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With former President Trump selecting Florida rep. Matt Gaetz (R-Fla.) and then former Florida attorney general Pam Bondi (R-Fla.) as his attorney general nominee, the press has been widely speculating on what antitrust policy will look like in his incoming administration.  Although antitrust policy typically does not attract much public attention, it has over the last four years because of how aggressively the Biden administration expanded it to implement its radical socialist worldview.

Biden antitrust officials rescinded the consumer welfare standard, a policy statement that once assured the public that the government would go after only companies that harmed consumers’ interests.  This gave them the unprecedented opportunity to challenge virtually any businesses it wanted, for any political or ideological reason it wished.  It frequently took that opportunity, setting new records for merger challenges.  The goal?  To punish companies that experienced “too much” success in the private marketplace in an attempt to bring so-called “perfectly competitive marketplaces” to the United States — that is, industries where all businesses have the exact same market share, with no standouts.  As if consumers having a preferred car brand, hotel chain, or phone-maker is a bad thing!

Based on who his advisers currently are and the proclamations he’s made on the campaign trail, most experts expect the incoming Trump administration to ease up on antitrust enforcement and let entrepreneurship and innovation thrive. 

I agree.  I believe that antitrust under President Trump will likely turn on three questions:

  1. Are my core political values implicated?
  2. Will an enforcement action help or hinder innovation?
  3. Is enforcement clearly within the powers of the Federal Trade Commission or Department of Justice?

One of the main principles of Trump’s first-term antitrust doctrine was that big isn’t bad unless that bigness became a tool to control what the administration perceived as fundamental American values.

A focus on core values — namely, speech — characterized how the first Trump administration prioritized its antitrust enforcement actions.  For instance, the administration’s suits against Google and Facebook reflected a perception that both exercised excessive control over the modern public sphere and exploited that control to promote progressive values.  Similarly situated companies should be on high alert.

Banks alleged to deplatform clients with conservative values will likely be the subject of antitrust investigations.  Similarly, corporations that unduly embrace Environmental, Social, and Governance (ESG) standards and Diversity, Inclusion, and Equity (DIE) programs should expect to receive regulatory scrutiny.  The thinking goes that such programs have little to do with underlying business imperatives and actively drive out employees who do not celebrate those same values.  A large business that intentionally steers clear of interfering with core values seems far less likely to come under the eye of the administration’s antitrust enforcers.

Big businesses that foster innovation will likely also dodge antitrust attention because the recently passed Republican Party Platform identified two guiding economic principles, the first of which is “championing innovation.”

This focus stands in contrast to the antitrust orientation under President Biden.  Consider, for example, the Biden administration’s recently filed suit against Visa.  Whereas Biden’s enforcers were inherently wary of companies with high market share percentages and perceived Visa’s expansive debit card network as a product of coercive and anti-competitive tactics, it seems likely that the Trump administration will instead focus on Visa successfully establishing and expanding a debit card network that allows small businesses and Average Joes to participate in entrepreneurial activity.  The upshot is that where innovation seems likely to flourish, the Trump administration will likely take a step back, especially when that innovation has proven to yield cost savings to consumers.

Although Trump’s emphasis on a broader set of values, such as individual liberty, suggests he will not return federal antitrust enforcers to adhering to the consumer welfare standard, his campaign and the Republican party’s platform have put savings at the center of his economic agenda.  Their focus on maximizing the economic returns of each American demonstrates how, when the administration believes that big companies can help little guys, its antitrust enforcers will take a back seat.

A desire to restore America’s manufacturing capacity illustrates this point.  Trump and his administrative personnel will likely reinforce — rather than question — the massive companies they believe create new jobs and opportunities in U.S. communities. 

Whether antitrust enforcement action would involve stretching the authority of the FTC or DOJ will likely be the deciding factor for companies that the administration deems to be on the cusp of the innovation divide.  If it would, the administration would likely deny the use of any additional enforcement resources. 

Aggrandizement of the Administrative State is not on the administration’s agenda.  The first chapter of the GOP’s platform identifies “cutting excessive regulations” as a commitment.  President Trump has consistently made an effort to realize that commitment by, for example, eliminating two regulations for every new one during his first term.  On the 2024 campaign trail, he pledged to cut even more regulations.

How these three antitrust tests will play out in the next Trump administration remains to be seen.  That said, the bottom line is that businesses and consumers can expect the administration to dial back antitrust enforcement on companies it perceives to be promoting innovation while dialing it up on corporations it believes to be threatening classical liberal values.  As such, corporations that turn market power into cultural influence should proceed with caution.

Jonathan Dever is a Cincinnati attorney and former member of the Ohio House of Representatives, where he served as chair of the Financial Institutions, Housing, and Urban Development Committee. 

<p><em><a href=Image: Gage Skidmore via Flickr (cropped).

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Image: Gage Skidmore via Flickr (cropped).