Meta’s settlement with state attorneys general is being celebrated as a victory over Big Tech. It may turn out to be something closer to the opposite: a case study in how regulation ends up entrenching the companies it’s meant to restrain.

Meta will pay billions to settle claims involving Facebook and Instagram. More consequentially, it agreed to an elaborate regulatory regime for users under 18—daily use limits, nighttime restrictions, school-hour notification limits, enhanced age verification, restrictions on certain features, stronger parental controls, and scrutiny from an independent auditor and the attorneys general themselves.

Some of this may be sound policy. But stack the pieces together and paradoxes emerge, ones that ought to bother conservatives—and anyone wary of government’s expanding footprint in private markets.

Start with privacy. Part of the original complaint was that Meta collected too much information about children. The fix requires Meta to get considerably better at identifying them. A 15-year-old claiming to be 19 can’t be taken at his word, so Meta needs sharper age-assurance tools—and the harder government pushes to stop teenagers from slipping past the restrictions, the more sophisticated that identification machinery has to get. We are protecting children’s privacy by requiring a company to know more about them.

Parental authority runs into a similar knot. The settlement is billed as empowering parents, and in places it does. But plenty of these decisions used to belong to parents alone, and now they don’t. Nobody’s mother or father decided that two hours was the right amount of Instagram for a 15-year-old—the attorneys general did. Nobody’s parents set midnight as the cutoff either.

Giving Meta a mandate to let parents impose limits is one thing. Having government impose the limits itself, with parents free to loosen them if they notice and bother to act, is another. The first approach hands parents real authority. The second substitutes a state official’s judgment for theirs and calls it choice.

Parents aren’t helpless here, whatever the settlement implies. They buy the phones. They pay the wireless bills. They control the Wi-Fi. Nothing stops a parent from restricting apps, capping screen time or banning phones from bedrooms. Teenagers have been dodging house rules since long before Mark Zuckerberg was born, and the fact that enforcement is hard doesn’t mean the job transfers to a state attorney general.

Regulation by litigation raises its own questions. This settlement dictates when minors can use a communications platform, how long, when notifications may reach them, and which features they encounter—with an independent auditor checking Meta’s compliance every year and the states retaining continuing oversight. Whatever you call that, it functions like regulation.

Except Congress never passed it. No legislature debated whether two hours was the correct limit or midnight the correct bedtime. No agency worked through notice and comment to arrive at these rules. Prosecutors alleged potentially ruinous liability, and a set of product rules got negotiated into existence as the price of making the case go away.

The First Amendment angle deserves a mention too. Social-media feeds are, among other things, distribution systems for speech. Rules governing how lawful information gets recommended or delivered can raise real constitutional questions—even granting that minors’ rights and parental authority complicate the picture. A restriction that would draw constitutional scrutiny if government imposed it directly shouldn’t necessarily dodge that scrutiny because it arrived wrapped inside a consent judgment.

The deepest paradox is economic. For years the government’s message has been that Meta is too powerful—its acquisitions attacked, its dominance targeted for reduction. Now government is loading it up with expensive new obligations: age assurance, content controls, compliance infrastructure, parental-control architecture, an outside auditor checking the work. Meta can absorb costs like that without much trouble. Whether the next Instagram could is a different question entirely. Regulatory compliance behaves like a fixed cost, and a company of Meta’s size bears it far more easily than two programmers building a social app in a garage without Meta’s legal team, engineering bench or compliance department. What antitrust law is supposed to prevent—a barrier that keeps new entrants out—is exactly what this settlement risks building.

One feature of the deal is stranger still: Part of Meta’s eventual payment is tied to whether YouTube, TikTok and SnapChat adopt comparable protections and make comparable payments of their own. Meta, in other words, is actively pushing its rivals to sign onto the same framework. The logic isn’t hard to follow: Restrictions that apply only to Meta put it at a competitive disadvantage, and restrictions that apply to everyone erase that disadvantage. Government has managed something unusual: turning the target of its enforcement action into a lobbyist for extending that enforcement to its competitors.

If Meta broke children’s privacy laws, enforce them. If it deceives consumers, prosecute that. Give parents tools that actually work and hold Meta accountable for honoring the choices parents make. What’s harder to justify is turning prosecutors into product designers, and a settlement negotiated behind closed doors into national technology policy.

The contradiction sitting at the center of all this isn’t subtle. Government insists Meta has grown too powerful, then hands it responsibilities that used to belong to parents while piling on regulatory costs that smaller rivals may not survive. We are, somehow, asking the company to become both less powerful and more responsible for managing American childhood at the same time.

That isn’t a fix for Big Tech’s power. It might be the mechanism that makes it bigger.

This article also appeared in the Wall Street Journal.

Meta is an inviting defendant. It’s enormous, plenty of people dislike it, and—not incidentally—it’s fabulously wealthy. Its executives have written embarrassing things in internal messages, its products can consume too much of a teenager’s attention, and most parents have at some point wondered whether the glowing rectangle in their kid’s hand is doing more harm than good.

None of that makes Meta legally responsible for the youth mental-health crisis, and it certainly doesn’t justify a financial penalty that Meta says could reach $1.4 trillion. When a civil lawsuit starts to resemble the federal budget, common sense ought to get a hearing too.

The trial beginning in Oakland is formally a consumer-protection and children’s-privacy case brought by California, Colorado, Kentucky and New Jersey, with claims involving 29 states in all. Politically, though, it’s being sold as something much bigger: a verdict on Facebook, Instagram, and the entire social-media age. The states’ lawyers want to cast Meta as the Big Tobacco of the smartphone era, knowingly addicting children while hiding the consequences from the public.

It’s a compelling story. It also runs well ahead of both the science and the legal claims that actually survived to trial.

Some young people undeniably have bad experiences on social media. Kids get bullied, exposed to disturbing material, kept up too late, drawn into ugly competitions over looks and popularity. A platform can make things worse for a child who’s already anxious, depressed, or isolated. Parents have every reason to worry about this, and Meta can be scrutinized over what it knew and what it did about it.

Meta’s internal documents don’t make that defense any easier. Researchers and employees discussed “problematic use,” compared Instagram to a drug for some users, and worried about teenagers staying up late scrolling. If Meta told the public one thing while its own researchers privately believed another, a court can and should examine those statements one by one. If it knowingly collected data from children under 13 without the parental consent required by federal law, it should answer for that.

But “some children were harmed” is a different claim than “Meta caused a generation’s mental-health crisis.” The first is plausible on its face. The second is the sort of claim lawyers reach for when they want to turn a messy social problem into an enormous damages number.

The National Academies’ review of the evidence didn’t back the sweeping conclusion that social media causes population-wide changes in adolescent mental health. Most studies find effects that are small, inconsistent, or highly dependent on the individual. And causation likely runs both ways—troubled teenagers may turn to social media in unhealthy ways, while others find community, information, or real help there.

That distinction matters. Identifying a risk factor is not the same thing as making a single company financially responsible for the mental health of an entire generation.

Plenty of things shape how kids feel: family life, school quality, preexisting conditions, neighborhood safety, the pandemic, money troubles, sleep, drugs, academic pressure—the list goes on. Instagram didn’t invent cruelty, vanity, exclusion, or teenage obsession. It gave those old problems a faster way to spread, which is worth taking seriously, but that’s not the same as treating every troubled teenager as a compensable injury Meta is on the hook for.

There’s a real gap between the states’ rhetoric and their actual legal case. Most of the public criticism is about infinite scroll, recommendation algorithms, notifications, likes, and similar engagement features. But Section 230 rulings have already cut deeply into design-based claims like these. What’s left concerns narrower matters: appearance-altering filters, time-management tools that allegedly don’t work well, and the ability to run multiple Instagram accounts.

Those claims can still go to trial. But proving them isn’t the same as proving Meta built an addiction machine that caused a mental-health crisis—and it’s a stretch from there to justify handing four state attorneys general and a single federal judge ongoing authority over Instagram’s algorithms and interface.

The filter allegation is probably the strongest of the surviving design claims. It’s not hard to see why software encouraging teenagers to reshape their nose, alter their body, or smooth their skin might feed appearance anxiety, and Meta will have to explain its choices there. The time-limit claim is weaker: a tool can be imperfect, or get circumvented by inventive teenagers, without being fraudulent. And the multiple-accounts claim is weaker still—a general feature doesn’t become illegal just because some minors use it to dodge their parents.

Meta also has a real record of trying to address these concerns. It’s rolled out private-by-default teen accounts, overnight notification limits, screen-time reminders, and parental controls, among other things. Critics say some of this came too late, or was more about public relations than protection. Maybe. But a company that’s made imperfect efforts is not the same as a company that made none.

Then there’s the money. Meta says the states’ damages theory could produce a $1.4 trillion penalty. The states dispute that framing and have floated a number closer to $200 billion instead—which is a bit like arguing over whether a ransom note demands the moon or merely several large continents.

Consumer-protection penalties exist to punish proven violations and discourage repeating them. They shouldn’t turn into an exercise in multiplying every user, every statement, every day and every technical interaction until the total has no relationship to any actual injury. A number that reaches hundreds of billions of dollars isn’t measuring harm anymore—it’s leverage.

And that leverage extends well beyond this courtroom. Thousands of private lawsuits have been filed against social-media companies, including suits from individuals and school districts, and plaintiffs’ firms are actively recruiting clients for “social media addiction” claims. A state victory here—especially one with sweeping factual findings attached—would raise the settlement value of all of it.

I haven’t seen any evidence that the four states in this case have promised an outside law firm a cut of the recovery. But the case sits inside a much larger industry where public enforcement and private mass-tort litigation feed each other. Look at New Mexico’s separate case against Meta: Reuters reported that the firm Motley Rice could collect as much as $67.1 million under a contingency arrangement, tied to a $942 million award that’s still on appeal. Financial incentives don’t disprove the underlying allegations, and lawyers are entitled to get paid. But they help explain the appetite for tobacco comparisons, sky-high damages demands, and legal theories broad enough to turn nearly any adolescent difficulty into a claim against a solvent company. State attorneys general have their own incentives too, including the ability to tell voters they brought home a multibillion-dollar settlement.

A case against Meta generates headlines, national attention, and a chance to look like the protector of children. None of that means the underlying claims are false. It just means prosecutorial outrage isn’t proof.

There’s also an institutional question here that should matter even to people who have no love for Meta. Congress passed a specific privacy law covering children under 13. Enforce it. If lawmakers think platforms need stricter age verification, real time controls, limits on appearance filters, or special duties toward teenagers, they can write those rules and debate the costs before putting them into effect.

That’s how this is supposed to work in a democracy—not asking a court to invent a national regulatory code out of broad consumer-protection statutes and then apply it retroactively with penalties large enough to bankrupt a company.

The stakes go beyond compensating individual children. The remedies being sought could reach how Facebook and Instagram select, rank, and present content to hundreds of millions of adult users. The Supreme Court has already recognized that social-media feeds involve editorial judgments protected by the First Amendment. Whatever you think of Meta’s editorial judgment, it shouldn’t become something state attorneys general get to run.

Meta’s strongest defense is that the states are trying to bridge some large gaps: between risk and causation, between concern and deception, between imperfect safeguards and unlawful conduct. They’re taking a narrow set of disputed practices and trying to use them to hold one company responsible for one of the most complicated social shifts of our time, then asking for remedies that go far beyond what those narrow claims could support.

Parents, schools, legislators, and tech companies all have a role to play here, and Meta should carry its share of the responsibility. But it shouldn’t be turned into a national scapegoat, a piggy bank for the litigation industry, or a public utility run out of a federal courtroom.

Hollywood has finally produced a drama in which the script has been lost and every actor has forgotten the storyline.

Paramount Skydance wants to acquire Warner Bros. Discovery. California Attorney General Rob Bonta, joined by eleven other state attorneys general, wants to stop it on antitrust grounds. Paramount CEO David Ellison has responded by threatening to move much of the company out of California to Tennessee, Georgia, or Texas unless Bonta negotiates. Bonta calls that “blackmail.” Meanwhile, Paramount is considering major strategic moves, from selling CNN to moving its headquarters, preserving studio lots, guaranteeing theatrical windows and making various promises about jobs and film production.

