Rewriting the Rules: Antitrust and the FTC with Jonathan M. Barnett and Larry White

Thomas Lenard: Hello and welcome back to the Technology Policy Institute’s podcast Two Think Minimum. It’s Tuesday, June 17th 2025. I’m Tom Lenard, President Emeritus and Senior Fellow at TPI, and I’m joined by my colleagues, Scott Wallsten, TPI’s President and Senior Fellow, and Sarah Oh Lam, Vice President of Strategic Initiatives and Senior Fellow. Today we’re delighted to have as our guests Jonathan Barnett and Larry White to talk about antitrust in the Trump administration.

Jonathan is Torrey H. Webb Professor of Law at the USC Gould School of Law, where he is director of the Law School’s media entertainment and technology program. Jonathan specializes in antitrust, intellectual property, and corporate and business law with a focus on innovation policy and strategy and technology markets.

Larry is the Robert Kavesh Professor of Economics at the Stern School of Business at NYU. Among other things, he has served as chief economist at the DOJ Antitrust Division and as a Board member of the Federal Home Loan Bank Board. Welcome, Larry and Jonathan. It’s great to have you with us.

Lawrence White: Good to be here!

Jonathan M. Barnett: Great to be here.

Thomas Lenard: Before we get to actually what the Trump administration is doing, let’s be good to provide a little background and context, the Biden Administration’s antitrust enforcers were famously critical of the previous 40 years of antitrust enforcement. Larry, you were Chief Economist at the Justice Department, at the Antitrust Division, right at the beginning of that 40-year period.

Lawrence White: I confess, I confess.

Thomas Lenard: And as I recall, the heads of the antitrust division and the FTC at the time, Bill Baxter and Jim Miller, respectively, also were trying to correct what they perceived as errors in enforcement policy during a previous period. So a couple of questions. Do you think that Kanter and Fitz, and Kanter and Khan in the Biden Administration were trying to do something similar to what Baxter and Miller did? And how would you characterize the policy regime that Miller and Baxter ushered in?

Lawrence White: Whoa! Let’s see. We have 5 hours for…

Thomas Lenard: I do want to get to the Trump administration.

Lawrence White: Baxter and Miller they did not like much of what they saw for the previous 30-40 years of antitrust policy and court decisions, and they wanted to change it. The revised 1982 merger guidelines was certainly one vehicle where Baxter could change it, and there also were the kinds of cases that they brought or didn’t bring. I can speak more about the Baxter experience. I knew Jim Miller, but exactly what was going on at the Federal Trade Commission at the time less I can speak less about. As for Baxter, certainly, he didn’t like the way merger policy had been unfolding over the previous 15-20 years.

He wanted the revision to the merger guidelines, and he pushed it through. The major achievement was the market definition paradigm, which has lasted now in roughly the same shape or improved shape for over 40 years. But there were also things like vertical restraints, where he thought that government policy had been moving in a not good direction; and by partly not bringing cases, and partly entering Amicus Briefs in privately brought cases, he wanted to help move the law on vertical non-price restraints. There had been some movement; but not on resale price maintenance, for example. He just did not like what he saw and wanted to try to move that. The other thing, and this was following what had preceded him, he wasn’t about to bring a Robinson-Patman case.

I think you’re pointing out a good parallel. Baxter and Miller wanted change; but the kinds of changes that they wanted were very different from what Khan and Kanter wanted.

Thomas Lenard: Perfect. Let’s talk about what the Biden antitrust people attempted to do and what you think they accomplished. Now, Jonathan, you wrote an article last year before the election, titled The Antitrust Revolution That Wasn’t and Probably Won’t Be, I guess that’s pretty self-explanatory, but maybe you can expand on what you meant by that.

Jonathan M. Barnett: Yeah, sure. And so I’ll answer your question at the same time, I’m going to try also answer your previous question as well. So the neo-Brandeisians and the free market antitrust advocates back in the early 80’s. They both have in common that I think they reflect a certain intellectual and policy climate. So I think, to understand Chicago School antitrust and the victory of any Chicago School antitrust, you have to contextualize it within the deregulatory push that actually started under Carter back in the 70’s. And similarly, to situate this really coming out of nowhere resurgence or emergence, I should say, of the neo-Brandisien, and really out of the somewhat outer fringes of academia and all of a sudden it’s in the driver’s seat at DOJ and FTC. I think that’s reflecting what a lot of people call the techlash where you, where you just get you know what are perceived to be high levels of concentration in a very consumer-facing industry. So it’s part of an everyday person’s life.

I think that partly explains the emergence of it. Now, why do I say “antitrust revolution that wasn’t and probably won’t be” which is where I think it diverges from Chicago because Chicago did not come out of the outer fringes of academic student-edited law reviews. It rested, I think, stated conservatively about 2 decades worth of deep economic and legal scholarship, not just at Chicago, but at many other schools. It had, whether you agree with it or disagree with it had a robust intellectual foundation, it had a vision, it was articulated by Bork. But Bork was resting on an intellectual infrastructure of several decades worth of work, going back to Director Bowmann, and so forth.

