It takes some ingenuity to turn a dispute over White House press credentials into an antitrust investigation. The Trump Justice Department has managed it. ABC, CBS, CNN, NBC, and Fox News are under investigation for possibly violating the Sherman Act because, for four days in September, they suspended the shared television pool that covers the president.

The facts are simple. On September 18, the White House barred CNN, MS NOW, and Politico from its grounds. When the administration then kept CNN from its scheduled pool assignment, the five networks that share pool duty stopped providing the joint feed. They did not stop covering the president; each continued to report on him, and smaller outlets supplied some footage. A federal judge temporarily blocked the ban on September 24. The pool resumed the next day, once the White House approved CNN’s credentials for its turn in the rotation.

The suspension had a cost: there was no pooled video of President Trump’s meeting with Xi Jinping. And the Justice Department, which sent the networks letters last week requesting their internal communications about pool decisions, has stated its theory. “Group boycotts among commercial competitors can violate the Sherman Act,” said spokeswoman Emily Covington, who added that the networks had “proudly” boycotted.

Group boycotts can violate the Sherman Act. The question is whether this one did.

The Sherman Act prohibits agreements among competitors that unreasonably restrain trade. Price-fixing, market allocation, and certain concerted refusals to deal are the familiar examples. The law does not forbid competitors from agreeing about anything at all, and it does not license the government to investigate every collective act that displeases the president.

The department’s best precedent is FTC v. Superior Court Trial Lawyers Association (1990). Criminal defense lawyers in Washington refused to accept new court appointments until the District raised their fees. They called it political protest. The Supreme Court called it horizontal price-fixing and applied the per se rule, which meant the government did not have to prove the lawyers had market power or that competition actually suffered. It also rejected their First Amendment defense.

This is the networks’ real problem, and it should be faced squarely. Competitors jointly withheld a service, and less pooled coverage of the president resulted. If Trial Lawyers governs, asking the government to identify a competitive injury is beside the point, because the per se rule presumes one.

The objection lands closer to home than that. To reject the market-power requirement, the Court relied on my father. It cited The Antitrust Paradox for the warning that letting small conspirators prove they lacked power would drag market definition into every price-fixing case. He was right, and I do not retreat from it. But his argument was about cartels that fix prices, where the agreement itself reveals what the parties are after. It says nothing about competitors who pause a joint service without touching price.

It does not govern, for two reasons.

The first is that this was not price-fixing. In a footnote, the Trial Lawyers majority stressed that the case involved horizontal price-fixing, not merely a boycott, and acknowledged that some arrangements labeled “group boycotts” may not merit per se condemnation. The boycotts it set aside were nonprice restraints. The networks’ suspension is one. They sought no higher advertising rates, no division of viewers and no exclusion of a rival. They were objecting to the exclusion of a rival.

Their purpose matters for the constitutional question too. The same opinion turned away the lawyers’ First Amendment defense by distinguishing NAACP v. Claiborne Hardware Co. (1982), in which the Court protected a boycott of white merchants in Port Gibson, Mississippi, by Black residents seeking equal treatment. As Trial Lawyers described them, those boycotters sought nothing for themselves; the lawyers sought higher pay. The networks sit on the Claiborne side of that line.

The second is what was suspended. The pool is itself an agreement among competitors: rivals splitting the cost of a camera crew and sharing the footage. Arrangements like that, which make a product possible rather than suppress one, are judged under the rule of reason, as the Court held of blanket music licenses in Broadcast Music v. CBS (1979). A decision by venture partners about when to operate their venture is not a naked restraint. Under the rule of reason, the government must show actual harm to competition. Here the networks kept covering the president individually, other outlets filled gaps, and the interruption lasted four days.

So, what was the competitive injury? Did the networks raise prices to advertisers or carve up viewers? Did their agreement give them power they could use against the public? The Justice Department has not said.

None of this makes the press exempt from antitrust law. Associated Press v. United States (1945) settled that, and fittingly it concerned a news-sharing cooperative whose members used it to shut out competitors. If these networks had fixed advertising rates or excluded rivals, being news organizations would not save them. But a pause in a shared service is not automatically an antitrust offense, and the Sherman Act does not oblige a broadcaster to cover an event because the government thinks the public should see it. When the subject is a collective protest over press access, Claiborne counsels more caution from investigators, not less.

My father spent much of his professional life arguing that antitrust laws should protect competition and consumer welfare, not particular competitors, or unrelated political goals. He distrusted every attempt to make it an instrument for whatever social or political ends happened to be fashionable. Conservatives have spent years making that complaint about progressive enforcers, often correctly. It applies just as much to a Republican Justice Department. We ought to mean it.

The temptation is not new. In 1971, Richard Nixon was recorded telling an aide that the threat of antitrust action was the best way to keep the networks in line, and his Justice Department sued them the next year. Bruce Brown of the Reporters Committee for Freedom of the Press calls this probe a likely pretext for obtaining the networks’ internal records. Whether that is its purpose remains to be shown. But when no competitive injury has been articulated, the question is hard to avoid.

Perhaps the networks were being self-important. Television executives are not invariably models of judgment, and it would hardly be the first time journalists mistook a quarrel with a president for a historic defense of freedom. None of that makes it an antitrust violation.

President Trump has not suffered from a shortage of television exposure. A president who objects to the networks is free to denounce their coverage, refuse their interviews or deliver another long discourse on the failings of the American press, confident that someone will broadcast it. What he should not expect is an antitrust investigation every time they decline to play along. One can almost imagine the indictment: The defendants, acting in concert and with malice aforethought, deprived the president of the shared camera feed to which he had become accustomed.

If the Antitrust Division has evidence of a genuine restraint on competition, it should produce it. Otherwise, its lawyers have better things to do than referee a schoolyard quarrel over who gets to play with the cameras.

California has decided that one Sherman Act is not enough.

On September 30, Gov. Gavin Newsom signed AB 1776, the COMPETE Act, the most significant change to California antitrust law in decades. Beginning January 1, California will have its own prohibition on monopolization and monopsonization. The Cartwright Act has generally required an agreement between two or more parties, so a single dominant firm accused of monopolistic conduct usually had to be pursued under Section 2 of the federal Sherman Act. The new law closes that gap.

Attorney General Rob Bonta calls the law an important new tool against anticompetitive conduct by a single firm, and in principle I have no quarrel with that. Federal law has prohibited monopolization since 1890, and the consumer welfare standard has never given monopolists license to destroy competition. The hard question is which conduct by a successful company the law should forbid, and on that question California is striking out on its own.

Federal courts have spent more than a century trying to tell apart firms that win monopoly power by competing well from those that acquire or preserve it by suppressing competition. It may be the hardest problem in antitrust, because the two often look alike. A company invents a better product and its competitors lose customers. A retailer cuts prices and weaker stores close. A technology company integrates two products, and the businesses that supplied one of them disappear. A manufacturer reaches economies of scale its smaller rivals cannot match. In each case competitors have plainly been hurt, and in each case competition may have worked exactly as it should.

That distinction was at the center of the antitrust revolution associated with my father, Robert Bork: the law protects competition, not competitors. Competition makes businesses fight for customers, and it promises none of them a place in the market.

