Bill Kovacic on Political Interference, Institutional Decay, and the Future of U.S. Antitrust

Tom Lenard: Hello, and welcome back to the Technology Policy Institute’s podcast, Two Think Minimum. It’s Friday, October 10th, 2025. I’m Tom Lenard, President Emeritus and Senior Fellow at TPI, and I’m joined by my colleague Scott Wallsten, TPI’s President and Senior Fellow.

Today, we’re delighted to have as our guest Bill Kovacic to talk about some of the latest developments in antitrust. Bill is Global Competition Professor of Law and Policy and Director of the Competition Law Center at George Washington Law School. He’s a former chair of the FTC and one of the most insightful commentators on what’s going on in antitrust, both here and internationally. Welcome, Bill.

William Kovacic: Tom, it’s wonderful to be back. Thanks to you and Scott.

Tom Lenard: Let’s start with a little background. The Biden antitrust team were outspoken in their view that the previous 40 years of antitrust enforcement—a time period during which you held a number of senior positions in the antitrust enforcement world—was a failure, and they therefore attempted a radical course change. They thought we had a significant market power problem, which was at least partly due to lax antitrust enforcement. How valid was their critique, and what do you think they accomplished during their four years?

William Kovacic: They’ve stated the critique so often, I’ve sometimes wondered whether I should take all the salary that I collected in those years and give it back, maybe with interest. I think that in any period of public policy, it’s always a fair question to ask, did you get the right solutions? Did you have the right impact? I applaud the Biden team for engaging in that debate. That’s a healthy debate that we should be happy to have.

The disappointment I have is that there’s a tendency in a number of areas of public policy, but you see it often in antitrust law, that a new team arriving, often during a regime change, comes to believe that the only way it can make the case for change is to burn down whatever was there before, and to lay waste to the earlier program. That has a couple of adverse effects.

One, in the case of the Biden critique, it overlooks a number of areas in which public policy accomplished good results, where we had industries that arguably came out better during what Joe Biden called the 40 years of failure than they did going in. The second unfortunate element is that where you have what we might call universally and durably good practices, the new administration fails to pick them up. It hurts the new administration because it gets in the way of doing their own program effectively, but it also undermines support for good policies and practices that I think we could stand back, with a neutral team of observers and say, those are norms or standards that are worth keeping for a long period of time.

When I look at the actual impact of the Biden program, what did they do? They certainly changed the debate. And we have now a thriving debate about goals, about means, about effects, and again, that’s healthy for a competition policy system, any area of public policy. In many respects, I think when we look at specific, durable accomplishments, they didn’t have enough time to embed their larger preferences for bolder doctrinal approaches in the system.

I compare it to the Ronald Reagan-George H.W. Bush era, where for 12 years, you had a sustained effort to change the culture of the enforcement agencies, to pick judges who would embrace your own preferences, to adopt policies and implement them over time. That accomplished a great deal in altering the direction of policy. It’s hard to do that in 4 years.

So I think a number of attempted adjustments, such as changes in merger policy, changes in merger guidelines, those guidelines did change. The Trump team has said we’ll carry those forward. But if we try to identify the durable changes in doctrine and policy, we certainly have greater attention to big tech, greater attention to competition policy concentration in specific areas. We have the emergence, maybe, of a new consensus about what antitrust should do in those areas, but to a large extent, I’d say that the Biden team’s effort to accomplish a transformation of policy could not be achieved in a four-year period of time.

Scott Wallsten: Well, how do you put the Trump administration’s approach in the context of your mental model you described, where a new administration comes in and feels that it has to destroy everything that came before it? Whereas in this case, at least for big tech, they’re kind of continuing what Biden did, and they’ve maintained the new merger guidelines, too. So where does that fit in?

William Kovacic: Yeah, we see two messages coming out of the administration. One, as you say, Scott, is an unmistakable, frequently stated commitment to carry forward the big tech cases, the big monopolization cases, and to bear down on big tech. I think for Andrew Ferguson, the chair of the FTC, and Gail Slater, the head of the Antitrust Division at the Department of Justice, they rarely pass up an opportunity to say we’re keeping our foot on the accelerator here, and to maintain the program.

