapse several different statutes into a single, defendant-friendly standard. For example, both Section 1 of the Sherman Act and Section 3 of the Clayton Act can prohibit coercive exclusive-dealing requirements by powerful firms. Chicagoans tried, with some success, to blur both laws into the Sherman Act’s “rule of reason” standard—under which defendants almost always win. That move was particularly brazen given the history of the Clayton Act, which Congress specifically passed to override the rule of reason. Federal agencies eventually stopped bringing Clayton Act Section 3 cases. Agency higher-ups likewise quietly stopped enforcing other democratically enacted antimonopoly laws like Section 8 of the Clayton Act and the Robinson–Patman Act.
New-wave enforcers have taken the opposite tack. Congress didn’t task the agencies with selectively enforcing whatever happens to be en vogue among orthodox economists; it tasked the agencies with enforcing all of the antimonopoly statutes. The agencies are now doing just that—from a string of Clayton Act Section 8 actions against interlocking directorates, to FTC’s briefing on Clayton Act Section 3 in its Syngenta/Corteva case, to FTC Act Section 5 actions challenging non-compete restrictions imposed on low-wage workers. And while we’ve yet to see a Robinson–Patman case, public reporting suggests one or more may be in the pipeline.
Democratize the Field
Both Jonathan Kanter and Lina Khan have spoken passionately and eloquently of the need to make antitrust “accessible to the public,” to “democratize” the field. Progress on this one is a little harder to pin down, but a few quantitative metrics can be of some help. When FTC and DOJ publish merger guidelines, they generally solicit public comments along the way. Their last big set of guidelines, issued back in 2010, attracted only a handful of comments. The 2023 Merger Guidelines, however, attracted thousands upon thousands of public comments—and the interventions weren’t just from insiders. That sort of thing doesn’t happen accidentally. It was the direct result of sustained efforts to engage with real stakeholders who often bear the brunt of harmful mega-mergers.
At the same time, Kanter, Khan, and others like Doha Mekki and Tim Wu have all contributed to supercharging student interest in the field. Enrollment in antitrust classes is up, student-authored articles on antimonopoly topics have skyrocketed, and anyone who teaches in the field can attest to a general uptick of questions about and interest in all things antitrust. This is part of a much broader phenomenon. But datapoints like Kanter visiting more than a dozen law schools underscore that these enforcers are being intentional about making sure new voices and new ideas have a place in this long-cloistered—but newly democratizing—field.
Overall Grade: Incomplete, but Highly Promising
At a recent event, professor and former FTC Chair Bill Kovacic gave the new-wave agency heads an “Incomplete” grade. That seems about right. It’s still early days. The Chicago School and Reaganite revolution was decades in the making, and bipartisan neoliberal consensus kept the ensuing orthodoxy in power for decades more. Contrast that with the present movement: Jonathan Kanter wasn’t confirmed until November 2021, and Alvaro Bedoya was held up until May 2022, meaning the new-wave enforcers have not even been at full strength for two full years yet. That said, early indications are highly promising.
Past agency initiatives usually took a long time and required racking up multiple losses before meeting with any success. For example, longtime FTCers are justifiably proud of the effort that culminated in a partial victory against “pay-for-delay” deals that keep low-price generic drugs off the market. After several years and several courtroom defeats, the FTC got all the way to the Supreme Court, asking only for the middle-ground “quick look” standard. The Court instead went with the defendant-friendly “rule of reason,” but at least conceded that these deals can sometimes be harmful. Still a worthwhile cause, to be sure, but that’s what it can take to achieve—even partially—an agency objective with this federal judiciary.
Compare that to new-wave enforcers’ push to revive enforcement against harmful “vertical” mergers, which combine suppliers with distributors or retailers. The agencies certainly haven’t won every challenge to a vertical tie-up. Shockingly one-sided, defendant-friendly decisions have come from judges appointed by Presidents Biden and Trump alike, a reminder that neoliberal ideology isn’t confined to one major political party or the other. Yet in just a few short years, an agency challenge to a vertical acquisition has already met with success. The Illumina/Grail lawsuit, voted out under Commissioner (then acting Chair) Rebecca Slaughter, was the FTC’s first litigated vertical-merger challenge in more than four decades. The Fifth Circuit opinion affirmed that the original acquisition was harmful and also put a stamp of approval on the flexible alternative mode of analysis used by the FTC. And again, that’s just one priority area where we’ve seen big steps taken in a very short amount of time.
The new antimonopoly leaders are moving fast. Alongside their career colleagues, they’re trying to shoulder an almost impossibly heavy burden. They’re underfunded and short-staffed, trying to carry out a massive mandate by going up against some of the wealthiest and most powerful corporations the world has ever seen. They’re also pushing back against a highly funded, well-organized reactionary opposition that spent decades embedding itself into every corner of academia, the think-tank industrial complex, and the halls of power in Washington.
But even so, against all odds, they’re making real progress.
John Newman recently served as Deputy Director at the Federal Trade Commission’s Bureau of Competition.
