President Biden made antitrust law — and reforming it — an important part of his administration’s agenda. Nearly nine months after he issued a sweeping Executive Order on Promoting Competition in the American Economy, an assessment of the Department of Justice and Federal Trade Commission’s activity reveals some progress. Both federal antitrust agencies have stepped up merger enforcement, including against vertical consolidations, but have done far less on unfair conduct. They have a great deal to do if they want to break with 40 years of policy and practice that have elevated short-term consumer interests above all else and made the open-ended rule of reason the default analytical framework of antitrust. The DOJ’s enforcement and advocacy suggest a broader rethinking of antitrust may be afoot in the Biden administration. The DOJ has filed several criminal cases against employers for colluding against workers, challenged a merger that would likely harm workers, and deemed certain methods of competition unfair. If the agencies build on the DOJ’s nascent steps, they could revive and expand a historical antitrust tradition that protects consumers, workers, suppliers, and competitors from powerful corporations and applies bright-line rules to mergers and unfair competitive practices.
By Sandeep Vaheesan
The Biden administration has made antitrust law a key part of its agenda. Last July, the president issued a sweeping execu...