Almost none of this involves antitrust law or enforcement.

The Clayton Act, one of the pillars of antitrust law proteting competition, does not guarantee California a motion-picture industry. It does not protect Hollywood jobs, preserve famous studio names, regulate CNN’s editorial direction or require five historic movie companies to remain independent forever.

Antitrust law asks whether a transaction may substantially lessen competition. Properly understood, that means determining whether the merger is likely to give the combined company sufficient market power to raise prices, reduce output, diminish quality or obstruct competitive entry.

And yet Bonta’s case is not frivolous. Paramount and Warner Bros. are direct, horizontal competitors. The states allege that the combined company would distribute approximately 27% of wide-release theatrical films, more than 30% of anticipated blockbusters and roughly 27% of basic-cable programming. They contend that fewer major film distributors would enable the combined company to demand a larger share of box-office revenue from theaters. They also argue that a company controlling CNN, MTV, Nickelodeon, Comedy Central, HGTV, TNT, TBS, Cartoon Network and dozens of other channels could extract higher carriage fees from cable and satellite distributors.

Those are complaints based on recognizable consumer-welfare theories. If the states can establish that Paramount and Warner meaningfully constrain one another today, and that their combination would lead to higher prices or less programming tomorrow, they will have identified a legitimate competitive problem. Though often characterized as laissez-faire, traditional antitrust enforcement defined does not stamp approvals on mergers merely because business wants them. Concentration can create market power, and undue market power can harm consumers.

But identifying a theory is not the same as proving it.

The states’ case depends heavily on markets drawn around the declining institutions of twentieth-century entertainment. It treats “major studios” as though the category were ordained in Hollywood’s golden age and preserved in amber. It minimizes Amazon-MGM, Apple, Netflix, Lionsgate, A24, Neon and other companies capable of financing, producing or distributing major films. It also treats basic cable as a self-contained market even as millions of consumers abandon cable and streaming companies compete aggressively for movies, news, sports and entertainment.

Consider: the Justice Department spent eight months investigating the transaction. Its career staff reviewed more than two million documents from more than 80 custodians, examined data, took testimony and heard from third parties throughout the industry. It concluded that the merger was unlikely to harm competition in streaming, linear television or theatrical film distribution. Indeed, the department found that combining Paramount+ with HBO Max and Discovery’s content could produce a more formidable competitor to Netflix, Disney and Amazon—a likely benefit to consumers.

The Justice Department’s conclusion, of course, is not binding on the states or courts. But it deserves more than Bonta’s description of federal approval as a political “rubber stamp.” A state attorney general who wants a federal court to disregard an extensive federal investigation should present better evidence, not louder rhetoric.

Bonta instead keeps drifting into subjects that antitrust law is poorly equipped to address. His complaint and public statements emphasize employment, California’s economy, opportunities for writers and actors, the number of stories that will be told and the breadth of viewpoints reaching the public. These may be legitimate political concerns. They are not substitutes for economic proof that the transaction will harm competition.

Bonta’s description of Paramount’s relocation threat as “blackmail” is equally theatrical. Paramount is entitled to decide to move to Nashville or Nairobi. California imposes taxes, labor costs and regulatory burdens that companies may rationally seek to avoid. Other states, with lower costs, are willing to provide sweeteners like tax breaks. The merger delay itself could cost Paramount approximately $7 million a day in payments to Warner shareholders beginning this fall. Ellison has a fiduciary duty to consider ways of reducing those costs.

Even in this context, however, Ellison’s ultimatum is still problematic.

“Settle by October 1st or we leave” sounds less like a considered business judgment than an effort to put Bonta on the spot. It does nothing to answer the states’ allegations about theatrical distribution or cable bargaining power. Worse, it undercuts Paramount’s earlier assurances that the merger would strengthen Hollywood, preserve employment and expand film production.

If relocation makes economic sense, Paramount should relocate. If it does not, the company should not pretend that moving thousands of employees is a bargaining chip in an antitrust negotiation. The court should give the threat precisely the weight it deserves—none, either way.

There is a revealing test for Bonta as well. If Paramount’s promise to retain jobs and facilities in California would persuade him to abandon the lawsuit, then the case is not really about competition. It is an exercise in state protectionism. If the merger is genuinely unlawful, no employment promise can cure it. California residents do not become immune from higher prices because the company charging them maintains an office in Los Angeles.

Warner Bros.’ corporate history supplies another useful caution. The studio has passed from the Warner family to Seven Arts, Kinney National, Warner Communications, Time Warner, AOL Time Warner, AT&T and Warner Bros. Discovery. Again and again, executives have promised that the latest corporate combination would generate revolutionary synergies. AOL Time Warner became one of the most notorious mergers in American history. AT&T’s adventure in entertainment ended with WarnerMedia being spun off and combined with Discovery. Warner survived these experiments; many of the corporate theories did not.

That history may be a reason for Paramount shareholders and lenders to worry. It is not a reason for an antitrust court to block the transaction. Antitrust law does not prevent executives from overpaying, assuming too much debt or making foolish predictions about corporate synergy. Capital markets discipline bad business judgment. The government’s role begins only when a transaction threatens the competitive process.

Amid all this bluster, however, there may be room for a sensible settlement. If the states can prove that the combined cable portfolio would create excessive bargaining leverage, Paramount could divest a coherent package of channels.

Any remedy should be structural, enforceable and tied to a demonstrated competitive harm. A CNN divestiture might contribute to such a remedy, although CNN’s political slant and editorial policy should have nothing to do with the analysis. Promises to preserve jobs, maintain studio lots, release a specified number of films or protect CNN’s editorial “independence” are irrelevant to antitrust. If such metrics were to be accepted, they would turn antitrust enforcement into continuing industrial supervision.

The twisting of antitrust law could also normalize the use of the law by politicians to dictate where companies operate, how many people they employ, what products they produce and how news organizations conduct themselves. That is not competition policy. It is economic planning with a Hollywood backdrop.

The Paramount-Warner controversy has become a contest between two forms of political pressure. Bonta invokes antitrust law to defend California workers and Hollywood institutions. Ellison threatens to move those workers and institutions unless Bonta relents. Each side is trying to make California’s economic interests determine the disposition of a federal antitrust case.

Both should take a step back and engage the competitive issues of antitrust law.

It will ultimately be up to a court to determine whether the merger will raise prices, reduce output, diminish quality or prevent the entry of new competitors. If the states prove those harms, the transaction should be blocked or restructured. If they merely prove that the combined company will be large, politically controversial and possibly badly managed, the government must step aside.

Consumers are entitled to competitive markets. Paramount is not entitled to Warner Bros., and California is not entitled to Paramount. That is the beginning—and should be the end—of antitrust analysis.

Robert H. Bork Jr. is the president of the Antitrust Education Project.

Back in 2019, when he was a member of the Federal Communications Commission and viewed as a reliable, free-market kind of guy, Brendan Carr summed up decades of regulatory overreach in just eleven words: “The FCC has historically micromanaged the business operations of local broadcasters. And it must stop.”

A remarkably clear statement, coming from a Washington regulator. And, more importantly, a correct observation. Now, seven years later, and with Carr now the FCC’s chairman, he seems to have forgotten his own advice.

At the end of July, Carr announced the launch of investigations into recent affiliation agreements between television networks and local station owners. These freely arrived-upon agreements determine which local stations in what markets will carry which national networks’ news, sports, and primetime programming.

Carr has singled out leading affiliate groups like Gray Media and Hearst by name, warning that some of their stations’ recent changes in affiliation could cause problems for them when their FCC broadcast licenses come up for renewal or, perhaps, “much sooner.”

It’s not that these agreements violate a clear statutory prohibition or that the government suspects fraud or collusion. The chairman just doesn’t like where the market’s heading, worrying that some local stations’ affiliation choices may be giving national networks too much bargaining power.

Carr believes broadcasters may be making deals that are helpful to them in the short term but damaging to local television in the long run. And he may be right. But that’s not a matter for his concern. Television networks and station owners need to consider viewers, advertisers, and shareholders when negotiating agreements. Gray, Hearst, Sinclair, Nexstar, and other station owners, and the broadcast networks, employ people to evaluate the trade-offs in any agreements. And they risk their own money and reputations if they guess incorrectly.

Brendan Carr has no skin in the game. Yet he’s placing himself in the middle, making pronouncements about which agreements strengthen local television and which don’t while threatening government action against companies that reach conclusions different from his.

That’s the ugly façade of big government, and there’s nothing conservative or free-market about it. Carr is trying to have the government pick the winners and leave the losers with no recourse, pure and simple. And it’s not the first time he’s strayed from the principled positions he once advocated.

The FCC will soon vote whether to eliminate the national television ownership cap that prevents any single station group from reaching more than 39% of American households. Congress wrote that limit into federal law more than two decades ago.

That’s a problem. The FCC cannot, and Brendan Carr cannot, change public policy set by Congress on a major question just because he wants to. Many free-market economists believe the cap is outdated and that a new approach to the question of ownership limitations is needed, but the point remains: if a change must be made, it must be Congress that makes it.

Carr nevertheless has made plans to eliminate the bright-line 39% cap, replacing it with a “granular, case-by-case review.” What he is proposing would leave broadcasters without clear guidelines to follow and dependent on commissioners—or, worse, agency staff—determining whether each proposed transaction promoted their subjective conception of the “public interest.”

Clear rules restrain businesses and regulators. Everyone knows where the boundaries are, and regulators must apply them equally. Case-by-case discretion empowers the regulatory state, thereby strengthening it. That’s not the way to get freedom from regulation, as Carr and others call it. It leaves government officials free to approve transactions they like, reject those they dislike, demand concessions and reward favored companies.

That is what the regulatory state looks like in its purest form: less law, more power.

Advocates for deregulation used to recognize the danger in that proposition. We spent decades criticizing Democrats and Republicans who believed every business decision had to be supervised by an enlightened, disinterested Washington expert. We objected when bureaucrats stretched vague “public interest” authority to pursue outcomes Congress never authorized. We demanded predictable rules, equal treatment and limits on administrative discretion.

Those principles do not go out the window just because Brendan Carr used to be a reliable ally. Every power he claims today will eventually pass to a successor who believes more regulation is necessary to protect consumer welfare, or who just throws that long-held standard into the waste basket.

That person will be empowered to use the same affiliation investigations, license-renewal threats, and case-by-case merger reviews to punish some companies and reward others who have the “correct” record of political donations and policies on DEI. Carr and whatever allies he still has will then object, but it will be too late. After establishing that the FCC may manipulate marketplace outcomes whenever its chairman invokes the “public interest,” they will have no limiting principle left to invoke.

Carr had it right in 2019. Decisions about broadcasters’ programming and business operations generally belong in the marketplace, not in the pages of the Code of Federal Regulations—and certainly not in the personal judgment of one appointed official.

The FCC has historically micromanaged local broadcasters. It must stop. Chairman Carr should follow the advice Commissioner Carr once gave.

This article was published first at Issues and Insights. It is republished here with permission of editor and author.

Peter Roff is a veteran journalist who covered politics and public policy for U.S. News & World Report, United Press International, and other outlets. He regularly produces commentary on current political and public policy matters. You can reach him at RoffColumns AT GMAIL.com and follow him on social media @TheRoffDraft.

I committed two offenses in The Washington Post this week. First, I argued that high prices are not, by themselves, proof of an antitrust violation. Second, I did it under the name “Robert Bork.”

For a remarkable number of readers, the second offense disposed of the first. The comments included “Nepo baby,” “A dope begat a dope,” “The manure is always next to the tree,” and the wonderfully economical “NO READ.” Others explained that anything written by a Bork could be rejected without the tiresome formality of reading it. Several readers confused me with my father, who died in 2012, and expressed surprise that I was still alive. At least they were relieved to learn that one of us is.

