The New Conservative Antitrust Is Not Here To Last
Elsewhere in this series, Thom Lambert has looked at recent statements by Assistant Attorney General Gail Slater of the United States Department of Justice, Federal Trade Commission (FTC) Chairman Andrew Ferguson, and Republican FTC Commissioner Mark Meador to identify and critique their understanding of “conservative antitrust.” I initially planned to take a similar approach, but Lambert has covered this ground better than I would have. I will instead focus more on where conservative antitrust is going—or not going, as the case may be. I will focus first on defining the dimensions of this new conservative antitrust—or, as Thom rightly calls it, “New Right” antitrust. Following Meador’s recent appearances, I think it is best understood as the application of antitrust to achieve populist ends. Unlike the Neo-Brandeisian approach to antitrust of the previous administration, which coupled concerns about market concentration with concerns about democratic outcome such that antitrust became a lens through which all political disagreement could be seen, this does give the new antitrust flavor an identifiable limiting principle that was sorely lacking during the Biden years. But ultimately, I argue that this limiting principle is insufficient to chart a viable path forward.