At the same time, there is a decided effort to differentiate the Trump program from both the Biden program and what they often refer to as the Bush program. One of Gail Slater’s frequently recited mantras is, we are not Biden, we are not Bush. And she points to Bush and says, not active enough. Biden hyperactive. This is a bit of the Goldilocks theory of policy. Not too hot, not too cold, just right.

So in that respect, they’re trying to situate themselves in a sensible mainstream that exists between these two poles. I would say with respect to the Bush program, they’re saying many opportunities, especially on tech, they would say, were passed up to have a formative impact on the emergence of the tech sector, allowing Facebook at the time to acquire Instagram and WhatsApp, not bringing a monopolization case against Google, say, 15 years ago, allowing Google to buy DoubleClick, and in a number of other areas not intervening. They’d say that was a Bush-era program that carried forward in many ways through Obama, changed a bit during Trump 1.

And they would say, in the case of the Biden program, far too hyperactive in trying to discourage mergers. So in many respects, in saying, not Biden, not Bush, that’s an effort to position themselves as being part of a more sensible mainstream of enforcement. I think there again, it tends to overlook useful things that were done in the earlier eras that they want to embrace if they want their program to work, especially their program of encouraging the removal of artificial, publicly imposed barriers to competition.

Scott Wallsten: So the thoughtful middle is not usually a place one thinks of the Trump administration, and there’s a fine line between Goldilocks and incoherence. What do you think they’re doing on this goal?

William Kovacic: It’s a struggle. It’s a real struggle, I think, for the reason you mentioned. That is, on the one hand, they want to portray themselves as being on the barricades and dealing with big tech. Not simply in the antitrust domain, but in the FTC’s case, on all matters related to privacy, protection of children, safeguarding of individual interests with respect to expression, censorship. A number of those positions, I think, could be called, from a historical perspective, edgy. Those aren’t necessarily middle-of-the-road approaches to policy.

So in a way, they’re trying to establish their legitimacy by saying we are not hyperactive, we’re not underactive, but at the same time, there’s a decided effort to take the Biden projects—a couple of which were carried over from the first Trump administration, namely the Google search monopolization case, the FTC monopolization case against Meta—and reposition them as anti-censorship initiatives, that you need to break up these enterprises in order to establish a larger number of conduits through which people can provide and obtain information.

So it is, I would say, they’re right, there are internal frictions in the message. But the overall message is to say, we are tougher than Bush, traditional Republicans, but we are not overreaching in the way that the Biden administration was.

And it’s interesting to read the speeches, for example, of Mark Meador, one of Andrew Ferguson’s colleagues. It was a long paper from earlier this year that lays out the view of antitrust as being a centerpiece of traditional conservative antitrust thinking. To quote Gail Slater’s version of this, that public policy has to be as concerned about tyranny.com as it is about tyranny.gov, to bring the concern about large firms directly into the picture, and to portray the current program involving dominant enterprises as being mainstream conservative thought that goes back to the origin of the antitrust system.

Tom Lenard: So one of the things I think you’re pointing out is that in a lot of the speeches, what they’re pointing to is content. The content that is on the big tech platforms, and the concern that it’s biased against conservatives. Is that how does that fit into antitrust? Is that an antitrust issue?

William Kovacic: I guess we could say that, in a sense, it’s related to traditional antitrust concerns if we portray this as a dimension of quality-based competition. That one thing that consumers want is a variety of choices. And they want rivalry among suppliers, in the case of news, to provide a representative selection of perspectives. And that debate, that provision of high-quality information defined as an array of perspectives, makes consumers better off.

I’d say what is different here is that this is so clearly hitched to a basic concern about the filtering out of conservative voices. And the idea that antitrust can enter the arena and police alleged misrepresentations about philosophy and points of view, could come in and police a political campaign where an elected official says, you’re lying about me. I mean, in a number of areas there, we’ve left that to the political domain.

