Restoring Antitrust Balance: Trump’s Path to Reforming Biden’s Policies

The Senate Judiciary Committee is set to conduct confirmation hearings for Gail Slater as the assistant attorney general for the antitrust division. Slater brings a wealth of experience, having worked in the Trump administration, the Federal Trade Commission, and the private sector. Her extensive understanding of antitrust issues has garnered support from numerous senators and Attorney General Pam Bondi, positioning her for an easy confirmation.

Upon her confirmation, Slater along with FTC Chairman Andrew Ferguson must steer their agencies back to adhering to the Consumer Welfare Standard. This standard, established by the Supreme Court in the 1979 decision of Reiter v. Sonotone, provides a strong legal foundation for antitrust enforcement.

The Consumer Welfare Standard originates from Professor Robert Bork’s influential 1978 book titled The Antitrust Paradox. Bork argued that effective competition leads to consumer benefits through lowered prices, increased output, enhanced customer service, expanded research and development, and heightened innovation.

The Consumer Welfare Standard has served as a consistent, objective legal benchmark, measurable through economic analysis and empirical evidence. As a result, this framework provides clarity and predictability for businesses, crucial factors that foster innovation and economic growth.

However, the Biden administration has taken a different approach, seemingly undermining the established laws. Key figures in this shift include Federal Trade Commission Chair Lina Khan, Assistant Attorney General Jonathan Kanter, Special Assistant to the President Tim Wu, and Consumer Financial Protection Bureau head Rohit Chopra.

These individuals advocate for a controversial perspective known as the “Brandeisian Antitrust” approach. This ambiguous standard lacks clear guidelines and varies based on the preferences of individual enforcers or judges. Notably, Congress has not defined a maximum permissible market share, leaving companies vulnerable to unpredictable scrutiny.

Under Brandeisian Antitrust, even firms with a modest market share of 4.5 percent could face antitrust enforcement. Proponents of this approach argue that consumers benefit from a market with fewer large corporations and more small players, despite the potential for increased prices.

As the Trump administration prepares to take action, it is essential that it reinforces the Consumer Welfare Standard. By doing so, it can ensure a balanced approach that protects American innovation and competitiveness against fierce foreign rivals, particularly in sectors like artificial intelligence, where companies like the Chinese DeepSeek pose significant threats. Furthermore, the European Union has imposed vast fines on American tech giants such as Apple and Alphabet, effectively redirecting funds from U.S. shareholders to European bureaucrats.

Typically, the Department of Justice pauses ongoing cases or requests delays during the transition period between administrations. However, the Biden administration diverged from this norm dramatically.

A striking example is the aggressive filing of an opposition motion against Visa, Inc. just one day before Trump’s inauguration. Additionally, on January 30, 2025, acting assistant attorney general Omeed Assef initiated legal proceedings to obstruct Hewlett Packard’s proposed acquisition of Juniper Networks in the wireless network sector. This rapid pace of litigation raises concerns about the administration’s motivations.

In its Visa case, the Biden DOJ blamed high bank card fees on Visa’s volume discounts and incentive payments, declaring them anti-competitive practices that hindered new competitors from entering the debit transaction market.

This situation is particularly perplexing, as Dodd-Frank’s Durbin Amendment already mandates that debit cards support at least two unaffiliated payment card networks, ensuring competition in transaction processing. Moreover, it places a cap on interchange fees for Visa and MasterCard, while allowing American Express and Discover to charge higher prices to merchants.

Similarly, the Biden DOJ accused RealPage, Inc. of price fixing in its software that helps landlords automate rental comparisons. This assertion raises eyebrows, especially since it coincides with the administration’s challenges regarding soaring rental prices.

In the Ticketmaster-Live Nation case, the DOJ took political advantage of Ticketmaster’s well-publicized tech failures, claiming it unfairly monopolized the live event market through exclusionary and retaliatory tactics.

Going forward, Slater and the Trump DOJ should scrutinize these and other antitrust actions taken by their predecessors. It is imperative to remember that antitrust enforcement should exist to promote competition rather than serve specific corporate interests. It should not be utilized as a means to achieve social goals, including curbing social media censorship or addressing inequality.

The Biden administration’s retreat from the successful Consumer Welfare Standard of the last 46 years has resulted in economic uncertainty and stifled innovation. This regression to the Brandeisian perspective could hinder growth and grant federal regulators excessive discretion in enforcement.

Speaking on the matter, the Trump administration indicated its intention to eliminate any statutory or cause removal protections for key positions in the Federal Trade Commission, the Consumer Product Safety Commission, and the National Labor Relations Board. This shift aims to grant the president greater authority to appoint replacements as needed.

Thus, the Trump administration has an opportunity to reinstate the Consumer Welfare Standard and rectify the missteps of the Biden administration. By doing so, it can better serve consumers and stimulate economic progress.