The final COMPETE Act recognizes much of this and is considerably more restrained than earlier versions. The Legislature dropped the proposed private right of action. Only the attorney general and district attorneys can enforce the new provisions, so there will be no treble-damage suits under them. The law requires proof of “substantial market power.” It no longer contains earlier provisions aimed directly at federal rules on predatory pricing, refusals to deal and multi-sided platforms. And it expressly recognizes that a firm may lawfully obtain and maintain market power through superior products, services or business acumen. Critics of the law, myself included, should acknowledge these improvements.

They also make what remains more interesting.

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In the live-music business, Ticketmaster has become the anti-hero. As Taylor Swift might put it, “It’s me, hi”—the villain everyone expects to find whenever concert tickets are expensive, scarce or difficult to buy.

The company’s reputation is certainly not helped by the experience of watching a reasonably priced ticket swell during checkout, spending an evening trapped in an online queue, or discovering that hundreds of tickets to a supposedly sold-out show have appeared on resale sites at three times face value. There is plenty of bad blood between Ticketmaster and its customers.

Consumer frustration, however, is not an antitrust violation. Neither is corporate size, vertical integration or an irritating service fee. That distinction is in danger of disappearing as a coalition of state attorneys general seeks damages and potentially the separation of Live Nation from Ticketmaster.

The case began in 2024, when the Justice Department, dozens of states and the District of Columbia accused Live Nation of controlling too much of the live-entertainment business, from concert promotion and amphitheaters to artist relationships and primary ticketing. The government depicted the company as a mastermind operating a self-reinforcing monopoly machine in which control of one part of the concert business produced dominance in every other part.

Before trial, U.S. District Judge Arun Subramanian found a considerable blank space in some of the government’s case. He rejected several proposed markets, excluded portions of the government’s expert testimony and dismissed some claims. What survived centered on Ticketmaster’s position in primary ticketing for major concert venues, Live Nation’s control of large amphitheaters, and allegations that artists seeking to use those amphitheaters were effectively required to buy Live Nation’s promotion services.

Shortly after the trial began in March 2026, the Trump Justice Department announced a proposed consent decree with Live Nation. It is not yet a final judgment; it remains subject to court approval under the Tunney Act, although Live Nation is already bound by its terms under an interim stipulation.

The proposed decree would require Ticketmaster to create technology allowing major venues using its back-end system to distribute primary tickets through competing marketplaces. It would limit fully exclusive ticketing contracts to four years, require Ticketmaster to offer nonexclusive alternatives, prohibit retaliation and content steering, open Live Nation amphitheaters to competing promoters, and cap Ticketmaster service fees at 15 percent for tickets sold at those amphitheaters. It would also terminate Ticketmaster’s agreement with Oak View Group, impose information firewalls, authorize extensive monitoring, and require Live Nation to terminate or modify arrangements that give it control over 13 large amphitheaters designated as Divestiture Venues. The decree would last eight years and permit penalties of $5 million for each violation involving a major concert venue.

That is not a getaway car. It is substantial relief aimed at the conduct the government said obstructed competition. But it is important not to romanticize how the agreement came about.

The Wall Street Journal has reported that President Trump personally directed a senior Justice Department official to settle the case after White House meetings involving Live Nation. The report also described the involvement of lawyers and political figures close to the president. Those allegations have not been adjudicated, but they deserve scrutiny. They prevent defenders of the company from treating the proposed decree as conclusive proof that career antitrust officials independently decided a breakup was unnecessary.

The political provenance of a settlement does not answer the economic question, however. A remedy can emerge from an irregular process and still be better for consumers than the alternatives. The court must decide whether the decree restores competition, and the states must explain what additional consumer benefit would come from dismantling the company.

More than 30 state and district plaintiffs continued the trial after the Justice Department withdrew. On April 15, a unanimous jury found Live Nation and Ticketmaster liable on every federal and state claim submitted to it. The jury concluded that Ticketmaster had unlawfully maintained monopoly power in primary ticketing at major concert venues, that Live Nation had monopolized the use of large amphitheaters, and that it had unlawfully tied access to those venues to its promotion services. It also found that qualifying consumers in 22 states had been overcharged by $1.72 for each covered primary concert ticket.

Live Nation has asked Judge Subramanian to set aside the verdict or grant a new trial, and it has challenged the expert analysis behind the damages award. If those motions fail, the company has said it will appeal. The separate proceeding on damages and equitable relief, including any structural remedy, is expected to extend into 2027. No breakup has been ordered.

The states may be tempted to say, “Look What You Made Me Do.” Yet a liability verdict does not automatically establish that divestiture is the proper remedy. Before separating companies the federal government allowed to merge 16 years ago, the court should ask what a breakup would accomplish that the proposed conduct restrictions would not.

It is not enough to demonstrate that Live Nation is large or that Ticketmaster has a high share of primary ticketing at major venues. The Sherman Act does not prohibit monopoly in the colloquial sense. It prohibits obtaining or maintaining monopoly power through exclusionary conduct. The remedy should stop that conduct and restore competition without sacrificing efficiencies that benefit consumers.

Live Nation’s vertically integrated structure should not itself be presumed unlawful. Concert promotion, venue management and ticketing are complementary businesses. Combining them can lower coordination costs, spread the considerable risks of concert promotion, finance tours, support investment in ticketing technology and make national and international tours easier to organize. The government must distinguish those efficiencies from genuine exclusion rather than assume that every advantage produced by integration is unfair.

Consider Ticketmaster’s exclusive contracts with venues. To an ordinary consumer, “exclusive” sounds sinister. But venues generally prefer one integrated ticketing and box-office system. They solicit bids and select one provider, much as a retailer chooses a single point-of-sale system. Ticketing companies compete through technology, customer support, upfront payments and divisions of service-fee revenue. Competition for an exclusive contract is still competition, and exclusivity can force bidders to make their best offers. Judge Subramanian himself recognized that exclusive agreements can produce substantial procompetitive benefits.

The case has also been distorted by the folklore surrounding ticket prices. Artists and their representatives generally set or approve face prices and decide whether to use tools such as dynamic pricing. Venues frequently receive a substantial portion of ticketing fees. Ticketmaster is visible at the moment of purchase, so it absorbs anger for decisions made throughout the concert business.

Enormous demand for a limited number of seats also creates scarcity that no antitrust decree can eliminate. Separating Ticketmaster from Live Nation will not create another 50,000 seats for a Taylor Swift concert. Even in the states’ wildest dreams, a federal judge cannot repeal supply and demand.

The jury’s damages finding illustrates the difference between popular anger and proven antitrust injury. Consumers may encounter service charges of $20, $30 or more, but the jury attributed $1.72 per covered ticket to the unlawful conduct. That amount can become substantial when multiplied across millions of transactions and then trebled. It does not establish that Ticketmaster’s monopoly explains the entire cost of attending a concert, and it applies only to a defined group of purchases in 22 states, not to every ticket Ticketmaster sold.

Live Nation cannot simply shake off the evidence against it. The 2010 merger decree prohibited retaliation against venues choosing competing ticketing services, and the Justice Department strengthened that decree in 2020 after alleging repeated violations. A unanimous jury has now found exclusionary conduct after hearing weeks of evidence. Any credible defense must acknowledge those facts.

An injunction and a breakup remain very different things. Targeted relief can prohibit retaliation, coercive tying and unnecessarily restrictive contracts while preserving the efficiencies of Live Nation’s integrated business. The proposed federal decree attempts to do that. Its terms, rather than the politics surrounding its negotiation, should be measured against the consumer welfare standard.