Jeff Bezos was also tried and convicted. My essay, according to the comments, had been ordered by Amazon, the Federalist Society, the oligarchy, or perhaps all three on a conference call. The Post was accused of rummaging through the gutter, scraping the bottom of the barrel, and converting itself into a Bezos propaganda sheet. None of this was supported by evidence, but that was unintentionally appropriate. My essay was about the danger of reaching conclusions before finding evidence.

Then came the great verb controversy. Several readers insisted that the headline should have said the FTC ought to have “chucked,” not “shucked,” the Biden antitrust playbook. I did not write the headline, although I rather like the agricultural pun in an essay about eggs and beef. In any event, the headline police displayed more interest in one consonant than many of their neighbors displayed in Section 1 of the Sherman Act.

This is not a complaint that readers were rude. Anyone who writes an opinion piece should be able to survive the discovery that strangers on the internet do not admire him. Nor do I object to criticism of my father. He welcomed serious argument and supplied plenty of it himself. But “your father” is not an antitrust doctrine, “Bezos” is not an economic analysis, and “fascist” is not a substitute for identifying a relevant market, an agreement, exclusionary conduct, market power, or consumer harm.

Still, buried among the insults were several arguments worth answering. They concern actual collusion in the egg industry, the relationship between concentration and prices, the role of merger enforcement, the difference between free markets and unregulated markets, corporate profits, investigations, and crony capitalism. Those readers deserve a response because they did what critics are supposed to do: they engaged the argument rather than the author’s birth certificate.

What I actually argued

My Post essay made a limited point. The Trump administration, after promising a departure from Biden-era progressive antitrust, has adopted much of the same rhetoric and many of the same habits. When eggs, beef, or gasoline become expensive, officials reach first for the language of corporate misconduct. They announce investigations, demand price reductions, or encourage state attorneys general to use every available tool. The political message is simple: prices rose, therefore somebody in business must have cheated.

I did not argue that price fixing should be tolerated. I wrote the opposite: “If evidence emerges that companies secretly conspired to fix prices, they should be prosecuted.” I called price fixing “theft by another name.” Nor did I argue that monopolization, anticompetitive mergers, fraud, or exclusionary conduct should be ignored. My argument was that an unpopular price is not itself proof of any of those things.

That distinction should not be controversial. Antitrust law prohibits conduct, not weather. Section 1 of the Sherman Act reaches agreements in restraint of trade. Section 2 reaches monopolization, attempted monopolization, and conspiracies to monopolize. Section 7 of the Clayton Act addresses mergers whose effect may be substantially to lessen competition. Each requires a legal and factual showing. None reads: “Prices annoyed voters in an election year.”

The distinction matters because prices convey information. When bird flu destroys millions of laying hens, drought shrinks the cattle herd, or war disrupts oil supplies, scarcity appears in the price. The higher price is painful, but it also discourages consumption, attracts new supply, and allocates a scarce product. Government cannot abolish scarcity by accusing the price of misconduct. It can only obscure the signal or search for conduct that did not cause the shortage.

The egg case is a fair challenge—but not a rebuttal

The strongest criticism was that I “skipped right past” established collusion among egg producers. Several commenters referred to communications among executives and to an “Egg Libor” used to coordinate pricing. Their point was straightforward: if producers actually conspired, why describe the price increase as the work of bird flu?

The answer is that both propositions can be investigated without confusing them. A supply shock may raise the competitive price, and competitors may also exploit the moment through an unlawful agreement. Evidence of the latter should be pursued. If executives exchanged assurances, coordinated output, manipulated a benchmark, or agreed on prices, prosecutors should prove the agreement in court and seek meaningful penalties. Nothing in the consumer-welfare standard protects a cartel. Cartels are its easiest case.

But the existence of allegations or evidence concerning a conspiracy does not establish that every increase in egg prices, in every period, was caused by that conspiracy. The government still must identify who agreed to what, when the agreement operated, which sales it affected, and what harm it caused. Bird flu does not immunize collusion, and collusion in one period does not repeal supply and demand in another.

Some readers treated the recent settlement as a confession. It was not. The companies paid money, promised large egg donations, and did not admit wrongdoing. Settlements can reflect litigation risk, expense, uncertainty, or a desire to end a political controversy. They may be sensible, but they are not verdicts. The proper conclusion is not “nothing happened,” nor is it “the accusation proves everything.” It is that allegations should be tested against evidence.

That was precisely my point. If the evidence establishes a cartel, prosecute it. If the evidence establishes a disease-driven shortage, do not call nature a conspiracy. If both occurred, disentangle their effects rather than using one as a slogan to erase the other.

Concentration is a warning sign, but not a conviction

Several readers argued that decades of weak enforcement produced concentrated markets in which large firms can raise prices, suppress wages, and coordinate without leaving a written agreement. This is a serious concern. Concentration can make coordination easier, can increase the payoff from exclusion, and can justify close examination of mergers or conduct. But it remains a starting point for analysis, not its conclusion.

A market may be concentrated because a few firms achieved scale, reduced costs, developed better products, or won the preference of consumers. It may also be concentrated because regulation raises barriers to entry, government grants privileges, or incumbents excluded rivals. Those explanations have different legal and policy implications. Treating the market share itself as the offense avoids the very question antitrust must answer: how was the position obtained and maintained, and what did the firm do with it?

This is why the old slogan remains indispensable: antitrust protects competition, not competitors. A successful firm should not be punished for offering consumers a better bargain. A dominant firm should be punished when it maintains its position through conduct that impairs the competitive process rather than through superior skill, foresight, or industry. That is not indulgence toward monopoly. It is the line that prevents antitrust from becoming a license for government to rearrange markets whenever officials dislike the winners.

Tacit coordination poses a particularly difficult problem. Firms in an oligopoly may observe one another and independently recognize that aggressive price cutting would be unprofitable. Parallel conduct can harm consumers, but parallel conduct alone is not necessarily an agreement. If every gas station can see the price across the street, similar prices do not establish a secret meeting. Stretching “agreement” until it means conscious but independent behavior would expose lawful market responses to criminal liability and give enforcers enormous discretion. The answer is careful merger review, attention to facilitating practices, and proof of actual concerted action—not pretending the evidentiary problem does not exist.

Yes, mergers matter

One thoughtful commenter said that my essay should have discussed mergers, concentration, and monopoly power. That is fair as a description of what was outside the piece, but not as a refutation of what was inside it. A newspaper op-ed about the use of antitrust as an anti-inflation instrument cannot also be a treatise on every branch of antitrust law.

Merger enforcement is important precisely because it can address competitive risks before they become entrenched. Section 7 is predictive. It permits the government to challenge a transaction when the probable effect may be substantially to lessen competition. That is different from proving an agreement under Section 1 or unlawful monopolization under Section 2. A sound antitrust policy uses all three provisions for their intended purposes rather than treating any one of them as a general warrant against bigness.

The consumer-welfare standard does not require passivity toward mergers. It asks whether a transaction is likely to harm consumers through higher prices, reduced output, lower quality, diminished innovation, or other injury to the competitive process. It also requires enforcers to consider efficiencies and market realities. That discipline is a feature, not a loophole. Without it, “concentration” becomes a political adjective and merger review becomes a referendum on whether a company is popular.

Regulation is necessary; indiscriminate regulation is not

Many commenters answered an argument I did not make: that markets need no rules. They invoked the trusts of the Gilded Age, the financial crisis, unsafe workplaces, corporate personhood, and the general proposition that capitalism must be regulated. Of course markets require rules. Property, contract, fraud law, tort law, bankruptcy, securities regulation, environmental law, and antitrust law are part of the institutional structure that makes a market economy possible.

The question is not regulation or anarchy. It is which rule, for which problem, enforced under what standard, at what cost, and subject to what limit. A rule against competitors agreeing on price protects the market. A licensing regime designed by incumbents may suppress it. A safety rule may correct a genuine risk. A price-control threat issued because politicians dislike a lawful market price may discourage investment and prolong scarcity. Saying “regulation” does not resolve the inquiry any more than saying “freedom” does.

Several readers seemed to believe that opposition to progressive antitrust means opposition to all antitrust. That is a convenient caricature because it avoids defending the progressive program on its own terms. The modern progressive project seeks to use antitrust to pursue a sprawling collection of objectives—labor policy, political power, inequality, small-business protection, media diversity, and hostility to bigness—often without a measurable limiting principle. Those may be subjects for legislation. They should not be smuggled into broad statutory language and left to whichever regulator happens to hold office.

The consumer-welfare standard supplies the limit. It directs courts and enforcers toward injury to competition and consumers and away from free-floating judgments about social virtue. It does not answer every case mechanically, but it makes officials show their work. That requirement becomes more important, not less, when both parties are tempted to use enforcement against political enemies.

Profits, “gouging,” and the morality play

Other commenters pointed to record profits as proof that companies used shortages as cover for gouging. High profits can justify curiosity. They may attract entry and reveal where supply is especially valuable. They may also accompany collusion or exclusion. What they do not do, standing alone, is establish either.

Suppose a disease sharply reduces the supply of eggs while demand changes little. The market price rises. Producers whose flocks survive may earn unusually high margins even though they never communicated with a competitor. Those profits are not proof that the shortage was invented. They are also the incentive for producers to expand supply, repopulate flocks, and enter the market. If government treats the temporary return as evidence of guilt, it weakens the mechanism most likely to bring the price back down.

“Corporate greed” explains very little because the desire to earn a profit did not suddenly appear when inflation accelerated. Firms wanted profits before the shortage, during it, and after it. An explanation for a change must identify something that changed. Supply, demand, costs, capacity, entry, regulation, monetary conditions, fiscal policy, or coordination may do that work. Greed is a permanent human characteristic dressed up as a variable.

Nor does this absolve business of moral or legal responsibility. A company that lies, colludes, excludes rivals unlawfully, or buys government favoritism deserves condemnation. But moral indignation cannot tell us which conduct occurred. That requires evidence and analysis—the two things the word “gouging” is often employed to avoid.

Why not investigate everything?

A fair question appeared repeatedly: If a price spike may result from collusion, why object to an investigation? The government should investigate when facts provide a reasonable basis for suspicion. It should not announce that ordinary price movements are presumptively criminal or use investigations as public-relations substitutes for evidence.

Government investigation is not costless. It imposes legal expense, diverts employees, chills decisions, and creates reputational damage before any violation is proven. The state possesses compulsory process and the threat of punishment. Those powers should be used to discover whether a law was broken, not to produce a televised villain for an economic problem officials cannot quickly solve.

There is also a political danger. Once price dissatisfaction is enough to trigger antitrust scrutiny, enforcement becomes selective by design. Why eggs but not coffee? Why beef but not housing? Why one oil company but not another? The answer will tend to be political visibility, not legal principle. A neutral standard protects consumers, businesses, and political opponents alike.

Crony capitalism is not the free market

Some of the best comments argued that business has forfeited credibility by seeking subsidies, tariffs, bailouts, regulatory protection, and favorable treatment while preaching the invisible hand to everyone else. I agree. Being pro-market and being pro-business are not the same thing. Established businesses often dislike competition and are perfectly willing to use government to avoid it.

A corporation that secures a subsidy by political influence, asks regulators to hobble a rival, or purchases a tariff wall is not practicing free-market capitalism. It is practicing crony capitalism. The same is true when an administration rewards friends, pressures disfavored firms, conditions approvals on political accommodation, or uses antitrust threats as leverage. Government favoritism can create or protect market power as effectively as private exclusion.

That is why I have criticized what I call conservative socialism: the growing belief on the right that government should direct investment, manage prices, choose national champions, take special stakes in firms, and subordinate economic liberty to an official vision of “flourishing.” The answer to progressive industrial policy is not Republican industrial policy. The answer to politically directed antitrust is not politically directed antitrust with a different enemies list.

Readers who called Donald Trump a crony capitalist were therefore not rebutting my argument. They were approaching it from another direction. A government that alternately blesses favored consolidations and threatens companies whose prices or politics offend it is not defending competition. It is replacing the rule of law with bargaining power.