And I think the concern of, I would say some antitrust traditionalists, and I bear this concern, is that the more you get drawn into policing speech, the more you do that, you bring yourself directly into the arena of politics. And elected officials of all sorts say, welcome to my neighborhood. And we have no compunction about telling you about what to do in that neighborhood.

I would say that, in a sense, the Biden team opened the door to this with their insistence that competition law must deal with a wider array of values that go beyond microeconomic policy effects, that we should bring in concerns about equity, about democracy itself. The FTC’s policy statement on unfair methods of competition said, let’s look at a wide variety of values. The merger guidelines entertain concern for a wider variety of values.

I think a reason that the Biden team’s merger guidelines and their FTC Section 5 policy statement have not been repudiated, is that the Trump team looks at that and says, we can live with this. This is marvelously elastic. This gives us a lot of running room to bring in our own values. We are quite content to do that.

Tom Lenard: So would you, do you think they will eventually revise the merger guidelines?

William Kovacic: They hold out the possibility. They said, let’s see how it goes. There’s plenty of flexibility in policymaking to embrace what you like and simply leave aside what you don’t. The effort to actually redo the guidelines is considerable. You have to divert a lot of effort. You have to have a public comment period. If you’re looking at all the things you want to do during your tenure, and realistically, if you’re the chair of the FTC, or you’re the head of the antitrust division, you’re looking at a tenure that, on average, is 2-3 years.

How much of your energy in that time do you want to spend retooling these guidelines if you think you can live with them the way they are? In fact, they open up avenues of activity that you embrace. They give you flexibility that you like. My intuition would be that the revision of those documents is a lesser priority.

Tom Lenard: So, in terms of continuity, the Trump administration basically has continued, they basically adopted the Biden administration’s recommendations concerning the remedy in the Google search case. And most of that was not adopted by the court. What kind of signal does that send?

William Kovacic: I think Judge Mehta was carefully thinking about the appellate gauntlet that his decision would have to travel, and any decision about remedy. I think two decisions probably stuck out in his mind, two that are cited frequently in his decision on remedy.

One is the decision of the U.S. Court of Appeals for the District of Columbia in 2001, on the liability questions in the Microsoft monopolization case. And the court found liability in ways that are helpful to government plaintiffs in the future, but it cut back on the decision about liability. And it remanded the decision on remedy where the trial court had mandated a breakup, a significant breakup. The DC Circuit said, We’re not telling you what to do. We are telling you to keep in mind that the basis on which we found liability is notably narrower than the basis on which the trial court found liability. And in effect, what the court, I think, was saying was, I interpret it, don’t bring us a breakup remedy back. We don’t think that the foundation, the footprint on which you would build a big divestiture remedy is adequate here. That’s my interpretation, but the court certainly didn’t say that, I’m reading between the lines.

The other opinion that he cites frequently is that 2021 Supreme Court decision called Alston. This is the case involving the NCAA’s limitations on compensation for athletes. The court speaks at great length about the liability standard, how should the rule of reason be applied? There are some powerful passages on remedy, though. And those remedy passages get cited several times by Judge Mehta. They speak about caution, they speak about proportionality, they speak about getting a good fit between the severity of the findings on liability and the degree of intrusiveness of the remedy. They speak about how corrective forces in the markets can solve a number of problems. They caution against adopting remedies that involve burdensome oversight responsibilities.

So Judge Mehta cites that opinion a number of times. There’s an older antitrust jurisprudence on remedies that arguably is bolder in its message. But this is the most recent thing the Supreme Court has had to say. And I think Judge Mehta was making a realistic assessment. I think some commentators have scorned him for doing this. Several have referred to him as a coward, as lacking courage. I would say that that is a mistaken assessment. I see realism there.

Now, he could have done something bolder if he’d chosen to, but I think he was making a careful assessment of the path that his decision must travel ultimately through the Court of Appeals, maybe a date with the Supreme Court, and knowing the cautions that those courts have laid out before him on remedy. And he said, I’m not going to go for a breakup, I’m not gonna mandate a spin-off of Chrome or Android, I’m going to impose behavioral solutions. And he mentions, interestingly, if I’ve got it wrong here, we can reopen this at a future date. I’m not sure that he hopes that that will ever happen, but there’s an interesting provision in the middle of the opinion that says, perhaps this has to be adaptable, and maybe we have to come back on this at a future date.