The states’ victory entitles them to relief, but not necessarily to the most dramatic relief imaginable. Antitrust remedies should restore competition, not reward prosecutors or redesign an industry according to an idealized structure. A court considering divestiture should require evidence that separation will improve prices, output, innovation or service quality. It should also weigh the risk that dismantling the company will increase costs, disrupt tours, reduce investment and leave fans facing the same scarcity and resale problems under different corporate logos.

Breakup advocates have been vague about their end game. Would an independent Ticketmaster stop charging fees? Would artists lower their prices? Would venues surrender their portion of the charges? Would brokers abandon the resale market? Would competing platforms manage enormous on-sales more effectively? The verdict does not answer those questions, and neither does the public’s well-earned dislike of Ticketmaster.

Live Nation may have crossed legal lines, and substantial relief is warranted unless the verdict is overturned. But the law still requires a remedy connected to the competitive harm that was proved. A breakup could become a cruel summer for the company while doing little for concertgoers.

Live Nation may deserve an injunction. It has not yet been shown to deserve dismemberment. Before the states pursue their wildest dreams of breaking it apart, they should prove that their remedy, and not merely their verdict, will leave consumers better off.

California and eleven other states have settled their antitrust challenge to Paramount Skydance’s acquisition of Warner Bros. Discovery. On September 30, U.S. District Judge Araceli Martínez-Olguín approved the consent decree without adding conditions. The companies expect to close the roughly $110 billion transaction, including debt, on October 6. The settlement shows plainly what state antitrust enforcement is turning into.

Under the decree, the merged company must release at least 30 theatrical films in each of the first two years and 32 in each of the next three. Each year’s slate must include at least four independent films, and at least 20 percent of releases must have budgets of $50 million or more. Paramount must spend $300 million more each year on domestic production than it spent in 2025, at least $1.5 billion over five years. It must also put $5 million a year into a fund to acquire independent films.

If the company misses the annual quota, it gets six months to make up the shortfall. It owes $30 million for every missing picture either way. Half of that goes to Hollywood union health and retirement funds, $12 million goes to the Motion Picture & Television Fund, and $3 million goes to a National Association of Attorneys General fund for antitrust enforcement. If the shortfall isn’t cured, Paramount must sell its 49 percent stake in Miramax. The decree also requires $9.5 million a year for workforce training, career development, film programs and community arts organizations. It bars the sale of either studio lot, and it binds the company to honor existing collective-bargaining agreements and bargain in good faith with entertainment unions.

The decree reaches cable and news as well. For five years, the company must negotiate carriage for the legacy Paramount and Warner basic cable channels separately, with information firewalls between them. A News Editorial Independence Board of five journalists, appointed by the company’s board, will set editorial principles for CBS News and CNN. A monitoring trustee, an internal compliance monitor and a committee of up to five plaintiff states will oversee the rest.

The judge’s approval makes all of this enforceable. It does not tell us what most of it has to do with protecting competition and consumers.

Some provisions do connect to the states’ complaint. Separate cable negotiations and firewalls respond to the allegation that the combined company would have too much leverage in licensing basic cable channels. A release minimum responds, at least on its face, to the claim that combining two studios would reduce theatrical output. These are behavioral remedies rather than structural ones, and they may prove cumbersome, but antitrust lawyers would recognize them.

The other terms are harder to defend that way. Domestic production spending, payments to an industry charity, union benefits, job training, arts grants, studio-lot guarantees and a court-ordered editorial board do not preserve competition in any economically defined market. They advance state economic, labor and media policy. Whatever their merits, those decisions ordinarily belong to legislatures, not to attorneys general bargaining over permission to close a merger.

That is the fifty-state antitrust paradox. State attorneys general can correct federal mistakes and vindicate real local injuries. But a handful of states can also use the threat of delay to write rules for an entire industry, steer benefits to favored constituencies and impose their preferences on consumers in other states. Until now that was mostly a theoretical worry. Paramount has turned it into an enforceable federal consent decree.

Corporate antitrust lawyers used to work from a simple map. When national companies merged, the Federal Trade Commission or the Justice Department made the decision that mattered. State attorneys general might join the investigation, contribute local knowledge, seek damages for their residents or press for extra terms. Washington led and the states mostly followed.

That map no longer works. Recent legal commentary has carried headlines like “State Antitrust Enforcement Enters a New Era” and “The State Antitrust Risk You Are Not Pricing Into Your Deal.” State attorneys general have built up the staff, money, information and procedural tools to run their own antitrust policy. They increasingly use them even after federal regulators have settled a case or cleared a deal.

The result is an open argument over who makes national competition policy. Colorado Attorney General Phil Weiser describes state enforcement as a necessary check when Washington is unwilling, mistaken or politically compromised. Associate Attorney General Stanley Woodward answered him two days later in a Fordham speech titled “Antitrust Federalism.” Woodward does not deny that states have a role. His argument is that Congress gave federal enforcers the lead when a transaction affects the whole country. He put it directly: “When a merger harms local markets, we want the states in the room. When it is national, we expect to lead.” The law needs to draw that line more clearly.

State antitrust authority is not new. States have long been able to sue under their own laws and, in some circumstances, under federal law. The Hart-Scott-Rodino Act of 1976 authorized state attorneys general to seek damages on behalf of residents. In 1990, the Supreme Court held unanimously in California v. American Stores that a state suing under Section 16 of the Clayton Act could seek divestiture. Federal clearance of a merger is not a judicial judgment and has never protected a transaction from a separate public or private challenge.

What has changed is the states’ ability to spot deals early, litigate on their own schedule and turn local priorities into national consequences. In 2022, the State Antitrust Enforcement Venue Act exempted federal antitrust cases brought by state attorneys general from multidistrict-litigation consolidation. Washington and Colorado have adopted a uniform premerger-notification law that gives their attorneys general copies of federal Hart-Scott-Rodino filings when a deal has enough connection to the state. California has passed its own version, which takes effect in 2027. These laws generally impose no second waiting period and require no state approval. They give state enforcers early notice, which they used to lack.

The states have also built the capacity to act on that notice. New Jersey created a dedicated Antitrust Litigation and Competition Enforcement Section. Oregon expanded its antitrust unit. State enforcers share expertise, hire outside counsel for hard cases and form coalitions that can match the federal government in litigation. A July 2026 Skadden review of the National Association of Attorneys General database counted seven state antitrust actions already filed that year, more than in either of the two preceding full years.

Paramount shows the new arrangement at full strength. The Justice Department spent eight months reviewing the acquisition and collected more than two million documents from more than 80 custodians. Under company waivers, state offices attended the department’s depositions and shared information with it. On June 12, the department issued an unusually detailed statement concluding that the merger was unlikely to harm consumers in streaming, linear television or theatrical distribution and would likely increase competition across the media industry.

A month later, California and eleven other states sued under Section 7 of the same Clayton Act. They alleged that the combined company would hold about 27 percent of wide-release theatrical distribution and of basic-cable licensing, and roughly 30 percent of a proposed market for anticipated blockbusters. The judge temporarily barred the deal from closing, and Paramount then agreed not to close while the case proceeded toward a March 2027 trial. Meanwhile, the merger agreement required Paramount to pay Warner shareholders a “ticking fee” of 25 cents per share per quarter once September 30 passed, roughly $7 million a day.

