Make Antitrust Boring Again

Originally published at National Review. 

The Federal Trade Commission’s recent appeal in its antitrust case against Meta and the government’s new appeal in the Google search case are not just legal headlines. They are signals to capital markets about how political the federal government wants antitrust policy to be.

If we keep pushing antitrust toward populist storytelling instead of consumer harm, we will get less investment, slower innovation, and weaker competition. Antitrust works best when it is boring. Not toothless, but disciplined.

The job of antitrust officials is simple: Police conduct that harms consumers. This narrow focus is defined as the consumer welfare standard, popularized in America by the conservative legal scholar Robert Bork. It asks whether a merger or business practice is likely to raise prices, reduce output, lower quality, or slow innovation. If it is, enforce the law. If not, the government should step back and allow the deal to move forward.

In the past few years, however, antitrust laws have been turned into a political Swiss Army knife. Under the Biden administration, Lina Khan’s FTC pushed a structural, populist approach that often treated “big” companies as inherently suspicious, even when consumer harm was difficult to prove. Now, some voices on the right — in and out of the Trump administration — are tempted to copy the same playbook for different reasons, using antitrust laws to punish perceived “bias” or to settle cultural grievances.

The Biden and Trump administrations may have different slogans, but they are making the same economic error. Look at the case record.

The FTC spent years trying to unwind Facebook-owner Meta’s acquisitions of social media services Instagram and WhatsApp. A federal judge rejected the agency’s claims, and now the FTC is continuing the fight with an appeal. This is what expansive antitrust enforcement looks like in practice: retroactive theory, long, dragged-out litigation, and a moving target in a market that changes faster than court calendars.

The FTC also tried to block Microsoft’s acquisition of video game developer Activision Blizzard. The agency’s case page shows just how far it went to block the deal. After losing in court, the FTC ultimately dropped its challenge. That episode did not prove that every corporate merger is fine. It proved something more basic — that speculative theories of future harm are not a substitute for evidence.

Then, there is the case of Amazon and iRobot. After regulators leaned hard to stop Amazon from buying the maker of Roomba vacuum cleaners, the deal collapsed, and the FTC issued a celebratory termination statement. Today, iRobot is bankrupt and owned by a Chinese manufacturer.

Whatever one thinks of these individual outcomes, the overarching lesson is that aggressive antitrust policy imposes real costs long before any consumer harm is shown. It changes company behavior, deters mutually beneficial deals, and raises the cost of capital.

All of this is happening while the U.S. is in the midst of a massive private build-out of AI and data infrastructure. Capital formation depends on expected after-regulation returns. But when Washington signals that success will be met with breakups, retroactive challenges, or vague “fairness” theories, investors price in regulatory risk. The predictable result is less investment and fewer upstart challengers, not more.

If policymakers want more competition, they should focus on what blocks new entrants. In many markets, the greatest barriers to entry are government bottlenecks: permitting delays, policy-induced energy constraints, and regulatory thickets that prevent new infrastructure from being built. Streamlining U.S. infrastructure construction would be more pro-competition than the loudest lawsuit.

I lay out this case in a report co-published with NetChoice, titled “Innovation over Intervention: Restoring First Principles to American Antitrust.” We conclude that the United States should reject the Biden-era populist approach to antitrust and resist any Trump-era effort to repeat the same mistakes under a different banner. Instead, antitrust cops should let profit and loss, free entry and exit, and private innovation do what they have always done best.