Amazon, Meta, Google—and the demand to “break them up”

Several comments declared that Amazon, Meta, Google, media companies, BlackRock, Vanguard, or Berkshire Hathaway should be broken up. The list varied; the verb did not. But breakup is a remedy, not a mood. Before ordering it, government should define the market, establish market power, prove unlawful conduct or an illegal acquisition, demonstrate causation, and show that the remedy will restore competition without destroying efficiencies consumers value.

My essay discussed the FTC’s Meta case because the court found that the government’s market definition ignored TikTok and YouTube while insisting that Meta monopolized “personal social networking.” That is not a trivial technicality. Market definition determines which alternatives count. Excluding obvious competitors can manufacture monopoly power on paper, but it cannot make consumers stop using them.

This does not mean large technology companies are incapable of violating antitrust law. It means their liability cannot be inferred from their names, wealth, political unpopularity, or the identity of a newspaper’s owner. If Amazon excludes rivals unlawfully, prove it. If Google maintains monopoly power through anticompetitive agreements, prove it. If Meta made an unlawful acquisition, prove it under the relevant statute. “Everybody knows” is the beginning of a campaign speech, not the end of a lawsuit.

The inherited-name theory of antitrust

That brings me back to the personal attacks. My father’s critics have spent nearly half a century claiming that the consumer-welfare standard killed antitrust. The claim survives partly because it is easier to repeat than to explain. Federal and state enforcers still challenge cartels, mergers, and monopolization. Private plaintiffs still seek treble damages. Courts still impose injunctions and structural remedies. What changed was that antitrust became more firmly tied to economics, competitive effects, and administrable legal rules.

My father’s central insight was not that monopoly should be celebrated. It was that an antitrust policy without a coherent objective will be captured by competing political demands. One group wants high prices, another low prices; one wants small firms protected, another wants efficient distribution; one wants labor interests favored, another wants local merchants insulated from chain stores. Courts cannot maximize all of these at once. A consumer-welfare orientation gives antitrust a defensible purpose and a limiting principle.

Calling that “fascist,” “communist,” “neoliberal,” or “pro-oligarch” does not answer it. Neither does reciting controversies from my father’s judicial career. If a reader believes concentration should itself be unlawful, say what concentration level, in what market, subject to what defenses, and with what remedy. If consumer welfare should be replaced, identify the objective and explain how a court is to weigh workers, suppliers, competitors, consumers, innovation, political power, and national policy when their interests conflict. The moment one asks operational questions, slogans begin to wilt.

I am proud to defend my father’s antitrust work, but I do not ask anyone to accept an argument because he made it. I ask that it be judged by whether it is correct. I extend the same courtesy to his critics. Some of the commenters did not.

What the comments revealed

The comment section unintentionally illustrated the danger my essay described. Many readers began with a disliked identity—Bork, Bezos, Trump, Vance, corporation—and reasoned backward to guilt. The law must proceed in the other direction. It starts with a defined offense, examines facts, tests causation, and only then reaches a conclusion.

The substantive critics also revealed an important communication problem for defenders of markets. Many Americans hear “free market” and imagine a government that protects corporate incumbents, socializes their losses, grants them subsidies, tolerates their lobbying, and then lectures ordinary people about discipline. They are right to reject that arrangement. Markets deserve defense because they disperse decision-making, reward service to consumers, and constrain both private and public power—not because every large corporation is virtuous.

Antitrust belongs in that defense. Properly applied, it punishes cartels, protects the competitive process, and prevents firms from acquiring or maintaining market power through unlawful means. Improperly applied, it gives officials a roving commission to punish size, direct production, manage prices, and reward political allies. The difference is not whether enforcement is “strong” or “weak.” It is whether enforcement is principled.

So here is my answer to the commenters who made an argument. Investigate credible evidence. Prosecute actual cartels. Challenge mergers likely to harm competition. Attack exclusionary conduct that maintains monopoly power. Examine concentration carefully. Reject subsidies, protectionism, and favoritism whether demanded by corporations or imposed by politicians. But do not confuse a shortage with a conspiracy, a profit with a confession, size with illegality, or indignation with proof.

And to those who offered only “Bork,” “Bezos,” “nepo baby,” or an obituary for the wrong man: thank you for demonstrating how badly antitrust needs rules of evidence.

The second Trump administration’s continuation of Biden-era progressive antitrust enforcement has been an unwelcome surprise.

Some of these antitrust cases originated in the first Trump administration but were embellished as they were advanced by Lina Khan, Biden’s chair of the Federal Trade Commission. In one case, Trump enforcers continued to use Khan’s amended complaint that said Meta had an 85 percent monopoly on consumers’ time spent on the “personal social networking” market. U.S. District Judge James E. Boasberg dismissed the government’s case, noting that regulators had ignored new competitors to Meta such as TikTok and YouTube to bolster their claim that a monopoly existed.

The administration’s rhetoric is not much better. Vice President JD Vance recently called for a shift from Milton Friedman’s defense of free-market capitalism to a Hamiltonian focus on big-government projects, adding that the aim of government policy should be to make the economy “a tool to service the dignity of the human person.” Trump’s FTC chair, Andrew Ferguson, said government intervention is necessary “to restrict the exercise of liberty when that exercise of liberty meaningfully diminishes other people’s flourishing.”

References to “flourishing” over freedom are scattered throughout the speeches of Ferguson and his colleague, FTC member Mark Meador. Now Trump regulators are picking up yet another progressive trope: blaming businesses for inflation.

That approach echoes President Joe Biden’s 2021 announcement of 72 antitrust initiatives, which attributed stagnant wages and inflation to capitalist greed rather than excessive government regulation or debt levels exceeding those at the end of World War II.

So, when inflation increased food prices, Khan dutifully led an FTC strike force to probe grocers. When gasoline prices rose, she told the oil and gas industry that it was under the government’s microscope.

Not to be outdone by their progressive predecessors, the Trump Justice Department and 17 state attorneys general recently filed an antitrust lawsuit against egg producers after a price spike last year. The companies recently agreed to a $3.3 million settlement and promised to donate 53 million eggs to food banks and nonprofits, but did not admit to wrongdoing.

The department also called on state attorneys general to “use all tools available” under state law to investigate oil companies that, according to Trump’s public statements, did not drop their prices fast enough after the short-lived ceasefire with Iran took effect.

And just before the Fourth of July weekend, the Agriculture Department pressured grocers to lower beef prices.

If evidence emerges that companies secretly conspired to fix prices, they should be prosecuted. Price-fixing is one of the oldest and clearest violations of Section 1 of the Sherman Antitrust Act. It is theft by another name.

But an equally important principle is often lost in today’s political climate: High prices are not, by themselves, evidence of price-fixing. Sometimes they are simply due to the power of nature.

Egg prices, for instance, jumped last year after millions of egg-layinghens died or were culled in the bird flu epidemic. Today, egg prices are down about 43 percent from a year ago.

Beef prices are the clear result of America’s persistent drought. With the national inventory of cattle and calves at its lowest level in more than 75 years, it is no surprise that costs increased. Gas prices have been volatiledue to global oil supply disruptions caused by the conflict between the U.S. and Iran.

Unless secret agreements are unearthed between the producers of these goods, the Trump administration’s actions are a continuation of the Biden antitrust playbook that blames capitalism for the consequences of nature and policy.

A Republican administration adopting the Democrats’ hostility to business is a sea change in American politics.

Both parties now blame the market economy for high prices, even as companies are subject to extensive regulations. Worse, these accusations hide the real causes of dysfunction in American society. Those include unprecedented levels of debt, the perverse effects of overregulation and a public school system in which American students grossly underperform their peers in other developed countries.

Bashing business is no doubt cathartic, and it is certainly good politics. But it is not, as Vice President Vance says, a way to serve the dignity of the human person.

This article first appeared in the Washington Post.

The first round took place in an antitrust classroom at Yale Law School in 1971. Reich was a student. My father, Judge Robert Bork, was the professor. Bill Clinton and Hillary Rodham were among the students in the room. Reich recently revisited those debates in both a Substack essay and a YouTube video, blaming my father for what he calls the “monopolization of America” and arguing that Robert Bork bears primary responsibility for the rise of corporate power in modern America.

Reading Reich’s account, I was struck by something remarkable. After fifty-five years, Robert Reich is still arguing against a version of Robert Bork that never actually existed.

According to Reich, my father believed that the only legitimate purpose of antitrust law was to lower prices for consumers, regardless of how large corporations became or how much economic or political power they accumulated. Reich repeats this claim so frequently that it has become an article of faith among progressive antitrust critics. The problem is that it bears little resemblance to what my father actually wrote or what American antitrust law eventually became.

The consumer welfare standard was never simply a price standard. It encompasses output, innovation, quality, efficiency, consumer choice, and long-term consumer welfare alongside prices. Modern antitrust cases involving pharmaceuticals, technology markets, exclusionary conduct, and nascent competition are litigated under the consumer welfare framework even when price effects are not the central issue. The notion that Robert Bork reduced antitrust analysis to the question of whether milk cost a nickel less at the grocery store is not serious intellectual history. It is political folklore.

What my father opposed was something entirely different. He opposed transforming antitrust into an all-purpose political instrument for addressing every social concern associated with large corporations. Reich’s recent writings make clear that this is precisely the transformation he seeks.

In a June Substack post, Reich explicitly argues that corporate concentration should be viewed as problematic “even if it provides economies of scale that might allow lower consumer prices in the short term.” That sentence deserves more attention than it has received because it lays bare the fundamental divide in modern antitrust. Reich is openly acknowledging that consumers may receive lower prices and the economy may benefit from efficiencies, and yet he would still have regulators intervene because he objects to the size, influence, or political implications of the firms involved.

Once that step is taken, antitrust ceases to be competition policy and becomes industrial policy. Regulators are no longer asking whether consumers are harmed but whether they approve of the structure of an industry or the political influence of the companies operating within it. The question shifts from economics to politics, and the answer inevitably depends on who happens to control the government at the time.

Ironically, Reich himself reminds us why my father’s approach proved so influential. Reich recalls challenging my father in class about the political power of large corporations and remembers my father’s response: “How do you expect courts to measure political power?” Reich presents this as a dodge or an evasion. In reality, it was probably the most important antitrust question anyone asked in the second half of the twentieth century.

How exactly should courts measure political power? Should judges examine campaign contributions, lobbying expenditures, media ownership, public relations spending, or the number of meetings executives have with members of Congress? Suppose a merger lowers prices by ten percent, increases output, and produces a better product, but also increases lobbying expenditures in Washington. Should the merger be blocked? If so, where is the formula that tells us when political influence outweighs consumer benefits?

Neither Reich nor the modern neo-Brandeisian movement has ever supplied an answer because no objective answer exists. Once antitrust abandons measurable competitive effects as its organizing principle, it becomes an invitation for regulators to pursue whatever social objectives they find attractive. One administration may use antitrust to promote labor interests. Another may use it to protect small businesses. Another may use it to advance domestic manufacturing or environmental goals. Another may use it to punish politically unpopular firms. The law becomes less a body of legal principles than a collection of policy preferences enforced through litigation.

That was precisely the problem my father confronted in the 1960s and 1970s. Before Robert Bork, antitrust law had become increasingly detached from economics and consumer welfare. Courts blocked mergers because firms were considered too large, condemned aggressive price competition as predatory, and often protected competitors from competition itself. Businesses learned that antitrust law could be used as a weapon against more efficient rivals rather than as a shield for consumers.

My father’s contribution was not to weaken antitrust but to discipline it. He insisted that antitrust law answer a simple question before intervening in markets: where is the harm to consumers? That requirement imposed analytical rigor on an area of law that had become notoriously unpredictable and inconsistent. It also explains why judges and scholars across the ideological spectrum eventually embraced large portions of his framework.

Reich’s current arguments suffer from many of the same weaknesses as his arguments in 1971. He treats concentration as evidence of monopoly and monopoly as evidence of consumer harm. But those are separate propositions requiring separate proof. Firms often become large because they innovate, lower costs, improve products, or create entirely new markets. Consumers were not forced at gunpoint to use Amazon, Google, or Apple. Market success may justify scrutiny, but it is not itself proof of anticompetitive conduct.