Scott Wallsten: Does this set a precedent, not in the legal sense, but for the remedies in the ad tech case? Would the judge have to explain why Mehta was wrong if he wants to do something different?

William Kovacic: She’s in a different court altogether, a different district court. The path of appeal was through a different court of appeals. She’s not bound by the Microsoft decision. She can come up with her own interpretation of what the Supreme Court has had to say in Alston. She can say, I was looking at different behavior. She can find that there was more severely anti-competitive behavior in her case than there was in the search case. So she has a number of ways to maneuver around what he had to say.

But my guess is she has read Judge Mehta’s decision more carefully than any other human being on the planet now. In the way that I think federal judges in these cases, whether it’s the Google Epic case in the Ninth Circuit, in all of these cases, the judges know that they’re operating on somewhat of an experimental frontier, and they’re interested to see how, on this very difficult exam question, how other students are answering the exam and the answers they’ve turned in.

So on the one hand, she has enough self-confidence, without question, to say I’ve got a job to do, I’m happy to do it. Although, interestingly, in the Google ad tech remedies matter, she has a couple of times said, I’d like this case to settle. And she was asked at one point, what are the best words that could be uttered in the courtroom? Your Honor, we have a settlement, was one of them.

But I think, without question, she’s paying close attention to what these other tribunals have had to say, including Judge Mehta, and I suspect she will take to heart the methodology, the philosophy that he brought to the decision in the case. And she’ll decide for herself whether she thinks the behavior in question merits further intervention. She spent more time, I think, than Judge Mehta did in his remedy proceeding, focusing on feasibility. She pushed the experts very hard on how difficult will this be to do? How long will it take to accomplish? How smooth would the handoff to another enterprise be if you forced the divestiture of the ad exchange, or the DoubleClick platform for publishers? How will that happen? How long? What will be the effect of that? She spent a lot of time zeroing in on the feasibility of implementation.

So I think in that respect, I think she learned a lot from what Judge Mehta did, if only to come up with another set of questions that she thought to be the most important, basically to refine her own analysis based upon what she saw taking place across the river in Washington.

Tom Lenard: Going back to the FTC world. Do you have a prediction about what’s gonna happen in the case involving Humphrey’s Executor?

William Kovacic: I have a hearts and minds problem on this one, Tom. My heart would like to see Humphrey survive. My mind tells me it’s not going to happen. You know, in the world of sport, you can have miraculous comebacks that defy high odds and an adverse score, but I think the court’s giving us so many hints to say that’s not going to happen.

The only footnote on that is, I wonder how much the Chief Justice, for example, is going to pause for a moment and think about the ripples this sends through the entire system of public administration at the federal level. That is, how many federal agencies rely upon this model as a basis for administrative adjudication, or for rulemaking, or for governance generally. And think for a second, a lot of dominoes are gonna fall if I push this one over. And we’ll put aside what the court ultimately is going to decide about the removability of members of the Federal Reserve Board, where the court seems to be going in the direction of saying, that’s different. And can they find their own rationalization for doing that? I’m confident they can. Whether it’s persuasive, I’m not so sure, but they can find it if they want to.

So my guess is that Humphrey’s Executor expires, and that will have powerful effects. I think that is the beginning of the end of administrative adjudication at the FTC, which was the reason the agency was created. I don’t see how you can have a legitimate tribunal where the president can fire the judges, and basically say, Chairman Wallsten, Commissioner Lenard, you brought the wrong case, you’re out of there. Or I see you drifting in the wrong direction on a decision, you’re fired. That goes away.

When that goes away, the main difference between the Federal Trade Commission and the Department of Justice Antitrust Division evaporates. And it becomes much easier to look at the FTC and say, you can stay in the business of consumer protection and data protection. But we do not see the need in the antitrust world for two agencies that use the same prosecutorial model, that operate at the express, direct guidance of the President, and follow the President’s commands. We don’t need two. It’s a major boost in the direction of simplifying antitrust enforcement by unifying all of that authority in the Department of Justice.