That clock gave the states enormous leverage. California officials also worried that Paramount might move production and jobs out of the state. In the resulting bargain, Paramount keeps its cable channels and completes the merger. California gets production spending and protection for its studio infrastructure. Unions and arts organizations get money. The state coalition gets five years of oversight, and the attorneys general get reimbursement of up to $40 million in legal and expert fees plus a share of any penalties to fund future enforcement.

Consumers may benefit from some of this. More films could mean more choice, and separate cable negotiations may keep the merged company from using all its channels as one bargaining bloc. But an output quota is a crude substitute for competition. It counts pictures without asking whether audiences want them, whether they make economic sense, or whether new distributors and production technologies are making the old studio model less important. A commitment that looks sensible in 2026 may be obsolete well before the decree expires at the end of 2031.

The editorial board is further still from the economic injury the states pleaded. Protecting the independence of CNN and CBS News may be a legitimate public concern. But the board exists only because state prosecutors wrote it into a court order governing two national news organizations. Colorado and Washington, both plaintiffs, declined to sign on to those terms. Antitrust law gives no one a general commission to supervise political balance, journalistic objectivity or newsroom management. And a government-negotiated board meant to protect editorial independence invites an awkward question: independence from whom?

The penalty provision is circular. A company accused of threatening competition must pay $3 million per missing film into a fund that helps attorneys general bring more antitrust cases. The rest goes to union benefit plans and an industry charity. The penalty may encourage compliance, but where the money goes shows that the settlement serves institutional and local interests alongside whatever it does for moviegoers.

Iowa and Montana have asked the Supreme Court for permission to sue the twelve plaintiff states directly. They argue that a minority of states effectively vetoed a transaction that the United States, the other thirty-eight states and regulators abroad declined to challenge. The settlement has probably made that original-jurisdiction action moot. California itself told the Court that once the decree took effect, Iowa and Montana would have everything they asked for. But the filing still matters. It shows that state antitrust enforcement has become powerful enough to set states against one another over who speaks for consumers nationwide.

Woodward’s speech lays out the legal structure underneath that dispute. Section 15 of the Clayton Act lets the United States seek an injunction without proving injury to itself, because it represents the national public interest. States seeking federal injunctive relief proceed under Section 16 and, like private plaintiffs, must show threatened injury to their own interests. In 1914, Congress considered and rejected a proposal to let state attorneys general enforce federal antitrust law in the name of the United States. The Hart-Scott-Rodino Act later gave premerger notice and a preclosing review period to two federal agencies, not fifty state offices.

These distinctions do not strip states of concurrent authority. They show that Congress assigned different roles to different sovereigns. A state represents the interests of its own citizens. The United States has to weigh costs and benefits for the whole country, especially when a transaction’s effects fall unevenly. Woodward goes back to the Articles of Confederation to make the point: the federal commerce power was partly the Framers’ answer to states pursuing conflicting economic policies at one another’s expense. Letting one coalition decide the fate of an indivisible national transaction brings back that coordination problem.

Nobody should treat a Justice Department clearance as a papal bull. Federal agencies make mistakes, bend to politics and sometimes settle too cheaply. States must remain free to challenge a deal when they can prove competitive injury. But state plaintiffs should not act as though a contrary national investigation never happened. The Paramount states had access to much of the same record and invoked the same federal statute. The settlement points to no economic error in the federal analysis. It replaces adjudication with a five-year regulatory program whose benefits go mainly to California and the enforcing states.

Live Nation is a useful counterexample. The Justice Department, joined by a large coalition of states, accused Live Nation and Ticketmaster of monopolizing parts of the live-entertainment business. A week into trial, the department settled. Thirty-three states and the District of Columbia refused to go along and kept litigating. In April, a jury found Live Nation and Ticketmaster liable on the states’ claims. Whatever remedy the court adopts, the verdict shows why independent state authority matters. A federal settlement is not the same thing as consumer protection, and states sometimes carry a sound case to judgment when Washington will not.

The consumer welfare standard supplies the discipline this requires. For nearly half a century it has tied antitrust enforcement to economic evidence and administrable rules. My father, Robert Bork, popularized it. It was never a demand for weak enforcement. It asked enforcers to protect competition and consumers rather than favored competitors or political constituencies. Antitrust should not be used to preserve a preferred number of jobs, set an annual movie slate, fund local programs or police speech unless those measures directly remedy proven harm to competition.

The political danger runs in both directions. Democratic attorneys general may use antitrust to pursue media, technology or labor goals. Republican attorneys general have sued asset managers, claiming their climate-related coordination reduced coal output and raised energy prices. Either theory might describe real competitive harm. Neither deserves a presumption of validity because its politics are congenial. Prices, output, quality, innovation and consumer choice should decide cases, not the defendant’s identity or who is applauding from the sidelines.

State enforcement should stay. What it needs is a clear line between local competitive injury and national policymaking, and more discipline when state action has nationwide effects. States that challenge a merger after a reasoned federal clearance should publish their economic case: the relevant market, the injury to their residents, what the federal analysis missed and why a nationwide remedy is needed. A federal conclusion should not confer immunity, but courts should give a fully explained federal determination appropriate weight. Time-sensitive mergers need prompt review, and judges should weigh the actual cost of delay when setting schedules, bonds and interim relief.

The same method shows up outside antitrust, which is why the legal theory matters less than the technique. In August, 51 attorneys general, Republicans and Democrats alike, settled consumer-protection and children’s-privacy claims against Meta for up to $17.1 billion and a nationwide code for minors on Facebook and Instagram. This was no minority veto; the coalition was nearly unanimous. But Meta’s payment rises from about $12.2 billion to the full amount only if TikTok, YouTube and Snapchat accept comparable terms. That makes one consent decree a template for an industry standard no legislature enacted. It also has a competition cost. Meta can absorb a dense compliance regime that a smaller challenger might not, so a settlement meant to discipline the dominant firm can end up protecting it.

Settlements need discipline too. Every provision should be tied to the competitive injury alleged, with an explanation of how it protects consumers. Settlement money should not finance the offices that negotiated it. When an attorney general starts writing detailed prospective rules for an entire industry, the legislature should take over. Rules of general application belong in statutes and regulations, not in consent decrees negotiated under multibillion-dollar pressure.

Congress may eventually need to draw a brighter line. Woodward notes proposals to assign large national transactions exclusively to federal enforcers and local ones to the states. Judge Richard Posner went further and argued for curtailing state antitrust authority in favor of a single national enforcer. That may go too far. But after Paramount, it is hard to keep assuming that more enforcers always mean more protection. Sometimes they do. Sometimes they mean more politics, more delay and more economic regulation made through litigation.

State antitrust enforcement earns its keep when it catches federal mistakes and protects consumers from real competitive harm. It becomes dangerous when redundancy turns into multiplication and multiplication into a veto. The Paramount settlement does more than let a merger proceed. It sets movie quotas, directs domestic investment, sends money to favored institutions and puts two newsrooms under an oversight structure negotiated by state prosecutors. That is a great deal of policy to extract from Section 7 of the Clayton Act. Fifty enforcers can be a safeguard, but they should all answer to the same test: did the conduct harm competition and consumers, and does the remedy address that harm? A court order can make a consent decree binding. It cannot turn movie quotas, labor subsidies, arts grants and newsroom governance into consumer welfare.