Reich also repeats the increasingly fashionable claim that corporate concentration was a major cause of inflation in recent years. Apparently, corporations discovered greed in 2021 after declining to exercise it during the previous four decades. The inflation surge that followed the pandemic occurred across countries with very different levels of concentration and very different competition policies. Fiscal stimulus, monetary expansion, supply chain disruptions, and energy shocks provide a far more convincing explanation than the sudden moral deterioration of corporate America.

Perhaps the greatest irony is that Reich and his allies eventually received exactly the opportunity they had sought for decades. The Biden administration’s antitrust agenda represented the most direct challenge to Robert Bork’s legacy in a generation. Lina Khan and her allies promised to move beyond consumer welfare and use antitrust to address concentration, labor concerns, inequality, and political power.

The courts responded by asking the same question Robert Bork had asked fifty years earlier: where is the evidence of competitive harm? Again and again, regulators offered theories about concentration, size, and influence without demonstrating likely injury to consumers or competition. Again and again, courts rejected those arguments, including courts presided over by judges appointed by Democratic presidents.

Today I serve as President of the Antitrust Education Project and continue to write and speak in defense of the consumer welfare standard, including in my recent book, cowritten with Mark W. Davis, The New Paradox: Antitrust and the Threat of Conservative Socialism. I do so not simply because Robert Bork was my father, although he was, but because the central questions he raised remain unanswered.

The debate was never about whether corporations possess power. Of course they do. The real question is whether antitrust law should operate according to objective rules designed to protect competition and consumers or whether it should become a vehicle for implementing the political priorities of whichever administration happens to hold power.

has spent fifty-five years criticizing Robert Bork’s answers. What he still has not done is answer Robert Bork’s questions.

Robert Bork and Joseph Coniglio cover what’s happening now in antitrust policy, Trump-era antitrust continuity, and why antitrust is the wrong tool for speech issues.

When the federal government sued Google for monopolizing online search functions, many assumed the outcome was inevitable. Google is huge. It dominates search. It pays billions to Apple and others to remain the default search engine on smartphones and browsers. With federal Judge Amit Mehta declaring Google a monopoly, this seemed like a watershed moment—like the crackdown on Microsoft’s exclusionary conduct in 2001, or maybe even the breakup of Standard Oil in 1911.

Judge Mehta ultimately decided that a breakup of Google would be overreach. But he did mandate that Google transfer data, syndicate results, and effectively assist competitors in building rival search products. Arguably, that remedy is a worse outcome—not just for Google, but for us all.

That ruling should alarm anyone who believes in market competition and even in private property. Google’s appeal of the district court’s ruling in the D.C. Circuit is a sharply written rebuttal of the monopoly charge; more importantly, it forces us to confront the twisting of American antitrust law into a means of giving government the ability to distribute intellectual property.

The foundational question is: Does antitrust law still protect competition on the merits, or has it become a tool for punishing commercial success and creating winners and losers in the marketplace?

Google’s brief is blunt in framing the issue in traditional terms. It argues that the company won because it built a superior product, anticipated the future better than rivals, and outcompeted them fair and square. The government, by contrast, increasingly treats success itself as suspect.

The distinction makes all the difference between a free-market system and businesses controlled (as progressive antitrust thinker Tim Wu famously said) by “the policeman at the elbow” of business.

For decades, American antitrust law has operated under the consumer welfare standard—the principle, championed most famously by my father Robert Bork, that antitrust exists to protect consumers rather than competitors. Under that framework, firms are not punished merely for becoming large or successful. The law condemns conduct that harms the competitive process itself: coercion, exclusion, collusion, predation, or restraints that reduce consumer welfare.

Google’s appeal is essentially a full-throated defense of that tradition.

The company argues that Apple and Mozilla chose Google because consumers overwhelmingly preferred Google Search. Apple executives testified that Google simply had the better product. Microsoft’s Bing, they said, was inferior and poor at monetizing advertising. In a similar vein, Mozilla’s experience switching Firefox’s default search engine from Google to Yahoo proved disastrous. Users disliked Yahoo and quickly migrated back to Google through other means. When was the last time you “binged” something? Well, perhaps there’s a reason for that.

That evidence matters because it cuts directly against the government’s central theory. If consumers actively prefer Google, and if Apple and Mozilla independently chose Google because it produced the best user experience and highest revenue, then what exactly was exclusionary about the conduct?

Google argues that nothing was.

The company insists the district court fundamentally confused competitive success with unlawful exclusion. Paying for default placement, Google says, is not inherently anticompetitive.

Companies compete for shelf space in grocery stores, preferred placement in retail chains, and advertising prominence all the time. Why should search engines be different?

Indeed, Google’s appeal repeatedly emphasizes that users remained free to switch search engines with a few clicks. Rivals were never barred from distribution. Apple and Mozilla could still promote competitors. Consumers could still download rival browsers or change defaults. Google merely won the competition to be the preset option because it offered the best combination of quality and revenue sharing.

Whether one ultimately agrees or not with that argument, it fits comfortably within traditional American antitrust doctrine. The government’s theory does not.

Increasingly, modern antitrust enforcement appears less concerned with consumer harm than with the structure of markets and the size of dominant firms. In this view, concentration itself becomes suspicious. Large companies are presumed dangerous not because they raise prices or reduce output, but because their scale allegedly limits future competitive possibilities.

That is a major departure from the consumer welfare framework that governed antitrust for nearly half a century.

More troubling still is the remedy imposed by the district court. Even if one accepts the liability ruling, the remedy goes dramatically beyond merely prohibiting certain contracts.

It confiscates and shares intellectual property, smacking of state-managed industrial policy. The distinctively American separation of government and commerce is one of the reasons our great nation has the world’s foremost economy. The absence of that separation is the story of why Europe lags behind, why China is faltering, and why the Soviet Union bankrupted itself.

Antitrust law historically sought to preserve competition, not redistribute the fruits of successful innovation. Yet the Google remedy increasingly resembles compulsory technology transfer. Google spent decades and billions of dollars developing search infrastructure, indexing systems, monetization tools, and user data feedback loops. The court now proposes forcing Google to share those assets with rivals who failed to build comparable systems themselves.

It begins to look less like antitrust enforcement and more like confiscation to advance a digital industrial policy, if not outright economic central planning.

The most remarkable aspect of the ruling may be its extension into artificial intelligence. The district court’s remedy reaches beyond traditional search into generative AI products such as ChatGPT and other emerging systems – technologies that barely existed during the period covered by the lawsuit. It is already a crowded landscape filled with competitors ranging from Big Tech hyperscalers to large and growing independent “frontier” companies. Not only was government assistance not needed to create this vibrant competition, aggressive and early intervention by government would probably have prevented it.

Lacking humility, regulators are now attempting to shape the future AI marketplace before it has even fully formed. This is where the broader philosophical stakes become impossible to ignore.

America became the world’s innovation leader not by guaranteeing equal outcomes among competitors, but by rewarding companies that innovated better, moved faster, and served consumers more effectively. Under the traditional model, firms that succeeded through superior products were celebrated, not dismantled.

If offering the best product, winning voluntary distribution agreements, and attracting overwhelming consumer preference can itself become evidence of illegality, then the center of gravity in American antitrust law has jerked violently leftward. Antitrust ceases to be a shield for consumers and becomes instead a mechanism for managing economic outcomes.

That is not merely a legal change. It is a philosophical one.

And it may determine whether the next generation of American innovators sees success as something to pursue—or something regulators will eventually punish.

Robert H. Bork Jr. is the president of the Antitrust Education Project.

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Perhaps the word “liberal” needs to be retired. Its worn plasticity is reason enough to render it shapeless and meaningless. Could the same also be said of the word “conservative”?

“Liberal” denoted classical free-market economics, ranging from Adam Smith’s invisible hand, only lightly restrained by regulation, to the hands-off approach of laissez-faire libertarianism. In the New Deal era, it came to mean government-directed capitalism and Keynesian stimulus. Now it is largely derived to describe people who are not liberal in any sense but veer toward Marxist-inflected statism in politics and economics.

But the “conservative” alternative is also increasingly indistinguishable from the “liberal” one.

This is the abiding concern of The New Paradox: Antitrust and Conservative Socialism, in which Robert H. Bork Jr. and Mark W. Davis attempt something as provocative as it is ambitious. They defend the classical liberal foundations of American antitrust law not just against the progressive Left, but also against an emergent strain on the Trumpian Right. Their central claim is as counterintuitive as their title suggests: that parts of the modern conservative movement are drifting toward what they call “conservative socialism,” using the tools of antitrust not to protect competition but to punish disfavored firms for political ends and bring business under the thumb of regulators, what Biden’s progressive enforcer Tim Wu calls “the policeman at the elbow.”

The book’s title is a play on The Antitrust Paradox, the foundational work by one of the author’s father—Robert Bork, jurist and legal scholar—who famously reoriented antitrust doctrine around the consumer welfare standard. Bork argued that the purpose of antitrust law is to promote efficiency, which protects the welfare of consumers, not lesser competitive firms seeking to shield themselves from competition.

Bork Jr. and Davis argue this consensus—adopted by the US Supreme Court in 1979, one year after the book’s publication—is now under threat from two political directions. The threat from the left is the firebrand progressive antitrust movement, championed by Biden’s Federal Trade Commission Chair Lina Khan. The other threat is a surprise, the often-overlooked radicalism of the “Khanservative” imitators of Khan within the new Right, self-described conservatives who have continued the statist, government-central merger guidelines of the Khan era without changing a dot or tittle. The authors warn that both antitrust movements are addicted to power, sharing a willingness to weaponize antitrust for political or cultural objectives rather than economic ones that would benefit consumers.

The authors contend that feigned outrage at “Big Tech” has led Khanservatives to embrace expansive antitrust enforcement out of pique against censorship of speech. Bork and Davis frankly admit that large social media platforms did censor, deplatform, and shadowban conservative speech during the Biden administration. But they argue that this censorship was largely driven by secret programs of the Biden White House, which dispatched 80 FBI agents to intimidate Meta and other highly regulated companies into censoring conservative speech.

While conservatives have every reason to be sore, Bork and Davis argue that Khanservatives overcorrect, continuing the antitrust suits and progressive legal theories of Lina Khan out of sheer pique and political animus. While Big Tech is the favored target of both Khan and the Ferguson-Meador team, the rules being cemented in place by regulators of both parties is turning antitrust into a form of industrial policy, precisely what earlier generations of conservatives rejected.

Worse, Ferguson and Federal Communications Commission Chairman Brendan Carr are taking government intervention to an extreme that even Lina Khan did not dare. They are weaponizing the government’s merger authority in an attempt to control speech and journalism. Example: Carr threatened to derail Paramount Global’s merger with Skydance Media if CBS News, owned by Paramount, did not settle President Trump’s lawsuit over how it edited an interview with then-Vice President Kamala Harris. This was a nuisance lawsuit, asserting an injury over the editorial judgment of a news organization. In the hands of Carr, however, it was a live threat to a major business deal. As soon as Carr’s tactic extracted $16 million from CBS, Carr suddenly dropped any objections to the merger.

For his part, Andrew Ferguson is pioneering the use of “terms and conditions” of news apps like Apple News to assert a right to enforce what he considers more balanced coverage. Carr recently followed up by threatening to pull the broadcast licenses of network affiliates if they don’t provide more balance in their coverage of the Iran War.

Bork and Davis write:

It is understandable why conservatives savor the schadenfreude of CBS’s discomfort, a network that frequently vilifies the right; or want to discomfort Apple News, which doesn’t include posts from Breitbart or National Review. But make no mistake—this is a base act of state censorship, an abandonment of principle and the Constitution. In this way, conservatives used government antitrust power to force a government-mandated “fact check” of a news organization and intimidate its corporate owner for speech. This is not only unprincipled. It is also supremely stupid. If Carr and Ferguson succeed in pioneering new ways to use regulatory power as a threat to punish speech, they will have created a regulatory power certain to be used against conservative media and organizations by the next progressive administration.

