Assessing the Impact of the Neo-Brandeisian Movement

In a new retrospective, the Chamber reviews the largely failed efforts of the Neo-Brandeisian movement to reshape antitrust law.

In recent years, the Neo-Brandeisians tried to rewrite federal antitrust law to import European concepts of “abuse of dominance” and created an Executive Order on Competition that called for a whole-of-government approach to control the economy.  They worked to transform the FTC into a mini-unelected legislature and challenged numerous mergers based on speculative theories. Outside of Washington, they attempted to persuade numerous states to rewrite their antitrust laws and promoted international efforts to target U.S. companies. According to one left-leaning, well-respected antitrust scholar, the Biden administration “did a lot of damage to my field, antitrust, in just 4 years” and “while some actions had a sound basis, the Biden administration's overall policy toward big tech ranks as one of the worst, most backward-looking, reactionary policy sets in my experience.”

While it’s true that the Biden Administration raised costs, injected uncertainty, wasted resources, and generally harmed American consumers and U.S. economic growth, to date, the Neo-Brandeisian effort to drive transformational change to antitrust has failed. Congress declined to rewrite the federal antitrust laws, a sweeping Executive Order produced few tangible results, and the courts invalidated the FTC’s most prominent rulemaking efforts and most of the FTC and DOJ’s aggressive merger theories. The consumer welfare standard survives, and the rule of reason was not replaced by bright-line rules. No state rewrote its antitrust laws and, while international competition officials continue to target U.S. companies, other countries have yet to embrace European ex-ante competition regulation.

Before the Neo-Brandeisian movement burst onto the scene, there had long been a debate about whether the antitrust laws were underenforced, or whether more stringent enforcement would create an undesirable chilling effect on procompetitive behavior. There is merit to both arguments. However, the Neo-Brandeisian movement isn’t merely a call for aggressive enforcement of the law, it’s a rejection of the law and its limitations. The movement seeks to reshape the law not simply to promote more vigorous competition, but to allow the government to manage outcomes in the economy.

Most important, policymakers should continue to resist the Neo-Brandeisian objectives to change the law and maintain an enforcement and policy course consistent with the law and evidence of harm to consumers, rather than competitors.

About the authors

Sean Heather

Sean Heather is Senior Vice President for International Regulatory Affairs and Antitrust.

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