California Attorney General Rob Bonta sued to stop Paramount Skydance’s $110 billion acquisition of Warner Bros. Discovery. Two months later, he agreed to let it proceed. The obvious question is who won. The answer is that both sides won, but they were no longer playing the same game. Paramount gets Warner Bros. without admitting that the merger violates the law. California gets five years of government direction over movie output, theatrical windows, domestic production, labor programs and newsroom governance. Paramount won the company. Bonta won the concessions. Antitrust lost its limiting principle.

The legal dispute began with an unusual disagreement among public enforcers. The Justice Department spent eight months investigating the acquisition. Several state attorneys general participated in that investigation, shared information with DOJ and attended depositions of company executives. After reviewing more than two million documents, the department concluded that the merger was unlikely to harm competition or consumers in streaming, linear television or the development, production and distribution of theatrical films.

The states were entitled to disagree. A month later, California and eleven others sued under Section 7 of the Clayton Act. They alleged that combining two major studios would reduce competition in wide-release and anticipated blockbuster movies and give the new company excessive bargaining power in licensing basic cable channels. The court entered a temporary restraining order. Paramount then agreed not to close while the litigation proceeded. Under the merger agreement, however, Paramount would owe Warner shareholders about $7 million for every day the transaction remained open after September 30. That clock gave Bonta considerable leverage.

The proposed consent decree converts that leverage into a remarkably detailed operating code for the new company. The merged studio must release at least 30 theatrical films in each of the first two years and 32 in each of the next three. Every annual slate must include at least four independent films, and 20 percent must be big-budget tentpoles. At least half must be produced or co-produced by the company. Qualifying films must remain exclusively in theaters for at least 45 days and off subscription streaming services for at least 90 days.

Missing the quota carries an extraordinary price: $30 million for every absent film, even if Paramount later cures the shortfall. Half goes to Hollywood labor health and retirement plans, 40 percent to the Motion Picture & Television Fund and 10 percent to a National Association of Attorneys General antitrust fund. Paramount then has six months to release the missing pictures. If it still falls short, it must divest Miramax.

Other provisions range well beyond the annual slate. Paramount must spend at least $300 million more each year on American productions than the two companies spent in 2025, an increase of at least $1.5 billion over five years. It must provide $47.5 million for workforce training, career development, educational film programs and community arts groups, plus $25 million for an independent-film acquisition fund. It must preserve both studio lots, honor existing collective-bargaining agreements and bargain in good faith with entertainment unions.

The decree even joins a campaign for new tax subsidies. If Congress enacts an uncapped federal film credit of at least 20 percent, the required domestic share of production rises. If California or New York then enacts an uncapped, stackable credit of at least 43 percent, the required share rises to 40 percent. Bonta says he will work with California legislators to uncap the state credit. A lawsuit brought under the Clayton Act has become part of an industrial-policy campaign financed by taxpayers.

Cable television receives more recognizable antitrust treatment. For five years, the legacy Paramount and Warner businesses must negotiate carriage agreements for their basic cable channels separately. Information firewalls will limit the use of one company’s confidential licensing information by the other, and the decree restricts tying the two channel portfolios together. An uncured material violation can require divestiture of BET, VH1, Comedy Central, Smithsonian, Destination America and Science. These provisions address the states’ allegation that the merged company could use its larger channel portfolio to extract higher prices from distributors.

News gets its own remedy. A five-member board of experienced journalists will oversee standards and editorial autonomy at CBS News and CNN. Paramount chooses the members, government officials may not approve them, and no more than two may belong to the same political party. The monitoring trustee is expressly barred from supervising news content. Those safeguards are sensible, but they underscore how strange the provision is. Two plaintiff states, Colorado and Washington, declined to join it. Nothing in an economically defined film or cable market gives state prosecutors a general commission to design the governance of national news organizations.

There are genuine antitrust remedies in this package. Separate cable negotiations, information firewalls and restrictions on theater terms respond directly to alleged bargaining leverage and higher prices. Film-output commitments, theatrical windows and access to studio libraries can at least be understood as efforts to prevent the reduction in output alleged in the complaint. The states also obtained serious enforcement machinery: an independent trustee, an internal compliance monitor, a five-state oversight committee and possible divestitures for future violations.

But the settlement’s central bargain is not structural. Bonta began by asking a court to preserve Paramount and Warner as independent competitors. He ended by allowing their combination and regulating the resulting company. There is no present divestiture of a major studio, streaming platform, cable portfolio or news network. Paramount admits no violation. The more candid description is that the company purchased regulatory certainty with a collection of behavioral commitments, while California traded its effort to stop the merger for an opportunity to govern it.

That makes the political pressure surrounding the settlement important. IATSE, the Directors Guild, Gov. Gavin Newsom, Los Angeles Mayor Karen Bass and eventually theater owners urged a quick resolution as the transaction remained frozen and production jobs appeared at risk. Bonta called Paramount’s possible departure from California blackmail. In the final bargain, Paramount gets the acquisition; California gets production spending and protection for its studio infrastructure; unions and community groups get money; and the attorneys general get five years of oversight and up to $40 million in reimbursed fees and costs.

The antitrust left was furious. Alvaro Bedoya of the American Economic Liberties Project accused billionaires of having “bribed, censored, and bullied their way to the top.” The Block the Merger coalition said Americans had been “trampled to benefit oligarch billionaires,” while Mark Ruffalo called the agreement a victory for Trump and his billionaire allies. Beneath the theatrical language was a valid point: the merger they wanted stopped will happen. More revealingly, opponents invoke billionaires, democracy, layoffs and journalism, while supporters point to jobs, union protections and local institutions. Those may be legitimate political concerns, but they provide no limiting principle for antitrust. Once a merger case becomes a negotiation over every consequence associated with a company, success means satisfying whichever constituencies reach the bargaining table.

So who won? Paramount won strategically. It will acquire Warner Bros. Discovery without an upfront structural sacrifice or an admission of wrongdoing. The company accepted substantial costs and restrictions, but evidently concluded that they were worth less than the transaction and the continuing cost of delay. Bonta won tactically and politically. He did not stop the merger he called illegal, but he extracted commitments the company would not otherwise have made and can present himself as the defender of Hollywood production, labor and theaters.

Consumers are the uncertain party. More films may mean more choice, separate cable negotiations may constrain bargaining power and theater protections may prevent some price increases. But an output quota is a poor substitute for competition. It counts pictures without asking whether audiences want them, whether they are economically viable or whether technology is changing the studio model. A commitment that appears sensible in 2026 may be obsolete well before the decree expires.

The consumer welfare standard would impose the discipline this settlement lacks. It does not require weak enforcement. It asks whether a transaction threatens competition and consumers, and whether the remedy addresses that threat. It does not authorize attorneys general to dictate an annual movie slate, promote tax credits, finance community programs or supervise national newsrooms merely because a merger gives them the leverage to demand those things.

Paramount got Warner Bros. Discovery. California got a five-year program for movies, labor, subsidies and newsrooms. Bonta won the press conference; Paramount won the merger; and antitrust lost its limiting principle.

When President Trump nominated Adam Candeub to lead the Justice Department’s Antitrust Division, it seemed like a win for conservative legal enforcement. Candeub has an impressive résumé and a serious intellectual pedigree. His Senate questionnaire records a career teaching law and serving at the Federal Communications Commission and the Commerce and Justice departments. He has written extensively about telecommunications, competition and the internet. His work reflects familiarity with Robert Bork, Milton Friedman, Frank Easterbrook and the law-and-economics tradition. He is not a novice who stumbled into antitrust through politics.

