Anti-consumer antitrust laws have gone too far

In recent years, the Biden administration has made it a priority to attack the products and services Americans use and value most, pushing a politically motivated antitrust agenda in which volume is always a bad thing, regardless of consumer preferences. Nowhere is this more evident than in technology, which has become their primary target, suing companies widely used by Americans such as Amazon, Meta and Google, claiming they are simply “too big.”

Biden’s regulatory regime first attacked Google’s search engine and then filed a lawsuit against Amazon for its management of consumers’ chosen online marketplace. Now they have put Apple in their crosshairs, arguing that its business practices – those used to create popular smartphone user experiences – are somehow bad for consumers, regardless of the value and utility they provide.

In doing so, they sought to overturn a long-established and respected precedent called the consumer welfare standard. As outlined in the article “The Antitrust Paradox” by Judge Robert Bork, this standard states that antitrust enforcement is justified only when a company’s practices result in clear and demonstrable harm to consumers. This was a crucial and groundbreaking distinction in Borek’s time because it gave much-needed purpose and clarity to antitrust law. Since then, consumer welfare has largely served as a guiding light in making difficult and otherwise complex decisions about when, where, and how to bring antitrust enforcement proceedings.

Biden’s Justice Department and the FTC, led by Jonathan Kanter and Lina Khan, are trying to dismantle this standard and replace it with radical generalizations that can be exploited and exploited for political purposes. In this way, Kanter, Khan and their colleagues open the door to selective enforcement of antitrust law and undermine the factual basis that underpinned its legality.

This approach will have a chilling effect across industries and could cause significant harm to consumers and our economy. The lawsuit against Apple in particular is an example of this new approach, which undermines and degrades the products and services that consumers use and value most. Apple’s user experience is the foundation of its brand, and consumers adopted its products in large part because they trusted Apple to deliver that experience.

As the implementation of the very flawed Digital Markets Act in Europe has shown, we are already seeing the consequences of this approach for consumers unfold in real time. Rather than trying to stop anticompetitive practices, the DMA – like Biden’s FTC and DOJ – is instead focusing on protecting competitors from competition by supporting companies that have failed to compete in the marketplace on their own merits, incurring very real costs to consumers through forced deterioration of consumers’ preferred tools and services. This approach sends a clear message that a company’s success alone is sufficient grounds to punish it, even if its actions only benefited users.

These lawsuits against tech companies are not the Biden administration’s first attempt to force the implementation of anti-consumer policies through antitrust action – they have already been cited for colluding with EU regulators to circumvent protections enshrined in US law. Now the Department of Justice’s lawsuit against Apple, for example, aims to force it to actively support its competitors – an absurd practice that the US Supreme Court has already struck down and yet the EU has no qualms about using.

As these processes continue, the irony is striking: In the name of protecting consumers, the Biden administration is actively undermining their ability to satisfy their preferences and demeaning their experience. The EU’s approach to suppressing market competition is not a recipe for success, and it would be best to avoid it.