“What he [Carr] said there is dangerous as hell,” Sen. Ted Cruz said, comparing the attraction of the power to censor opponents to the evil temptation of the ring in Lord of the Rings. “Going down this road, there will come a time when a Democrat wins again, wins the White House . . . they will silence us.”

Bork and Davis follow up on this warning:

Imagine if Lina Khan returns to the FTC chairmanship under the next Democratic president. Could she similarly threaten the nonprofit Media Research Center—the conservative watchdog of mainstream media foibles that spotted Apple News’ biases—with being ‘deceptive’ because it has a given slant? Could she drag Fox News, Newsmax, Breitbart, and National Review through costly investigations for ‘violating reasonable consumer expectations’ for not reporting the approved line on climate change? Could the next progressive to chair the FCC use regulatory authority to extract payments for editorial decisions in how they cover Democrats?

Bork and Davis conclude that this unprecedented enablement of government power over speech and journalism is not just unprincipled but “ideological suicide.”

This willingness of Bork and Davis to critique the Right from within gives it intellectual bite. The authors consistently return to their core ideas—that consumer welfare should be the lodestar of antitrust and that true conservatives should return to the rule of law and institutional restraint.

The New Paradox is a sharp, necessary critique of a new Right that is ceasing to be on the Right. The real danger to antitrust, they argue, is not overenforcement or underenforcement but the loss of principle itself.

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Rick Amato is a former financial adviser for Merrill Lynch and founded the Amato Wealth Management Group. He hosts Politics and Profits with Rick Amato.

This review was first published in American Greatness.

Europe is failing, perhaps dying. And it wants us to die with it.

Europe’s decline is partly based on demographics. Women in the European Union are having fewer children, well below the replacement rate, creating ghost towns in Tuscany and leaving factories idle in Germany. The most talented European youth and energetic entrepreneurs, from Budapest to Paris, are stymied by overregulation, crushed under strict hierarchies and credentialism that border on a caste system.

The results of Europe’s stultified society are evident in Mario Draghi’s report on European competitiveness. The former Italian Prime Minister found that 30 percent of European startup businesses that become “unicorns,” those growing to more than €1bn in valuation, move abroad. The vast majority of European unicorns emigrate to the United States.

This happens because a skein of regulations, restrictions, and high taxes imposed by Brussels and London is choking the innovation of European youth and the prospects for economic growth. Fifteen years ago, the European economy was 10 percent larger than that of the United States. By 2022, the U.S. economy had grown by 72 percent. China’s economy had grown by almost 300 percent. The European Union grew over this time by only 21 percent.

As result, the European economy is now 23 percent smaller than that of the United States. This is the result of a deliberate and vitiating embrace of progressive regulatory theories like those embraced by Khan and Khanservatives. Rep. Scott Fitzgerald, a Republican from Wisconsin, captured the essence of global economic trends: “America innovates, China replicates, and Europe regulates.”

As Europe fails, the Eurocrats in Brussels have chosen not to find ways to liberate the innovation of youth and the animal spirits of their entrepreneurs. They have, instead, chosen to dedicate their energies to the regulation of wealth instead of wealth creation. They have especially embraced antitrust policy as a way to degrade and perhaps destroy U.S. competitiveness. Europeans now have the mindset of the proverbial Russian peasant who would rather kill a neighbor’s cow than buy milk from that neighbor, or better yet, invest in a calf.

It is easy to see how Europeans, with progressive ideology, got themselves into this mental cul-de-sac. The mystery is why so many Americans on the left and increasing numbers on the right are supporting this economic warfare against American business, jobs, and consumers.

Criminalizing American Innovation

The main targets of Europe’s ire are America’s most innovative companies – Apple, Alphabet/Google, Amazon, Meta Platforms/Facebook, Nvidia and other technology leaders. Many European regulators, like much of the blogosphere, see these companies as if they were nothing but the playthings of a few billionaires. But America’s technology sector is the nation’s sharp edge in global leadership in business and a core driver of our national defense. Tech employs almost 10 million people in the United States. It generates hundreds of billions of dollars in returns annually to the portfolios of tens of millions of U.S. retirees.

These companies provide the bulk of our nation’s research and development. Alphabet (Google) invested more than $45 billion in R&D in 2023, Meta almost $40 billion, Apple $30 billion. Amazon invested a whopping $85 billion into research and development in that year. The pharmaceutical company Merck directed $30 billion into creating life-enhancing and life-saving compounds. These companies operate as venture capitalists, encouraging the larger ecosystem of small innovative startups whose founders hope to be acquired by a large company that can commercialize their discoveries and make them billionaires. It’s a powerful incentive program and it has maintained the status of the United States as the world’s technology leader since the 1990s.

Europe has a meager tech ecosystem. It has no equal to Apple, no “Pomme,” or any other European company with the stature of an American Big Tech companies. Rather than look within to understand Europe’s failure, as Draghi did, European regulators have convinced themselves that the success of these American companies can only be attributed to some form of competitive predation. If these American companies are so big and successful, it must be due to abusive monopolies. So slaughter their cow!

The European Union’s blade is the Digital Markets Act, that targets the major “gatekeepers” of the digital economy – the providers of online search engines, app stores, and messenger services. China’s ByteDance is the only one of the EU’s current targets to be defined as a gatekeeper that is not American. The others are the usual suspects – Alphabet, Amazon, Apple, Meta and Microsoft.

The European Parliament also passed the Digital Services Act, a rule to strengthen consumer privacy. The practical effect of these two laws together is to require gatekeepers, a.k.a. American tech companies, to allow third-parties, including competitors, to interoperate with their services. They forbid these American companies from preferencing their own services and products over those of competitors and other third parties.

The new laws have some neutral and arguably beneficial consumer aspects, such as allowing advertisers to verify the results of their ads, and expanding the privacy rights of consumers. But overall, the Digital Markets Act would evaporate the profit centers of U.S. tech. In essence, European law says to American technology companies – quit being businesses! European regulation threatens to transform major U.S. social media platforms into so many versions of low-profit Reddits at best, and into regulated public utilities at worst.

The draconian nature of the new regime can be seen in the EU’s treatment of Meta, the owner of Facebook and Instagram, which was hit with a €200 million fine in April 2025. Meta had responded in 2023 to the Digital Markets Act by creating a pay-or-consent model. This model offered European users of Facebook and Instagram the option of giving their explicit consent to be tracked in exchange for a free service funded by ad revenues, as is the case in the United States. Or European users could have chosen to step out of that model and pay a modest sum for an ad-free service.

The “pay or consent” option was a major restructuring of Facebook’s European business. It went into effect without official feedback. Then the EU ruled that giving such a choice to consumers to be a violation of the Digital Markets Act, and levied its massive fine on Facebook for its good faith attempt to comply with the law. Facebook was then told by Europe to offer a free service with no way for the company to support it.

Thus new EU law utterly disrupts how U.S. companies exchange free services (like Facebook) for being able to monetize the user’s data (employing anonymized IDs to match ads of interest in one’s feed). It is being forced to deny consumers the option of providing a paid alternative. The EU’s fines on Meta are now close to €1 billion.

This is just one of the ways the European Union is determined to enforce its Digital Markets Act to outlaw the basic business models that made Apple, Google, Meta, Microsoft, and Amazon America’s most innovative companies. They are now explicitly targeted by this law as digital “gatekeepers” in need of wholesale restructuring into social media utilities.

If this still strikes you as hyperbolic, consider what the EU is doing to Apple.

Apple has invested more than $100 billion in recent years to produce products that are seamlessly and safely linked, providing levels of security and privacy valued by consumers worldwide. Central to Apple’s success is the willingness of developers to create new apps with powerful capabilities for Apple customers. But Apple enforces conditions on developers. They are granted a degree of access to Apple systems, but not so much that they can steal Apple’s proprietary algorithms or – most importantly for antitrust – access and exploit user data.

For example, when developers create apps that rely on sound, Apple requires them to ask users for their permission before accessing their microphones. If developers want to record audio, they also must get explicit permission. Similar guardrails are in place for apps used for banking, gaming, and a variety of content and services. Developers can access Apple’s Touch ID, but they cannot access data in the Secure Enclave inside the iPhone. Not even Apple can access it. Apple could be likened to a bank that will allow access to a vault room, but won’t allow rifling through safety deposit boxes.

Taken literally, the law’s demand for “interoperability” with developers and competitors attempts to force Apple to throw open the safe deposit boxes and expose consumers’ most sensitive data. The EU mandate would allow access to consumers’ communications over iMessage – whether 6-digit codes texted by banks, Wi-Fi passwords, or personal communications. Also at risk is data on AirPlay, CarPlay, and Siri. Every message, email, phone call, image, and calendar will be potentially exposed to myriad developers, sure to be exploited and likely to be resold on the international market. Thus, Europe, in the name of protecting consumers, is forcing the exposure of users’ data, commoditizing it in the name of interoperability. It is a virtual certainty that some buyers will be cut-outs for China. As the FBI has warned, China “uses elaborate shell games” and overweight voting rights to control companies without tipping off its real ownership.

What is Apple’s crime? Apple was accused of not allowing app developers to steer customers to alternate platforms owned by competitors. In other words, Apple is being told to provide a platform for competitors – and pay for it. This is not unlike walking into a shop and telling the shop owner to allow his competitors to set up booths in his store. This intrusion threatens the carefully cultivated culture of Apple. That company’s appeal to consumers rests on its curation of a high-quality store for its apps. Steve Jobs, as Apple’s founder and creator, was especially adamant that Apple would keep pornography out of its shop. But European regulators, knowing better, forced Apple to admit a competitor, AltStore. Now, thanks to the EU, European customers of the iPhone or their children can access curated pornography from across the web thanks to AltStore’s HotTub app.

Apple, along with Meta, was an early target of Digital Markets Act fines. The European Commission slapped Apple with a €500 million Euro penalty, despite Apple’s strenuous efforts to comply with the law. European regulators said that Apple must remove technical and commercial restrictions that prevent app developers from steering users to cheaper deals outside the App Store. Apple complained: “We have spent hundreds of thousands of engineering hours and made dozens of changes to comply with this law, none of which our users have asked for. Despite countless meetings, the Commission continues to move the goal posts every step of the way.”

Microsoft came under investigation for its Teams collaboration video and chat software on its Microsoft 365 platform. What raised European suspicion? Microsoft was accused of being a moral monster for packaging a new product with other of its products and for trying to entice consumers to adopt them. Thus, practices that are perfectly normal for most European, “non-gatekeeper” companies are somehow considered malevolent tying when American tech “gatekeeper” companies employ them.

Not only is Europe challenging the business model of America’s leading companies, under Europe’s new Digital Markets Act, these companies can be hit with fines that threaten their very existence. This may not sound credible, given the size of U.S. Big Tech companies. But consider: Fines are not levied on an American company’s profits in Europe. The DMA’s penalty is a 10 percent fine imposed on an American company’s turnover or revenues – worldwide. A second infraction elicits a 20 percent fine of an American company’s worldwide revenues. Meta CEO Mark Zuckerberg told Joe Rogan that Europe has fined U.S. tech companies more than $30 billion.

Winding up for the monumental fines of the DMA, the Dutch Data Protection Authority, acting under the auspices of the DMA, last year fined Uber $324 million for transferring some customer data to servers in the United States during a time when the company’s obligations were unclear after the European Court of Justice had struck down the U.S.-EU Privacy Shield Agreement. Meta was fined $1.3 billion for a similar infraction. These massive fines were imposed despite no violation of the privacy of a single European. Fines of such magnitude bleed off money that could be better spent on innovation and more product choices for consumers.

You might think that regulation in the United Kingdom after its Brexit departure from the EU would sure be more rational. Oddly, the withdrawal from the EU did not stop Britain – for years under supposedly market-friendly Tory prime ministers – from internalizing the progressive ideology of the EU. Consider how the UK’s Competition and Markets Authority (CMA) stepped in to prevent Meta from acquiring a company called GIPHY, which provides the limited function of searching for short, GIF-like files with limited movement. Why did the British CMA intervene to block this merger? It claimed a loss of competition in the U.K. ad market. British regulators, however, suppressed facts, including the most telling one of all: GIPHY had failed to sell a single ad in the U.K. market.