But a closer inspection of Candeub’s nomination should prompt more careful scrutiny from conservatives.

Candeub appears increasingly willing to loosen his standards when they obstruct the administration’s political objectives. He retains the vocabulary of consumer welfare, economic freedom and error costs, while admitting into antitrust a growing catalogue of noneconomic concerns—free speech, democratic resilience, children’s development, corporate ideology, and even human happiness.

Each of those concerns is important. None becomes an antitrust concern merely because a large company is involved.

In his chapter on the Federal Trade Commission for Project 2025, Candeub accurately describes my father’s contribution: placing consumer welfare at the heart of competition law. He also writes that the consumer-welfare standard “must guide FTC action.” So far, so good. But that sentence continues. In appropriate cases, he says, the standard “must be expanded” beyond price. He then discusses concentration’s effects on free speech, the marketplace of ideas, shareholder control, managerial accountability, democracy and children’s development. Elsewhere in the chapter, he suggests that social media’s tendency to make users unhappy may justify a more aggressive regulatory response.

Those qualifiers are a problem.

The consumer-welfare standard has never been confined to whether the price of a widget rises by a nickel. Properly understood, it encompasses output, quality, innovation and consumer choice, including nonprice harms when they result from injury to competition. But it is still a limiting principle. It requires the government to identify a relevant market, prove anticompetitive conduct, demonstrate injury to the competitive process and connect that injury to consumers.

Once “consumer welfare” is expanded to include every social consequence attributed to a powerful corporation, antitrust enforcement breaks free of all constraints. An enforcer can simply select the political concern of the moment and redescribe it as a competitive harm.

Candeub made the tension unusually clear in 2023 testimony before the Senate Judiciary Committee. He praised the economics-based consumer-welfare standard for limiting the damage caused by mistaken or overly broad enforcement. But he immediately contrasted that discipline with Big Tech’s alleged effects on democracy, free speech and children. Discussing the removal of Parler from major app stores and Amazon’s hosting service, he asked whether proposed antitrust legislation would produce a “freer country” and a “stronger democracy.”

The exclusion of a rival from indispensable distribution channels can present a legitimate antitrust issue. If dominant firms conspire or use monopoly power to suppress competition, the law supplies a remedy. But whether a platform treats conservative speech fairly is not, by itself, an antitrust question. The Antitrust Division should not become a national board of editorial appeals.

Candeub’s communications scholarship reinforces these concerns. In a 2020 Yale Journal of Law & Technology article, he described Section 230 as part of a “regulatory bargain”: government provides liability protection while dominant networks accept antidiscrimination duties and furnish public goods, including a platform for free speech. That theory is thoughtful and has deep roots in common-carriage law. It may provide a basis for legislation governing communications networks.

But common carriage and antitrust are not interchangeable. Common-carrier duties arise from a distinct body of law and normally require legislative authorization. Antitrust, by contrast, condemns agreements and conduct that damage competition. Combining the two invites the government to treat successful technology companies as public utilities and impose neutrality obligations without first proving an antitrust violation.

Candeub’s treatment of Frank Easterbrook’s error-cost framework is equally revealing.

Easterbrook warned that erroneous intervention can suppress efficient conduct for years, while monopoly profits ordinarily attract entry and innovation. Candeub acknowledges that logic, then changes the calculation: failure to intervene, he argues, may injure democratic accountability and free speech, making a more proactive approach appropriate.

This sounds cautious, but it removes the denominator from error-cost analysis. How is an antitrust court to measure injury to democratic deliberation? How should it balance political viewpoint, childhood well-being and consumer satisfaction against efficiency? These are questions on which reasonable citizens disagree and for which antitrust law possesses no special competence. Once they enter the calculus, enforcement turns on an official’s political judgment rather than administrable economic evidence.

There is an irony in Candeub’s reliance on Milton Friedman. He invokes Friedman to condemn managers who spend shareholder resources advancing their own social and political beliefs. That criticism may be justified. But Friedman’s deeper point was that market mechanisms, rather than political officials, should allocate private resources.

Using government enforcement to punish corporations for the wrong ideology would reproduce the very politicization Friedman opposed.

Conservatives understandably resent Silicon Valley’s censorship, ideological conformity and occasional cooperation with government. I share many of those concerns. But the answer to politically directed antitrust is not politically directed antitrust with a different enemies list. A progressive administration handed Candeub’s expanded theory could just as readily target companies for insufficient commitment to climate policy, organized labor, diversity or “democratic resilience.” Political antitrust does not remain conservative when political control changes hands.

The stakes are particularly high at the Justice Department. The Assistant Attorney General decides which mergers receive searching review, which companies face civil monopolization suits, and which executives confront criminal investigation. Even when the government eventually loses, an investigation can consume years, alter business strategy and impose enormous reputational and financial costs. A standard that permits the enforcer to consider a company’s politics creates both uncertainty and an invitation to seek political favor.

That is how “America First Antitrust” could become the conservative version of the Neo-Brandeisian project: different preferred constituencies, different disfavored corporations, but the same belief that antitrust officials should reorganize markets in pursuit of political ends. It is also how antitrust becomes an instrument of the conservative socialism I have criticized—government directing private enterprise according to political priorities rather than protecting the competitive process.

None of this proves that Candeub would misuse the office. His writings contain genuine caveats, respect for economic evidence and recognition of the risks of overenforcement. That distinguishes him from those who reject consumer welfare outright. His intellectual seriousness is real. The question is whether his limiting principles are.

The Senate should therefore ask him for commitments, not labels.

Will he challenge conduct only when the government can prove injury to competition and consumers under existing law?

Will he disavow viewpoint discrimination, corporate ideology and generalized effects on democracy as independent grounds for antitrust action?

Will he keep common-carrier regulation and Section 230 reform out of the Antitrust Division unless Congress supplies clear authority? And will he apply the same standards to politically friendly companies as to politically hostile ones?

If Candeub can answer yes, his experience and intellectual background could make him a formidable Antitrust Division leader. If he cannot, senators who believe in law and economics should oppose his confirmation. The issue is not whether Big Tech deserves sympathy. It is whether antitrust law still deserves a boundary.

“Here, as in so much of imperial history, commerce, colonization and brute corporate power walked in lock step,” Dalrymple writes. He quotes Tolstoy’s letter to Gandhi in which the novelist marveled that “a commercial company enslaved a nation comprising 200 million people.”

Dalrymple’s essay is colorful and engaging, but his comparison between the East India Company and America’s tech titans is strained—leading, not surprisingly, to the conclusion that more government control of Big Tech is needed. He makes the case that the U.S. government should crack “the whip hand” to humble these companies, just as the British government ultimately did when it nationalized the East India Company after its incompetence fueled the Indian Rebellion (“the Great Mutiny”) in 1857.

“Big Tech has, too, begun to take on the attributes of sovereign states, and in many ways is now as powerful as the East India Company at its height,” Dalrymple writes.

He points to Nvidia’s valuation of more than $5 trillion, “roughly the gross domestic product of Germany, the world’s third-largest economy, with a population of 84 million.” He enumerates the eye-popping valuations of Apple and Alphabet, and the growth of SpaceX’s share of all satellite launches from below 10 percent in 2014 to around three-quarters last year—all as evidence that Big Tech is dominated by rogue companies in need of humbling.

