Four cases to test Trump’s antitrust strategy

President-elect Trump’s antitrust team of enforcers has now been named. There are few clues about their likely course of enforcement based solely on their resumes, all of which include bipartisan elements.

Current FTC Commissioner Andrew Ferguson will replace Lina Khan as chair of the FTC. Ferguson was Republican Senate Leader Mitch McConnell’s principal legal advisor but was put on the FTC by President Biden. 

The current head of the Antitrust Division at the Department of Justice, Jonathan Kanter, will be replaced by Gail Slater, a former advisor to Vice President-elect JD Vance and staff member of the National Economic Council in President Trump’s first term. Slater also served as an advisor to Julie Brill, a Democratic member of the FTC appointed by President Obama.

If these individuals’ resumes do not point to a change in antitrust direction, however, historic precedent does. Twenty-four years ago, the George W. Bush administration inherited from the Clinton administration the last major case against big tech: US v. Microsoft. The Bush team was alarmed by the harm to America’s high-tech competitiveness that would have followed from the Clinton team’s request to break up Microsoft.

Shortly after taking over, the Bush antitrust authorities withdrew the break-up demand, proposed conduct restrictions instead, and allowed Microsoft to continue to innovate as an integrated company. 

A similar change in approach may come in four cases supported by the Biden administration which target some of the nation’s most innovative and consumer focused companies: Google, Amazon, Apple and Meta (Facebook). 

The first is the Biden Justice Department's case claiming that Google monopolized the market for online search. It won at trial and has now asked the court to break up Google as a remedy — strikingly parallel to Clinton’s request to break up Microsoft 24 years earlier. This case had actually been brought in October 2020, in the waning weeks of the first Trump administration. Trump’s then-antitrust chief had disqualified himself from considering the case, and with other matters taking priority at the White House, it was hardly a flagship of the first Trump administration. Further, although Trump’s team brought the case, it was Biden’s team, four years later, that demanded the break-up of Google as a remedy. 

Second, the Biden Justice Department sued Apple, claiming it had impeded interoperability between Apple’s iPhone apps and other smart phone systems. That case is in the pre-trial stage. The Justice Department wants to order Apple to make its most valuable applications universally available, even to competitors. Once again, there is an obvious parallel to the Microsoft case, where, if Clinton’s Justice Department had had its way, the newly spun-off Windows’ app company would have made all its Windows’ apps available to Microsoft’s competitors. 

The third case is the Biden FTC's lawsuit against Amazon for requiring retailers to offer the lowest prices available anywhere if they sell on Amazon; and requiring retailers to use Amazon’s delivery and return services if they want favorable placement on Amazon’s website. In opposing the latter practice, the Biden team ignored how different parts of a single big tech company worked together to guarantee a better experience for the consumer.

The fourth case is the FTC’s lawsuit against Meta over Facebook’s acquisition of Instagram and What’s App. This was originally brought on a 3-to-2 vote of the FTC in 2020, with two of President Trump’s three appointees to the FTC at that time voting no. This happened eight and six years, respectively, after each acquisition had been approved by federal antitrust authorities. 

Not feeling any real ownership of these cases, the new Trump antitrust team can abstract from the minutiae of each case and apply some broader principles. For the first three, the applicable rule Trump’s team might follow is that government should generally not interfere with business success where consumers seem satisfied. 

Google offers the best search engine in the world, and the trial record is conspicuously devoid of consumer complaints. Apple has defended its interoperability rules as necessary to preserve the high quality of performance of the iPhone it created. Amazon requires its own delivery services to assure the reliability that has become synonymous with its brand. Consumer satisfaction is in the stratosphere.

In these three cases, however, the Biden administration followed a different standard, ignoring the genius of American innovation and the supremacy of the consumer. In the Biden era, any tech company big enough can be attacked for any practice that disadvantaged a competitor — even if consumers prefer the practice.

The FTC's case against Facebook (Meta) for acquiring Instagram and What’s App, however, will attract critical review by the Trump antitrust team for a different reason. The decision to challenge the mergers anew after they had been cleared years earlier signaled that corporate America can not rely on federal antitrust authorities. No acquisition could ever be considered final.

The Biden antitrust team may not have minded what that approach meant for long-term corporate planning, but Trump’s antitrust team cannot conclude that this is an efficient way for the government to interact with American industry.

Tom Campbell is an antitrust advisor to NetChoice, a trade association whose members include Google, Amazon and Meta. A former director of the FTC's Bureau of Competition during the Reagan administration, he served five terms in Congress representing Silicon Valley and as a member of the House Judiciary Committee's antitrust subcommittee.