Why is Europe out to wreck America’s leading companies? It seems to be out of a mixture of progressive thinking and anti-Americanism. Consider: In the first quarter of 2024, the largest seller of smartphones in Europe is Samsung, with 37 percent of the market. Add to that China’s Xiaomi market share, and the two Asian giants have a combined 53 percent share of the European smartphone market. And yet it is Apple’s 22 percent share in Europe that somehow defines it as a “gatekeeper” in need of radical restructuring. These latest fines for violating the DMA are eye-popping, but they continue an anti-American trend that has resulted in roughly $8.7 billion in fines imposed on another top American innovator, Google, over the past decade.

“This is how state capitalism takes root—not in a single dramatic leap, but through a series of interventions. First, regulators block private adaptation. Then policymakers step in to “repair” the damage they created.”

If news reports are correct that the Trump administration plans to rescue Spirit Airlines in return for up to 90% equity in the company, passengers may soon be boarding a carrier that is basically government-owned. Will the renewed airline be decked out with a gold-leaf interior?

Call it a bailout if you like, or dress it up as a “temporary intervention.” A controlling federal stake in a private airline is something new in America. Yet it won’t be the first time political power has merged with private enterprise. If the Spirit Airlines takeover happens (as seems likely), it will only be this administration’s latest adventure in state capitalism.

Across multiple sectors, the Trump administration has mixed public money with private markets in ways that would have once been unthinkable in the U.S. The federal government has taken a minority stake in Intel. It has claimed a “golden share” in U.S. Steel. It has extracted revenue streams from Nvidia and AMD. It has shaped corporate strategy through tariffs, subsidies and regulatory favoritism—rewarding firms that align with political priorities or promise domestic investment.

At times, Washington has behaved less like a regulator and more like a corporate director. President Trump has demanded the removal of executives, including the CEO of Intel and even a Netflix board member. This isn’t neutral governance. It’s political direction of private enterprise.

We got a taste of this during the Obama administration’s ill-fated dalliance with the failed solar-energy company Solyndra. The history of that debacle offers a warning. Solyndra received more than $500 million in federal loans, only to go belly up. Like nations that have subsidized failing and inferior national airlines, the Trump administration will learn that politicized capital allocation distorts markets, misprices risk and often causes beneficiaries to fail. This happens because investment decisions become driven by political calculations rather than by efficiency or consumer demand.

Mr. Trump has moved Washington past setting the rules of the market to steering its outcomes. This is likely to backfire. The same federal government that may soon own Spirit played a decisive role in undermining its last viable path to independent survival.

Long before this year’s geopolitical shocks and fuel-price volatility, Spirit was already in decline. Revenue was down. Its stock price, once above $80 a share, collapsed to 47 cents by early 2025. The company filed for Chapter 11 bankruptcy in November 2024.

This downward spiral wasn’t inevitable. Spirit’s decline was accelerated, if not sealed, by the Biden Justice Department’s aggressive antitrust campaign against a proposed $3.8 billion acquisition by JetBlue. That deal would have allowed Spirit to scale, improve service and compete more effectively against the dominant legacy carriers.

Even the presiding judge, William Young, acknowledged the merger’s potential benefits. It would, he noted, bring needed competition to American, Delta, Southwest and United. But he ultimately blocked the deal on the theory that Spirit’s ultralow-cost model exerted downward pressure on fares. “Spirit is a small airline,” Judge Young wrote. “But there are those who love it. To those dedicated customers of Spirit, this one’s for you.”

The airline was denied the opportunity to evolve through a private-sector solution. Denied access to JetBlue’s advantages, Spirit collapsed. Now, the proposed solution is a government takeover.

This is how state capitalism takes root—not in a single dramatic leap, but through a series of interventions. First, regulators block private adaptation. Then policymakers step in to “repair” the damage they created. The result is a system in which government both creates market failures and claims the authority and ability to resolve them.

If the Spirit deal proceeds, the federal government will be validating a new model of political control over private enterprise—one in which Washington decides which companies survive, how they operate, and who pays the price. (Spoiler alert: If you’re a taxpayer, you do.) So buckle up. It’s going to be a bumpy ride.

A version of this article also appeared in The Wall Street Journal.

Before Loper Bright, federal regulatory agencies exercised growing discretion in how they interpreted – and inevitably expanded – statutory powers. This came to be known as Chevron deference, meaning deference to agencies’ interpretation of how to administer the law.

Loper Bright brought that freewheeling era to an end by restricting agency actions to the letter of the law. Now, in what will one day be seen as a conservative own goal, Chairman Carr is quietly restoring the power of the administrative state to boss business around.

This is happening through the FCC’s handling of Nexstar’s acquisition of TEGNA’s network of television stations. By law, no owner can control stations that reach more than 39 percent of American households. The Nexstar-TEGNA deal would create ownership of 265 stations serving about 80 percent of American households.

One can argue that this law is antiquated, given the importance of streaming and other internet-based sources for entertainment and news. But it is still the law. Does that mean anything anymore?

Peter Roff, writing in a syndicated piece:

Instead of enforcing the law, the FCC’s Media Bureau – filled with unelected staffers and with no vote of the full Commission – simply waved it.

That move was unlawful and strategic. Bureau actions are not final Commission decisions, meaning the FCC and Nexstar are trying to dodge meaningful judicial review. If they succeed, Loper Bright will stand for very little. Regulatory agencies won’t have to reinterpret statutes because they’ll be free to ignore them.

One unintended consequence is that the FCC’s move has ensnared Nexstar in a morass of litigation. Roff describes what will be the lasting unintended consequence of the Trump Administration’s regulatory overreach:

Conservatives once warned relentlessly about unelected bureaucrats accumulating unchecked power, regardless of whether or not they were on your side. Loper Bright was supposed to bring an end to that. Instead, the FCC is testing a dangerous new theory: that agencies can sidestep Congress and the courts as long as they move fast enough.

Add to this the willingness of Chairman Carr and Federal Trade Commission Chairman Andrew Ferguson to use their regulatory heft to try to police journalism. Carr held up Paramount’s merger with Skydance Media until the latter paid $16 million to the Trump presidential library project over President Trump’s specious, nuisance lawsuit over how Paramount-owned CBS News edited an interview with Kamala Harris during the campaign. Ferguson is threatening Apple News with regulatory action based on the risible claim that its curation of liberal-leaning news sources is actionable as a consumer violation under that outlet’s terms and conditions.

Not even the Biden Administration, which secretly censored conservative content on social media, dared to claim the authority to publicly regulate journalism and First Amendment activity.

On the economic side, the Trump Administration is busy importing China’s approach to state capitalism, with the government taking large stakes in a number of companies and business deals, from Nvidia’s sale of advanced chips to a “golden share” of U.S. Steel.

And now Carr is renewing agencies’ administrative power – in this case, an outright defiance of the law – undermining the Supreme Court’s rollback of Chevron deference.

When progressives one day return to power, they should be pleased at all the new levers of power that the Trump Administration has installed for them. But for conservatives, it won’t be pretty.

For the remaining tribe of free-market, smaller-government conservatives, the legacy of Teddy Roosevelt elicits conflicting impulses.

As the first progressive president, TR inaugurated the era of the nation’s chief executive as an outsized celebrity. Many of TR’s great achievements—in trust-busting, food inspection, and environmental protection—were necessary, but they opened the way for the growth of the regulatory state. In his last campaign for the presidency, the Bull Moose edition of TR ran more or less as an out-and-out socialist, proposing an early version of a comprehensive industrial policy, with government in charge of prices and most business decisions.

In this, TR was prescient. That version of TR would have fit right in with the Biden era of Tim Wu and Lina Khan.

And yet… TR remains one of the most iconic of Republican presidents. And there was that famous grin… and the cowboy duds… and the charge up San Juan Hill. It’s easy to imagine TR in heaven riding happily on a horse alongside Ronald Reagan. On the other hand, Calvin Coolidge, the most reticent of all presidents, may be a small-government conservative’s idea of virtuous modesty, but no child clings to a doll called a Calvin-bear.

So TR nostalgia will always remain seductive. But when some of the new right use TR as branding for today’s most progressive policies in economics and antitrust, alarm bells should go off for true conservatives.

Case in point is the speech that Federal Trade Commissioner Mark Meador gave last week to the Bull Moose Institute. It was a well-crafted speech, rooted in a strong sense of history. Recounting Roosevelt’s “New Nationalism” speech, Meador harks back to what seems to him to be the timeless principles of antitrust enforcement – a very American sense of wanting to cut large, unaccountable organizations down to size.

What often gets lost in the nostalgia is that the trusts of TR’s day were nothing like any large business today. When historians write of the trusts’ “ruthless” tactics, they often involved criminal and thuggish acts—from bribery to threats to slaughtering men, women, and children in suppressing strikes. Even the business strategies of trusts in those days, from price-fixing to horizontal conspiracies, are acts that would be plainly illegal today.

Still, Meador sees TR as relevant to antitrust today. He said of the 26th president:

He did not oppose the great trusts of his era merely because paid consultants told him that consumer prices would fall if he did so. He opposed them because they acted in ways that corrupted free markets: by replacing competition with coercion, earned success with entrenched privilege, and open markets with corporatism. He drew a line, and the line was legal and moral before it was economic. As he stated, with characteristic directness: ‘[w]e draw the line against misconduct, not against wealth.’

And with these words, Meador takes TR’s sheriff’s badge and pins it on his own chest. But does this approach make sense today? Let me enumerate the flaws of TR antitrust revivalism.

Replacing the Consumer Welfare Standard

Meador implies that big corporations today skate by obvious antitrust violations because “paid consultants” are telling policymakers that the efficient production of large enterprises often means cheaper goods. But it isn’t consultants who are instilling this message. It is federal judges and their Consumer Welfare Standard doctrine, which has been in place for almost half a century, since it was adopted by liberals and conservatives on the U.S. Supreme Court in 1979. And the goal of that standard is not just cheaper goods, but more choices and innovation to the benefit of consumers.

While the Biden regulators jettisoned the Consumer Welfare Standard in their merger guidelines—and the Trump antitrust regulators at the Department of Justice and Federal Trade Commission did nothing to restore it—that standard remains the governing principle of the federal judiciary today.

Without that standard, firmly anchored to the consumer, we would return to arbitrary antitrust in which the whims, biases, and ideology of the regulator and the judge would determine outcomes. This is a recipe for politicized antitrust enforcement and actual censorship, whether it’s Lina Khan going after Twitter, or Trump regulators going after liberal news organizations that offend them.

In harking back to progressive-era antitrust, Mark Meador would abandon antitrust’s only coherent limiting principle.

A Return to “Big Is Bad”

Mark Meador argues that conservatives should embrace aggressive enforcement, with underenforcement as the greater risk. He emphasizes decentralization and automatic suspicion of large firms.

This was the thinking several decades ago that put Walmart in the crosshairs of progressive criticism. But economists countered that they could track a clear “Walmart effect” in declining prices and rising choices for consumers. Today, it is the FTC that is trying to break up Amazon, another action consumers absolutely do not want.

The reason is that large firms often reflect efficiency and economies of scale to the benefit of consumers. Meador’s framework would regress to this “big is bad” doctrine in antitrust, making efficiency potential evidence of a crime.

Undermining the Rule of Reason

The “rule of reason,” popularized in the late 19th century by a federal judge named William Howard Taft, evaluates conduct based on the economic effects of a business practice on competition – and by implication, on consumers. Meador kicked off his tenure with an attack on “fetishized economic analysis” in his essay on “Antitrust Policy for the Conservative.”

It is easy to dismiss “efficiency” as a heartless irrelevancy. But a regulator who governs by what his heart tells him rather than by what the market reveals is like a surgeon who has a great bedside manner, but is incompetent with a scalpel in his hand. A good surgeon may have a poor bedside manner, but he shows fidelity to the patient by being good at his job.