But stock valuations are far more volatile and ephemeral than a country’s GDP. And, unlike the East India Company, which enriched a slice of British elites, the wealth that today’s tech leaders generate enriches the portfolios of tens of millions of mom-and-pop investors and retirees around the world.

Dalrymple acknowledges that Nvidia and its peers have no standing armies or conquered territory. That is no small distinction. There are other significant differences. The East India Company was granted a royal charter in 1600, giving it trading rights across a vast quadrant of the Earth. It acquired armies, conquered territory, and governed hundreds of millions of people. It sold many things—indigo dye, silk, sugar, opium—but it was essentially an exploiter of human labor and other people’s land.

Nvidia did not arise from a royal charter issued by a mercantilist power. It emerged from a meeting between three young engineers at a Denny’s. Nvidia now dominates the upper end of AI chips, but it is not a monopoly. It is engaged in fierce competition with global leaders like AMD, Intel, Google, AWS, and others. It is true that SpaceX has close to a monopoly in heavy-lift launches – partly due to the failure of Boeing and other traditional contractors. But would the U.S. economy and national security be improved if SpaceX were broken up into several separate launch companies? The little SpaceXs might compete on price, but the economies of scale—and likely the competence—needed for this monumental enterprise would be lost.

Google does have a monopoly on search, but this is not the result of a modern version of a royal charter, either. It is simply a function of network effects—everyone uses Google because everyone uses Google.

And besides, who wants to be forced to navigate between 10 Googles?

As for the raw political power of Big Tech, it has not kept Meta from being forced into a recent settlement worth up to $17 billion with a coalition of dozens of state attorneys general. And as for the power of Big Tech donations, remember that Elon Musk and Musk-backed groups invested $30 million in support of a candidate for the Wisconsin Supreme Court—and lost.

If Dalrymple’s diagnosis is iffy, his prescriptions are troubling.

He seems to be pointing to China as a model of how a powerful state can humble “corporate kings.” He approvingly describes Chinese dictator Xi Jinping’s humiliation of Jack Ma, co-founder of Alibaba, for the crime of publicly complaining about heavy-handed regulation. The planned IPO of Ma’s Ant Group was canceled, and the company was then forcibly restructured. Dalrymple writes that Ma “largely disappeared from public life in China, resurfacing in February 2025 to shake Mr. Xi’s hand at a televised symposium of chastened entrepreneurs.”

On a gentler scale, something similar happened at Donald Trump’s second inaugural, when tech CEOs, intimidated by the president’s promised retribution, lined up to kiss the king’s ring.

Whether in China or in Trump’s America, the humbling of corporations by the state is not a recipe for broader economic growth or a stronger democracy. It is, as China is learning and America may soon learn, the path to crony capitalism, which makes us all poorer and less free.

My Wall Street Journal essay (8/28/26) on the Meta paradox—published under the headline “The Meta Settlement Makes Big Tech Bigger”—produced what one might expect from a discussion of children, social media, government and Mark Zuckerberg: a calm seminar conducted at the volume of a fire alarm.

One reader said I should never be allowed to sit “unsupervised behind a keyboard.” Another submitted the column to an AI detector and reported the verdict as though Pangram had just returned from Mount Sinai. Zuckerberg’s yacht made an appearance. So did broken glass, dirty needles and loaded guns. This is the comment section’s traditional warm-up before the argument begins.

But the argument did begin, and much of it was worthwhile. Several readers identified the point of the column more clearly than some of its critics did. “Government: ‘Big Tech is too powerful!’ Also government: ‘Here’s a mountain of regulations only Big Tech can afford,’” one wrote. Another compared the settlement to the tobacco agreement, which created a moat around the companies it was supposed to punish. A third noticed the privacy problem: to identify children reliably, Meta will have to know considerably more about everyone.

Those readers understood my argument. Others thought I was claiming that social media is harmless, Meta is innocent, parents are omnipotent and government should do nothing. I said none of those things. The disagreement is worth sorting out because it concerns more than one company. It is about how we make public policy, who gets to make it, and whether a government campaign against corporate power can wind up increasing that power.

What I argued—and what I did not

I do not doubt that some young people are harmed by social media. Anyone who has watched a teenager disappear into a screen can see the problem. Features built to hold attention can become compulsive. Bullying, sexual exploitation, eating-disorder content and relentless social comparison are real dangers. The Surgeon General has said that social media presents a meaningful risk of harm while also providing benefits. The National Academies has been more careful about causation, concluding that effects vary greatly among users and that the evidence is often associational, reciprocal and difficult to disentangle. That uncertainty is not an excuse for indifference. It is a reason to demand policies that can be measured.

Nor did I argue that every term of the settlement is foolish. My Journal piece said explicitly that some provisions may be sound policy. Muting school-hour notifications, making parental controls easier to use, restricting cosmetic-surgery filters and offering a chronological feed all may help. A useful feature, however, does not redeem a defective governing structure. The question is not whether one can find a good idea somewhere in a 122-page agreement. The question is whether state attorneys general, bargaining behind closed doors with the dominant firm, should write an operating code for an entire communications industry.

That distinction disappeared in some of the replies. One reader said my argument was merely an “excuse for doing nothing.” Another said the settlement may be imperfect but is “better than nothing.” That is the favorite defense of bad policy because it places every burden on the critic. Yet the alternatives are not this settlement or anarchy. Legislatures can enact prospective, generally applicable rules. Regulators can enforce laws against deception, privacy violations and unlawful conduct. Courts can adjudicate claims by people who can prove injury and causation. Parents can use controls, and companies can be required to make those controls intelligible. Competition can reward services that offer families safer products. There is quite a lot between 122 pages negotiated with Meta and nothing.

Parents are neither omnipotent nor irrelevant

The most serious criticism concerned parents. Several readers said modern technology has moved beyond parental control. The platforms are sophisticated, the children know the devices better than their parents, and the products are designed to overcome self-restraint. One compared Instagram to a loaded gun. Another compared parental choice to letting children play in a park strewn with broken glass and dirty needles.

Those analogies express understandable alarm, but they assume the conclusion. Social media is not a gun, and a communications platform is not a public playground that a parent cannot alter. Instagram can expose a child to genuine risks while also providing friendship, entertainment, information and creative opportunity. The risks vary by child, content, duration and circumstance. That is precisely why parents, who know the child, cannot be written out of the equation.

They also are not written out of the settlement. Its most important restrictions are defaults that a supervising parent may relax. A parent can approve more than two hours of use, modify nighttime limits and change protective settings. The regime therefore rests on an awkward premise: parents are too powerless to govern their children’s use, yet sufficiently competent to authenticate themselves, link accounts, understand the options and decide when to override them. If parental judgment is hopeless, the settlement’s own machinery is hopeless with it.

The better answer is shared responsibility. Meta should not deceive families, conceal material risks or design features that create unreasonable hazards. Government has a legitimate role in enforcing those duties. Parents still decide whether a child gets a smartphone, which apps may be installed, whether phones enter bedrooms and what happens when rules are evaded. Saying that parents retain the first responsibility is not anarchism. It is an acknowledgment that no auditor, attorney general or algorithm will ever know a child as well as his family does.

