The Future of Antitrust Populism

During the Biden Administration a form of populism staked a claim in American antitrust policy. While it never had much impact on Congress or the federal judiciary, it had a powerful presence in the antitrust enforcement agencies. This populist antimonopoly movement provided few new ideas, however. Rather, it recycled policies from a half-century or more ago. These include moving merger policy back to the 1960s, resurrecting the often-rejected idea that antitrust should be concerned about “bigness” rather than high prices, reviving the Robinson-Patman Act of the 1930s–1970s, reinstating aggressive per se rules against vertical restraints that were applied in the 1960s and 1970s, calling for breakups in concentrated industries that harken back to the “Concentrated Industries” proposals of the late 1960s, and even returning antitrust policy to some imagined earlier state that was pursued without economics. Antitrust policy needs a new agenda. That does not mean rejecting every form of populism. On the contrary, it may mean little more than simply listening to what people want. Overwhelmingly their concerns relate to higher prices and the costs of living, housing, medical care, and life’s other necessities. These are the same concerns that have guided antitrust policy since the 1890s. By and large, the public is not motivated by hostility toward big business or big tech, except to the extent they associate them with higher prices. To the extent that is true, populism is in alignment with what good antitrust policy has been doing all along.