Monopoly Round-Up: Is the Era of Populist Antitrust Over?

Last week was Thanksgiving, but there was a surprising amount of monopoly-related news nonetheless. Famed Avatar director James Cameron went after Netflix for its attempt to buy Warner Bros. Discovery, pro golfers are acknowledging the LIV Golf/PGA Tour merger is unlikely to happen, and NASCAR is in a life-or-death monopolization trial starting tomorrow, brought by Michael Jordan of all people.

I want to focus a bit today on antitrust law itself. After the loss in the Meta trial, and the Trump DOJ settling the RealPage rent-fixing suit, I started to see more chatter among fancy lawyers that the populist era of antitrust is over. And this got me thinking; it’s been a little over a year since Trump’s election, so it’s a useful moment to look at what Trump has done with the Biden antitrust legacy. Has Trump reversed it all? Or built on it? What is the legacy of antitrust populism so far?

It’s a debate that quietly stirs some real passion among those who control capital. Today, as Wall Street celebrates a merger boom, bankers want to believe that the good old days are back. Big tech supported think tanks are trying to argue that the populist approach to antitrust is over. But there’s another side of the debate. Oddly enough, the Wall Street Journal editorial page is stating that Trump is just as “bad” as Biden on antitrust, even as the New York Times editorial board had a piece criticizing the Trump administration’s flabby antitrust approach.

Why are participants all over the place on the status of antitrust law? Here’s what’s going on, as best as I can tell. From Reagan to Obama, competition policy used to be a genteel space, politely controlled by lawyers, economists and bankers in a “bipartisan consensus” whereby consolidation was seen as virtuous and size was nothing to be afraid of. As one memo from Clinton’s Council of Economic Advisors put it, “Large size is not the same as monopoly power. For example, an ice cream vendor at the beach on a hot day probably has more market power than many multi-billion-dollar companies in competitive industries.”

Under Obama, for instance, the Federal Trade Commission used authority to go after powerless actors, such as Uber drivers, church organists, bull semen traders, and ice skating teachers. Meanwhile, that same commission allowed Google to buy Waze, and Facebook to buy Instagram ...