The tobacco comparison is in the agreement

Several readers compared the deal to the 1998 tobacco settlement. One critic called that analogy “specious” because society does not need new tobacco companies or new platforms that are even better at addicting children. That response does not refute the concern about entry barriers. It embraces them.

More important, the tobacco comparison is not rhetorical decoration. It is written into the settlement’s economic machinery. The agreement guarantees the states roughly $12.1 billion and makes about $5 billion more contingent on what it calls “Industry-Wide Adoption.” It names TikTok, YouTube and Snap as “Core Industry Members.” For the tighter restrictions and contingent payments to take effect, those rivals must come under substantially equivalent obligations. The agreement even defines a “New SMP Entrant”: a competing service with at least five million monthly American teen users and an average of 30 minutes of daily teen use. If such an entrant appears without joining the regime, the condition of industry-wide adoption can fail.

In other words, the states acquire a direct financial interest in extending Meta’s bargain to Meta’s current rivals and any successful future challenger. Meta also receives a most-favored-nation provision: if a state later gives a competitor more favorable treatment, Meta can demand comparable terms. This is not a theory about regulatory capture assembled by suspicious readers. It is the architecture of the agreement.

Perhaps some people would prefer a closed club of large social-media companies to open competition. But they should say so plainly and ask Congress to make that choice. Social media is not tobacco. It is a medium of speech, association, commerce and invention as well as a source of risk. A smaller competitor might be safer, less intrusive, easier for parents to understand or built around a different business model. A policy that makes such experimentation less likely should not be smuggled into national practice through a settlement with the incumbent.

The payment’s size does not answer this objection. Several readers noted that $17 billion over a decade is manageable for a company that earned about $61 billion last year. They are right—and that strengthens the paradox. A cost that Meta can absorb may still be forbidding to the firm that might challenge it. “Pocket change” for the incumbent can be a locked gate for the entrant.

The privacy paradox is worse in the fine print

One reader made an especially sharp point: to verify parental authority, Meta may need information identifying the parents, proving guardianship and linking adults to children. The actual agreement goes further. It permits ID verification and facial-age estimation. It directs Meta to analyze posts, comments and other account activity for evidence of age; review the friend networks of accounts removed as under 13; link accounts through “soft-matching” models; and use signals such as device identifiers, phone numbers and email addresses to find secondary accounts. Meta must develop a model for predicting which users are under 13 and use it to evaluate accounts across its platforms.

The agreement includes data-minimization, deletion and security requirements, and those safeguards matter. But it also permits Meta to retain certain under-13 data to develop and test the age model. The settling attorneys general expressly promise not to sue Meta under COPPA or analogous state law for maintaining or using a child’s information for that purpose, subject to the agreement’s limits.

That is the privacy paradox in black and white. Government accused Meta of collecting too much information about children. Its remedy requires more powerful identity inference, more account matching and more scrutiny of user behavior, then grants Meta a limited legal peace for retaining some of the resulting data. The intentions may be protective. The institutional capability being built is still one that civil libertarians should examine very carefully.

No jury “proved” the states’ case

Some comments confused settlement with adjudication. “All those states sued, and they won,” one reader wrote. Another said government had “proved legally” that Meta caused mental illness in children. A third portrayed the settlement as a jury award from neighbors telling injured families, “We hear you.”

That did not happen in this case. The parties settled during trial. There was no verdict on the states’ claims and no finding that Meta caused a general youth mental-health crisis. The agreement says expressly that it is for settlement purposes only and is not an admission of liability, wrongdoing or violation of law. Meta may have settled because it feared catastrophic exposure, damaging evidence, years of litigation or all three. A settlement price tells us about litigation risk. It does not convert disputed allegations into scientific or legal findings.

The same care is required when discussing the money. Readers who assumed that every dollar will vanish into unrestricted state budgets went too far. The agreement identifies youth mental-health services, crisis lines, after-school programs, digital literacy and related remediation as permitted uses, and some states have adopted tighter restrictions. At the same time, it allows broad state-specific discretion, payments into some general funds, reimbursement of litigation and enforcement costs, and other lawful uses. It is not a direct compensation program for the families whose stories drove public support for the case. The public should track where the money goes and what it accomplishes, not merely admire the number in the headline.

Section 230 did not create every problem

One reader offered a wonderfully Washington solution: blame one statutory provision for everything. Repeal Section 230, he argued, and capitalism will take its course. Section 230 generally prevents an online service from being treated as the publisher or speaker of content supplied by someone else. It does not immunize a company from every claim about its own conduct, promises or product design. Indeed, these lawsuits proceeded precisely because courts allowed important claims based on Meta’s own alleged design and business practices to continue.

Wholesale repeal would also reproduce the competitive problem at the center of my column. If every platform faced sweeping liability for millions of user posts, Meta could build another compliance fortress. A startup could not. Reform may be warranted, but “repeal it and let capitalism work” ignores what ruinous, open-ended liability does to entry.

What a better policy would look like

One reader asked, fairly, whether my job was only to identify flaws or whether I had a better solution. Here is the beginning of one. Congress—or state legislatures acting through ordinary law—should establish clear, prospective and platform-neutral rules for services used by minors. Age assurance should disclose the minimum necessary information, preferably an age-band signal from a device or app store rather than identity documents collected anew by every platform. Parents should receive simple controls and retain the ability to impose stricter limits. Researchers should receive privacy-protected access to data so that causal claims and proposed remedies can be tested. Rules should contain measurable objectives, public reporting and sunset dates. Antitrust authorities should examine whether compliance costs or industry-wide settlements foreclose smaller competitors.

That program would not satisfy people who demand immediate punishment, and it would not please those who want government entirely absent. It would do something more useful: separate child protection from incumbent protection.

One of the best comments asked what happens if Meta complies fully and teenage depression, self-harm and bullying do not measurably improve. Will the states admit that other forces matter? Will they return the money? Of course not. The settlement does require an auditor to examine implementation and some measures of efficacy, but much of the underlying material will remain confidential, some recommendations are nonbinding, and Meta retains substantial discretion over design changes.

That makes independent public measurement essential. Over the next five and ten years, we should ask: Did the rules improve outcomes for children, or did usage simply migrate to other services? How many adults and minors were misclassified? How much additional personal information was collected or inferred? Where did the settlement money go? Did new competitors enter? Did Meta’s position strengthen? A policy sold as a historic victory should be able to survive a historical audit.

The children deserve protection. They also deserve a government capable of distinguishing protection from protectionism. Meta can survive $17 billion and 122 pages of obligations. The harder question is whether the next competitor can—and whether children will be any safer if it cannot.

That is the Meta paradox. The comment section did not refute it. In more than a few cases, it supplied the footnotes.

Sources

Meta multistate Settlement Agreement, Aug. 26, 2026: https://oag.dc.gov/sites/default/files/2026-08/Settlement%20Agreement%20FINAL%20-%20Fully%20Executed.pdf

National Academies of Sciences, Engineering, and Medicine, Social Media and Adolescent Health (2024): https://nap.nationalacademies.org/catalog/27396/social-media-and-adolescent-health

U.S. Surgeon General, Social Media and Youth Mental Health: https://www.hhs.gov/surgeongeneral/reports-and-publications/youth-mental-health/social-media/index.html

47 U.S.C. § 230: https://www.law.cornell.edu/uscode/text/47/230

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.

* * *

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.