Introduction
In early 2021, a new coterie of trustbusters came to Washington with the stated purpose of radically overhauling the antitrust status quo. The three central figures—Federal Trade Commission (“FTC”) Chair Lina Khan, Department of Justice (“DOJ”) Antitrust Division Assistant Attorney General (“AAG”) Jonathan Kanter, and Special Assistant to the President for Technology and Competition Policy in the White House Tim Wu—were self-identified neo-Brandeisians, committed to returning antitrust policy to a contemporary version of Justice Louis Brandeis’s ideas. At the urging of Senator Elizabeth Warren, President Biden turned over his Administration’s antitrust policy to the neo-Brandeisians, who vowed to break antitrust’s reigning consumer welfare standard, retool competition policy to protect other interests such as labor and small business, and significantly expand scrutiny of corporate power, particularly as to Big Tech.
Four years later, as the neo-Brandeisians retreat from Washington in the wake of a new administration, it is fitting to take stock of what actually happened in those four years. Given the soaring political salience of antitrust during the Biden Administration, there is already a rush to define the narrative regarding the neo-Brandeisians’ time in the nation’s capital. Inquiring people want to know, and manipulative people want to manipulate.
This Essay attempts to answer the “what really happened?” question with two points. First, from an immediate perspective, the revolution did not happen. On a statistical level, the neo-Brandeisians did not increase antitrust enforcement, and in many ways were less rigorous in bringing antitrust cases than previous administrations. (The reader should wait for more full explorations below before overreacting to this claim.) On a qualitative level, the neo-Brandeisians did attempt dramatic reform in many ways—jettisoning existing policies, implementing new, interventionist ones, advancing novel or “edgy” theories in merger and non-merger cases, and, especially, testing the FTC’s rulemaking authority through an aggressive rule prohibiting employment non-compete agreements. But the neo-Brandeisians leave Washington with relatively little to show for these efforts. With some important exceptions, they were not successful in advancing their “edgy” theories, they did not bring and litigate to conclusion a single civil non-merger case, and the non-compete rule has been nationally enjoined and faces grim future prospects.
Countervailing the first point, this Essay’s second point is that it is far too early to draw robust conclusions about the success or failure of the neo-Brandeisians’ attempted revolution. For one, some of the data regarding the last year or months of the Biden Administration are not yet available, and several of the significant lawsuits brought by the Administration are still pending. That may take many more years. But there is an even more significant point about the need for patience: the neo-Brandeisians came to political power very early in the trajectory of their movement (perhaps too early for their own good). By comparison, the last revolutionary antitrust movement—the Chicago School—spent decades building its agenda through scholarship and socialization of its ideas to law students, lawyers, and judges before it achieved success in the courts and antitrust agencies. It is far too early to say what the ultimate outcome and influence of the neo-Brandeisian challenge, including the seeds sown in the last four years, will be. So, while answers to short-term questions about what the neo-Brandeisians did in Washington are largely available, any assessment must remain provisional for several decades to come.