Without the rule of reason, courts lose any way to distinguish procompetitive from anticompetitive conduct. When the sheriff of antitrust acts from intuition and ideology over economics, enforcement becomes political and error-prone.

A Bias Toward More False Positives

In antitrust, a false positive is an act that blocks conduct that would have been beneficial to the economy and the consumer, while a false negative would be a missed antitrust violation.

My father, Robert Bork, famously argued that the errors of overenforcement are far worse because they establish binding legal precedents that stymie innovation across markets. False negatives, on the other hand, may miss a temporary, unfair advantage. But the market has a way of demolishing such advantages much more effectively—and often faster—than the law can.

Remember when Blackberry, Toys “R” Us, and AOL seemed unstoppable?

“Competition is an evolutionary process,” Robert Bork and Ward Bowman wrote in 1965. “Evolution requires the extinction of some species as well as the survival of others. The business equivalent of the dodoes, the dinosaurs, and the great ground sloths are in for a bad time—and they should be. It is fortunate for us all that there was no Federal Biological Commission around when the first small furry mammals appeared and began eating dinosaur eggs. The commission would undoubtedly have perceived a ‘competitive advantage,’ labeled it an ‘unfair method of evolution,’ and stopped the whole process right there.”

The Fatal Vagueness of Moral Framing

America First Antitrust rhetoric is resplendent with rousing phrases like “human flourishing” and the “common good.” To read a speech from Meador or from his former colleague, Justice Department antitrust chief Gail Slater, is to be flooded with the imagery of real Americans buttering their corn and digging into steaks cooked on the backyard grill under an American flag.

The reality of the new right’s TR-inspired adoption is a move away from a very American approach to antitrust and closer to the hyperactive statism of the European Union. America First Antitrust jettisons the anchor of economics and consumer welfare in favor of the progressive ideas of Lina Khan, allowing big government to wield antitrust enforcement as a weapon, rather than as a tool for economic (and thus, social) advancement.

The new right may think it is reviving Roosevelt. In reality, it is reviving the very progressive project conservatives once opposed—replacing markets with mandates, and economics with politics.

A revived TR antitrust policy for the 21st century would mean the replacement of economics with politics, which can only end in tears for conservatives.

TR is a good role model for human achievement. There are better models for policy.

“Don’t expect to build up the weak by tearing down the strong,” said the 30th president of the United States, Calvin Coolidge. “It is more important to kill bad bills than to pass good ones.”

A version of this article also appeared in RealClearMarkets

The Robinson-Patman Act of 1936 is the black sheep in America’s family of antitrust laws. The Sherman Act of 1890 and the original Clayton Act of 1914 have long been read to promote efficient competition, not to protect small firms from the rigors of competition. But the RPA has always been different. Its convoluted text seems to require protecting the profit margins of small retailers even at the risk of raising consumer prices. Fifty years ago, the federal antitrust agencies soured on that project and gradually stopped enforcing the RPA.

Those days of considered neglect are now over. The RPA has regained a surprising degree of bipartisan support (see here, here, and here), and the FTC is actively litigating its first RPA case in decades. What explains the new enthusiasm for this Depression-era statute, and what are the consequences for consumers?

Some history

Let’s go back to the beginning—to the economic history that originally motivated this legislation. A hundred years ago, a single company’s business plan radically disrupted the U.S. retail sector and created important political enemies along the way. That company was a vertically integrated supermarket chain named A&P, which eclipsed traditional grocery stores and rapidly became America’s largest retailer by far.

How did A&P do it? Because of its scale, A&P negotiated lower wholesale prices from food producers than smaller grocers could bargain for. And A&P had vertically integrated into warehousing and distribution, so it could avoid paying the traditional wholesale middlemen who served the smaller grocers. A&P passed these upstream savings on to consumers in the form of lower retail prices that corner grocers could not match. This benefited consumers but harmed the corner grocers and the independent wholesalers who served them.

The RPA was enacted in large measure to curb A&P’s successful business model and—no surprise—was originally entitled “the Wholesale Grocer’s Protection Act.” Let’s quickly review the RPA’s working parts as they relate to so-called “secondary-line” price discrimination.

In general, the Act forbids suppliers to sell “commodities of like grade and quality” at different prices to different purchasers if doing so gives one purchaser a competitive advantage over another. But that general prohibition on price discrimination comes with a variety of qualifications and defenses that have spawned 90 years of interpretive controversies.

First, the Act applies only to sales of tangible products, not to services, and only if the goods qualify as “interstate” in the sense that they can be said to cross state lines. That requirement has given rise to all sorts of disputes about (for example) how to treat goods that are manufactured in one state, shipped to a warehouse in another state, and only then sold to the latter state’s purchasers.

Second, a supplier that provides special discounts to a given purchaser can escape liability if it proves that it acted in good faith “to meet an equally low price” of a competing supplier. But this affirmative defense permits the supplier only to meet, not to beat, the lower price. It also requires defendants to substantiate their prior knowledge about their own competitors’ prices. That requirement in turn creates perverse incentives for the relevant actors to share otherwise non-public price information, with the potentially anticompetitive effect of stabilizing prices.

Another affirmative defense enables a supplier to escape liability if it proves that its price differences mirror “differences in the cost of manufacture, sale, or delivery” of the relevant goods. In practice, this is a difficult defense to substantiate. Litigation on the issue, in the words of one Yale professor in 1937, “proceeds by the ordeal of cost accountancy,” with opposing experts arguing about such economically intractable issues as the proper way to allocate joint and common costs across different transactions.

Now let’s return to the Act’s core ban on wholesale price differences and the immediate effects on A&P and other chain stores. Before 1936, A&P could bargain aggressively with farmers for company-specific discounts on (say) eggs and pass the savings through to its retail customers. But after 1936, a farmer had to charge A&P the same price per egg that it charged smaller grocers or their wholesale suppliers. This requirement plainly benefited small grocers and wholesalers at the expense of A&P. But what was the likely result for consumers then and today? In the aggregate, does the RPA’s qualified ban on price discrimination raise the wholesale prices charged to grocery stores and ultimately the retail prices charged to consumers?

The consumer effects of restricting wholesale price discrimination.

The answer to that consumer-welfare question is complex and market-dependent (see here, here, and here). As the RPA’s defenders explain, it is too facile to argue that RPA enforcement always leads to higher retail prices. Banning price discrimination does not necessarily cause a supplier to raise wholesale prices for all buyers, including the most powerful ones, to the highest level that the supplier would otherwise charge the smallest buyer with the least bargaining clout. Instead, the new wholesale price equilibrium might well fall somewhere between the highest and lowest wholesale prices that would be charged but for the ban on price discrimination.

Consider the newly uniform wholesale price of eggs after 1936 in our A&P hypothetical. Depending on competitive dynamics, that price might well have been (1) lower than what the smallest grocer would have paid absent the RPA but (2) higher—and perhaps much higher—than the much lower wholesale price that A&P previously negotiated. That outcome would have been a mixed bag for consumers. On the margins, a significant shift in wholesale costs would have enabled small grocers to lower their retail prices while forcing A&P to raise its own retail prices. And the most price-sensitive retail consumers—those with tightest budgets who came to A&P looking for the best bargains—likely paid more for their eggs, all else held equal.

What was true in 1936 remains true today. The RPA likely has similarly regressive effects on low-income households, at least in some contexts. And the statute’s qualified ban on price discrimination might also cause more systemic competitive harms. For example, by mandating wholesale price uniformity, the RPA makes coordination easier and retail prices stickier by increasing each market actor’s visibility into other market actors’ pricing practices.

Much of the recent discussion about the RPA’s competitive effects involves a debate about the so-called “waterbed effect” modeled by some economists and championed by Republican FTC Commissioner Mark Meador. The theory proceeds as follows. Because upstream price discrimination reduces a larger retailer’s wholesale costs and permits it to undersell a smaller retailer, it can lessen the smaller retailer’s market share and thereby reduce the smaller retailer’s bargaining clout with their common supplier. In a worst-case scenario, the feedback loop may lead the smaller retailer to exit the market. And the RPA’s defenders argue that, in some contexts, this effect might result not only in hobbled competitors, but also in higher average retail prices.

That outcome, however, is likely the exception rather than the rule. Even where price discrimination ends up marginalizing small retailers, competition among large retailers (e.g., Walmart, Target, and Costco) normally induces each such retailer to pass some and perhaps most of its wholesale discounts through to consumers, depending on the extent of the downstream competition. And the waterbed effect should have no effect at all on smaller retailers (such as general stores in remote rural areas) that do not compete with large retailers in the first place. By hypothesis, their market share is unaffected by the large retailers’ competitive offerings, and thus their bargaining power with suppliers is unaffected by whatever discounts those larger retailers receive.

The decline, fall, and sudden rebirth of federal RPA enforcement.

In short, even if the RPA does occasionally have consumer benefits, such benefits are episodic and incidental to the protectionist objectives of the Act. And they are probably more than offset in the aggregate by the Act’s upward retail pricing pressure in other markets.

That, in any event, was the conclusion of an influential 319-page report issued by the Department of Justice in 1977. DOJ placed the Act squarely in its historical context. As it observed, “the Robinson-Patman Act is a piece of depression-era legislation” and resembled the National Industrial Recovery Act, which sought to boost employment by eliminating cut-throat competition and stabilizing prices at inflated levels. DOJ’s report concluded that Robinson-Patman likewise served in many markets to raise consumer prices. DOJ also compared the Act to the Nixon Administration’s then-recent experiment with wage and price controls, noting that “government tampering with the market can lead to unforeseen results which have an adverse effect on workers, businesses, and the consuming public.”

DOJ’s 1977 report was hardly the first comprehensive critique of the Robinson-Patman Act, but it crystallized widespread opposition to the Act in antitrust circles, and the results were immediate and striking. DOJ stopped enforcing the Act altogether. The FTC, which had brought thousands of RPA claims in the 1960s and 1970s, followed suit shortly thereafter. Of course, non-enforcement by the federal government did not mean that the Act itself fell into complete disuse. But it did shift the burden of RPA enforcement to the private plaintiff’s bar, which lacks the federal government’s powers of pre-litigation discovery.

But here’s the breaking news: the federal enforcers have put on their cleats and want back in the game. Lina Khan’s FTC brought two high-profile Robinson-Patman cases towards the end of the Biden administration, and one of them remains alive and kicking with no end in sight. And earlier this year, six Republican Senators publicly urged both the FTC and DOJ to bring more Robinson-Patman cases to support the interests of various business constituencies.

This is unsurprising. Populists on both the right and the left view Robinson-Patman litigation as an important weapon in the fight against what they perceive as excessive market concentration. And when push comes to shove, they are willing to ban price discrimination to prop up small businesses even if doing so harms consumers.

This makes sense as a purely political matter because the resulting consumer harms are more diffuse and obscure than the benefits to small businesses. The constituencies that support aggressive RPA enforcement can realistically hope for reduced competitive pressure and wider profit margins. In contrast, consumers are very unlikely to connect downstream price hikes with an uptick in RPA enforcement and are thus unlikely to pin political blame on the RPA’s champions.

To be sure, this is a ham-fisted way to help Main Street. Even if one believes that the government should support small retailers to preserve their perceived value to local communities, there are more efficient and consumer-friendly means to that end, ranging from tax credits to small-business loans. Nonetheless, the RPA remains the law and says what it says, and enforcers have taken a new shine to it.

* * *

For many years as an antitrust lawyer, I hoped to get away with learning very little about the Robinson-Patman Act. After all, DOJ and the FTC had soured on the RPA and stopped enforcing it. Why should I have to learn the arcane details of this benighted statute?

Alas, as with so much else in antitrust, everything old is cool again. The Robinson-Patman Act is badly drafted, byzantine in its application, and at odds with the consumer-oriented thrust of America’s antitrust laws. But if you’re an antitrust lawyer, you’d better bone up on the doctrinal details because federal RPA enforcers are back in the saddle.