So yes, I think, I say regrettably, but realistically, Humphrey’s dies, the dominoes start to fall throughout the FTC’s model, and we end up at a point within a few years where the Department of Justice is the exclusive federal antitrust enforcement agency in the United States.

Tom Lenard: So when you talk about a hearts and minds problem, reading into that, is that because you, not that you necessarily think intellectually that this particular set up is constitutional, but do you think it’s worked well? Or am I reading that correctly?

William Kovacic: Two answers. One is I think it’s not constitutionally inevitable that you would conclude that the president must, in order to carry out his responsibilities for implementing the law, must have the ability to remove FTC commissioners at will. I think that when I look at the experience of the U.S. since 1914, when the FTC Act was adopted, to the present as one where, for the FTC and for other agencies, we’ve had a continuing adjustment that takes place between the Executive and the Congress about oversight responsibilities for the FTC.

There’s no doubt in my mind that the President has considerable authority to influence the so-called independent agencies right now. The Reorganization Act of 1949 was a powerful bit of legislation. Reorganization plan number 8 for the FTC gives the president the power to identify the chair from among existing members of the Federal Trade Commission. That means that the President can say, Kovacic, good job, but you’re now a mere commissioner, and Lenard is now the chair, because I like him better. That’s a real bit of discipline. The control over the budget, a number of other features, the president is not powerless by any means.

So I see the FTC’s authority has grown, but so has the possibility for presidential control. And I think the Constitution allows that allocation of tasks between the Congress and the President. So I’m not, I don’t believe the unitary executive model points you inevitably in the direction of giving the President absolute removal power. But whether or not it does, is the FTC model worth preserving?

And I will acknowledge my disappointment looking at the historical record of the FTC and using its distinctive tools. I see disappointment in how well it’s been used. I can come up with a playlist of 10 greatest hits since 1914. But it’s maybe a two-set album. It’s not 10 gold albums that we put on the wall and acknowledge as being a wall of honor. It’s a more limited list.

Scott Wallsten: So the disappointment is in the FTC. You don’t feel like it’s met its potential.

William Kovacic: That’s right. And I think, I guess my ultimate concern, Scott, is that the model is not sustainable. That the FTC was given a broad, scalable mandate. That’s Section 5 of the FTC Act, where Congress has said, you can adjust the boundaries of doctrine. Whether that runs afoul of limits on delegation, it’s a politically potent and difficult mandate to execute. Because you’re telling the FTC, go to the frontier and adjust the boundaries. That’s inevitably going to attract a great deal of attention and scrutiny. It certainly will elicit opposition within the industry.

So you’ve created a model where you’ve told the agency to operate in an inherently risky part of the spectrum of policymaking, where we, the Congress, will be listening to entreaties from industry. The courts will probably be inherently suspicious of that kind of broad grant of authority. So I wonder whether, for long-term effectiveness, if it is possible to execute that original mandate in a way that is sustainable in light of the political pressure that it creates, the skepticism within the courts.

I’d put it this way, for it to work, the FTC has to do a lot of things just right. It’s gotta have really superior leadership, it has to have a terrific staff, it has to have superb policy planning. I think of it as a friend in the airspace sector used to describe the U-2. The U-2 is a magnificent airplane. It was very unforgiving to fly. When you were flying that long mission over the Soviet Union, to take the early example, there was a small band of airspeed within which you must stay in order to remain in stable flight. For a long period of time, you couldn’t make a lot of mistakes. You had to fly, you needed a really good pilot. If you had a really good pilot, it was a really cool airplane that could do a lot of things.

I see the FTC as an airframe being unforgiving with respect to how it’s flown. So if it’s flown really well by a really capable team, it can do pretty extraordinary things. My deeper doubts are whether or not it is possible to maintain that team over time. And given the mandate, with this flexible adaptation built in, whether it is politically sustainable.

Scott Wallsten: Well, the U-2 wasn’t sustainable.

