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.

* * *

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.