Competition for Thee, but Not for Antitrust!

Senator Mike Lee (R-UT) and other Republican senators have proposed consolidating federal antitrust enforcement under the Department of Justice. While the stated justification for the proposal is enforcement efficiency, the more likely goal is to foreclose competition to the consumer welfare standard in federal antitrust policymaking. The recent appointment of Lina Khan to the FTC Chair position and President Biden’s July 9th Executive Order on Competition indicate that Neo-Brandeisian (“NB”) antitrust ideas are emerging as a competitive threat to the consumer welfare perspective, and Senator Lee’s proposals appear targeted at ending the threat before it gains a foothold in the antitrust marketplace of ideas. Because the current competition between consumer welfare and NB antitrust is beneficial to antitrust policy and American markets, Congress should reject these proposals.

By Max M. Miller¹

Antitrust policy is entering a renaissance of new (and old) ideas that encourage more aggressive enforcement and shifts in legal standards that would remove obstacles for successful enforcement actions. The field is benefitting from robust debates and diverse perspectives, which are gaining audiences with practitioners, government enforcers, Congress, the courts, and most recently, the President of the United States. But not everyone is supportive of the debate and the prospect of reform. Recently, Senator Mike Lee (R-UT), reintroduced his “One Agency Act” in the Sen