William Kovacic: It was not, it was shot down. It still flies, to do other missions, but not the mission that it was designed for, no.

Scott Wallsten: Right. So another version of this question, which in theory has an empirical answer, but I have no idea what the measurements would be. Is there any reason to believe that antitrust tools, and maybe even policy, have advanced more because of the implicit competition between the FTC and the DOJ?

William Kovacic: I believe that is true. You can look at a number of areas where the FTC picked up and ran with ideas and issues that the department did not. And it ran with them in a good direction. One issue in the whole area of policymaking is the extent to which the decisions of state governments and state legislators, state boards can override the principles of the Sherman Act, the so-called State Action Doctrine.

The FTC really, from the 1980s forwards, has been the one that’s been at the front line of fighting that battle. Two successful trips to the Supreme Court over the past 15 years. One in a case called Phoebe Putney, another case called North Carolina Dental Examiners, earlier cases with names such as Ticor, cases where the FTC was building the standards through litigation in front of a Supreme Court that was not necessarily receptive to pushing back on state prerogatives. The FTC established principles that invite scrutiny of actions at the state level that would simply displace the operation of the competition policy system. The Department of Justice wasn’t keen on doing that, and didn’t do it. That’s an example of where the Commission arguably defined an area of effort, pursued it, I would say pursued it with some success.

I wish the lists were greater, but I think especially where the FTC on the consumer or competition side has brought those two disciplines together, used its unique data collection and information gathering capabilities to promulgate guidelines, to convene hearings, to bring cases, I think there are a number of examples there where the fact of rivalry, and there has been rivalry, has produced results that are worth having.

I guess my minimum proposition, Scott, would be that before we cast the FTC model aside, I would like a more deliberate effort, be it by Congress or others, to meet the challenge that you pose, which is to say, give me your best examples of where that competitive attention has been valuable. And FTC, go through the exercise from It’s a Wonderful Life, let’s do the counterfactual of what life would have been like if you had not been there. What might have gone missing? I think that’s a good exercise to have. I wouldn’t say that that exercise inevitably leads you to retaining the FTC as it is now, as a competition, data protection, and consumer agency.

Scott Wallsten: It would also be probably the worst Christmas movie ever.

William Kovacic: You know, we don’t have a whole lot of really good antitrust competition law movies. The Informant was a nice try, but we have some egregiously bad ones. It’s an area for the, I guess if you can turn Michael Lewis’s Moneyball into a compelling movie about baseball, quants, and sabermetrics, maybe you can do it for antitrust law.

Tom Lenard: Let me change subject a little bit. Back to the Antitrust Division. So two high officials of the Antitrust Division were fired over the summer by their political superiors over a disagreement over a merger review case. So what are the boundaries of appropriate and inappropriate political interference in matters like that?

William Kovacic: There’s no question that in the history of the Antitrust Division, there have been notable instances in which the president has instructed the Antitrust Division to abandon a case or modify it dramatically. And that’s contemplated by the chain of command. Maybe one of the most striking being in the early 1950s. The FTC did a study of the international petroleum industry, identified a wide-ranging production and distribution cartel involving the principal international integrated petroleum companies, prepared a report, and the Department of Justice convened a grand jury to assemble the criminal price-fixing case.

Harry Truman said, back down, upon the advice of the Department of State and the Department of Defense. He said, if you want to bring a civil case involving downstream issues, you can. But you’re tampering with a framework that the U.S. government basically has been complicit in developing in the Middle East to ensure an orderly production of petroleum, a flow of revenues to different producing states that are our allies. And we do not want, in this emerging contest with the Soviet Union, to have our international petroleum companies called criminals. So you will not bring that case. You know, that’s an instance where the president intervened directly with major national security interests at hand. So it’s feasible.

Notwithstanding those kinds of examples, and there are a handful of notable ones, generally speaking, the norm that had developed over time is that the White House would not intervene in the work of the Antitrust Division. As recently as 2016, the Department of Justice and FTC submitted a paper at the annual competition meeting of the Organization for Economic Cooperation and Development, and it’s a paper that talked about independence as a desirable attribute of a competition agency, where some insulation from political interference was important. Both the FTC and DOJ said autonomy from destructive political intervention is important. And DOJ has a footnote that said, yes, the president could dismiss us. That is the chain of command. Yet, it doesn’t happen. It happens so infrequently that it’s not worth worrying about. The White House gives us a great deal of independence, and DOJ held that out as being a key attribute of its operations.

Well, the Department has largely abandoned that point of view. It says, proudly, we work for the president now. And I guess what’s upsetting about the Hewlett-Packard episode that you mentioned, Tom, is it would appear, based especially on the comments that Roger Alford made at the Aspen conference. You heard it first in Aspen, at the TPI program, where Roger said, this was shameful interference by lobbyists who simply marched into the Department of Justice and said, cram down this deficient settlement as a way to end a case where the professional judgment of the department, of its antitrust division, was to proceed with a case.

Roger’s point there, which I find persuasive, is that where that kind of interference is effective, that invites the rest of the world to try. You have a lot of effort devoted to that kind of lobbying. And for Gail Slater, whom I think is a superb analyst, I think she was an excellent choice to head the antitrust Division, and probably found that intervention reprehensible, it means that every decision you take in the future takes place in a shadow, a shadow cast by that one episode. So that even when you do things that, by any measure, moral, ethical, or analytical, are exactly correct, the question always emerges. Why? What did it?

That is a shadow that is most unwelcome when you’re trying to do good work. And it just poisons your relationships with the rest of the world, where you’re trying to discourage that kind of intervention as being a norm. That’s a decidedly unfortunate episode in the modern history of the department, and it will nag the Antitrust Division throughout the administration.

Tom Lenard: Well, let me just ask one final question. If you were currently in a leadership position in one of the antitrust agencies, what would your priorities be?

William Kovacic: One of my main priorities would be to build, and I’m afraid now, rebuild, human capital that’s been lost. There is, I don’t have scientific proof to offer you for this, but I think if we could do a FOIA request and identify arrivals and departures, we would have seen, since January, a dramatic outflow of talent, especially talent at relatively senior levels. Not heads of unit, but people with 10, 15, 20 years of experience who’ve gotten to the point where their intellectual skills and their experience give them the intuition necessary to run complex projects and do it well. There has been an exodus in many areas of that talent. That has to be restored. You cannot run an ambitious, substantive program without those teams. That’s been weakened. And that’s a slow growth to restore it. That would be one.

Second is, I would like to see, and if I were back at the FTC, I would like to see an integration of effort between the Department of Justice and the Federal Trade Commission that focused on beginning with, again, questions that I associate with questions that TPI has posed in its conferences, where basically the question is, what is your larger ambition for the antitrust program over the next 5 to 10 years? Where you sit down together and say, these are the strategic areas of investment where we want to build knowledge in the areas in which we’re working, and to develop cases that will work. That ought to be a cooperative joint venture, and it largely is not right now. There’s a great deal of independent effort, although that could be solved as a result of the Humphrey’s case. That could go away.

Another is that I would like to see, and in this respect, I think that Gail and Andrew have laid out a sensible program. The threats to an effective competitive system can come from overreaching private behavior and overreaching behavior in the public sector. And this is an area where I think the Biden administration’s whole-of-government approach was certainly on to something. It’s unfortunate that that was unceremoniously put in the dustbin where President Trump just rescinded the executive order that created that. That recognized that the threats to an effective competitive process come from both directions. I think that’s a worthy philosophy to carry forward in building cases over time, and developing them.

So I guess the last thing I would like to do is to see a restoration of efforts that have taken place in the past to make the assessment of the effects of competition policy a much more front and center element of the program. To go back and answer Scott’s question, which I will rephrase this way, has it worked? How do you know it’s worked? Which cases have made what impact in which sectors? With an eye towards replicating that kind of success over time. So to make assessment, evaluation of process, of substantive outcomes, much more of an integral element of policy making in the future, so that you can answer questions far better than, it’s my hunch that it worked, to have more actual results to put on the table to think about. That would be, that’s heavy on institution building. But I think the institutions need significant reinforcement there to be effective in the future.

Scott Wallsten: So let me ask, so part of, most of this discussion has been about the institutions, about institution building, and how different policy differences across administrations play out, and differences between the DOJ and the FTC. And then there’s this little part of the discussion where we think that decisions are being heavily influenced by lobbyists in ways that they weren’t before, even though the head of the DOJ probably was pretty upset by it. Which seems to suggest that we have a real rule of law problem, right? Are all the discussions about institution building, does that mean anything if we have a rule of law problem at a higher level? Or are you saying something different?

William Kovacic: If we have a high-level rule of law problem that does not respect the role of courts as governing institutions, does not respect some of the norms and customs of administrative behavior that we’ve come to embrace, meaning an emphasis on disclosure, transparency, if those things are less important, then yes, we’re in a fundamentally bad place. In aviation terms, that’s an inverted spin. And is that what we’re, is that what you see now?

I can see a degree of instability that is worrisome. That is, the instability that raises questions about the effectiveness of the system as a whole, who’s deciding? I mean, for the administrative agencies, will the president ever be minded to fill the now-current two vacancies at the FTC? In the world of administrative decision-making, not just for the FTC, are we entering an era where presidents might say, I don’t see why I shouldn’t sack the whole lot of you. That is, why do I have these institutions at all, especially the ones that vex me? So is that kind of constraint on administrative behavior, is that operation of the administrative system going to disappear?

Those are all steps in the direction of at least abandoning norms that I think have been important for the credibility of the system. And I think for the effectiveness of the system. Ultimately, when agencies appear in front of our courts, I never thought that cases like Chevron made that much of a difference. I always thought, in conversations with federal judges, that the deference you get, or the respect you get, is the respect you earn. And the basis on which you earn the respect is to persuade them that in a given matter, you’re bringing to bear the distillation of decades of experience, expertise on the board and the staff. So that what you’re telling the court is that we’re not always right. But there’s a greater likelihood that we’re right than you might be acting in a vacuum. And we want you to think very carefully before you rebuke us.

Now, you can do that, sometimes we deserve it, but if that notion of good professional judgment as the anchor for decision-making disappears, and you’re seen to be acting only at the behest of a powerful legislator—by the way, Congress intervenes in destructive ways, too—or at the behest of the head of state, who’s motivated by relationships with lobbyists or others, from whatever direction. If it seems that the basis for prosecution decision making are these forces, rather than good professional judgment, there’s nothing for the courts to respect. And your ability to win matters where you should win is diminished considerably.

That’s, we’re reminded of how much of our framework depends not on formal structures, but on norms and customs, norms and customs that have been developed over time. So I see the repudiation of those in the U.S. to be a concern. And I’d mention, Scott, you see disturbing signs not only in the US, but you see them abroad, too. In instances where other governments, I think of the United Kingdom, where in January, early in the year, the UK government dismissed the chair of the Competition and Markets Authority, and just said, you’re fired, because you’re not on board with our growth program. That had never happened in the history of the UK system that goes back to 1949. That had never been done.

And I know, and I think both of you see this as well, when you talk with specialists in other countries, say in this hemisphere, the many interactions we have with Latin American officials, their view is that we believe in people, you believe in institutions, and it’s your institutions that provide a rugged foundation for good policymaking, even when there are periodic storms. When you back away from your institutions, when you weaken them, that does two things. One, it shakes our own confidence, but it tells those who are inclined to override institutions, if the United States does it, why not us? Why shouldn’t we hammer away at them, too?

That is, you are weakening a framework of governance and respect for legal principles that you have worked in the post-World War II era to build. And you want to put that at risk. That’s not just bad for you, it’s bad for us, too.

Tom Lenard: Well, I was going to ask some international questions, but I think we’ve run out of time, so I want to thank you for taking the time to do this. It was a very interesting conversation. I appreciate it.

William Kovacic: No, I’m most grateful, Tom, Scott. Thank you so much for the chance to have this chat.

Scott Wallsten: Thank you.