When you look at neo-Brandeisian. And I’m just describing this. I don’t mean to be pejorative, right? It’s scholarship of an advocacy nature. It’s highly rhetorical. It’s of a narrative nature in fact, some proponents reject the use of economics. They reject the use of cost-benefit analysis.

That’s why I think they did not succeed in the courts when they came up with unconventional theories, both because it faltered when the courts looked for precedent to back it up, and it faltered when the courts looked for evidence of competitive harm. And that’s because there wasn’t a robust intellectual foundation there.

Thomas Lenard: So, yeah, that’s I mean, that’s very interesting. And they, I mean, what do you think? And this is really for everybody for you, Larry, as well. What will be, if any, the lasting effect of the last 4 years on antitrust?

Lawrence White: I’ll leap in. I don’t think a whole lot will remain. Something like bringing Robinson-Patman suits at the Federal Trade Commission is not going to last. Maybe what I’m about to say is more hope rather than a hard prediction. But I don’t think the changes in the way they restructured the merger guidelines is going to really last either.  For example, relevant market definition. They weakened that. I hope we’ll be able to come back.

Thomas Lenard: Yeah, yeah.

Lawrence White: To this point, and I’m hoping, and I guess predicting that the current regimes at both Justice and Federal Trade Commission will go back to the more robust and less idiosyncratic hypothetical monopolist SSNIP test as the primary way of defining relevant markets for merger purposes.

Scott Wallsten: Is that more of a hope, or that you think for both of you? I guess that it can’t survive without intellectual underpinnings, because that’s in some ways sort of an optimistic view that to believe that policies need intellectual underpinnings. But I’m not sure that recent history? Well, they haven’t for a while now, and they have had some victories in court. So you know. Why? Why do you think that this new movement ultimately won’t be successful?

Thomas Lenard: So what I mean is in terms of the merger issue. You know they came in, or at least Ferguson came in, saying they were going to keep the guidelines and basically follow. But just within the last few weeks there have been several things, a speech from the Justice Department, and also I was just reading about the statement by the cut by Ferguson and the rest of the other FTC Commissioners in the, now, I’m blanking on the name of the case. But basically it articulated a much more conventional view of merger policy, much more positive about the benefits of mergers and the importance of mergers, particularly acquisitions of startups.

Much more conventional view, I mean. Obviously, it was almost without the details. It was almost by itself a rewrite of the merger guidelines, I thought, or certainly signaled that I have the name of the case written down here, but which I can’t find. Oh, yeah, Synopsys, Inc. and Ansys, Inc. case.

Jonathan M. Barnett: Yeah. So, there is language like that in the statement on the Synopsys and Ansys case. But if you if you take that statement and you put it together with the Slater speech at Notre Dame and then you put it together with, I think, actually the most important policy statement we’ve gotten under the new Administration antitrust, which is the remarks by FTC Commissioner Meador. Antitrust policy for the Conservative, he has a line in there. This is exactly the line big is bad.

There’s no, there is no Chicago School person that would ever utter that big is bad. This is a really interesting point. Juncture point at US antitrust history because the pendulum is it’s swinging backto a certain extent to pre-Chicago, to pre-GTE Sylvania but it’s doing it in a way. When you read the tea leaves, you put those statements together. It’s very different than the neo-Brandeisians. They take precedent very seriously. They take statutory language very seriously. They take rule of law very seriously, meaning when you do antitrust, you need to be talking about competition, not other things. So sometimes they sound like Chicago. Sometimes they sound like textualists, and sometimes they sound like populists, because they also, like the neo-Brandeisians, they take the view that the Sherman Act was motivated, at least in part, about a concern over aggregations of power, and that’s very different from Chicago. That is not part of the Chicago analysis. So this, this is something different. We’re in uncharted territory.

Lawrence White: This is different, certainly from what I experienced in the 1980’s. But even to some extent from the Biden Administration, it’s different today; you have the feel there’s much more “from the top.” And that means that the President influences policy with respect to particular companies that just wasn’t present before. And there may have been a little bit of that in the Trump 1 Administration. I don’t know if we’ll ever find out whether the Justice Department decision to sue to try to stop the AT&T/Time Warner merger was presidentially ordered. I thought the DOJ had a good story; unfortunately it didn’t get expressed very well. But was that story accelerated? Call it pressure from the top. That seems to be a current theme as well. And it’s hard for me to think about that. You know, there’s clearly no strong theoretical perspective that’s going to be coming from the top in this administration.

Thomas Lenard: But that’s right, I mean, but I mean Gail Slater’s speech at Notre Dame. She hasn’t gonna quote this thing. It seems to me it could just as easily have been said by Lena Khan, you know, in her definition of America 1st antitrust, and “America 1st antitrust empowers America’s forgotten men and women to shape their own economic destinies in the free market. We will stand for America’s forgotten consumers. We will stand for America’s forgotten workers. We will stand for the small businesses and innovators from little tech to manufacturing, to family farms that were forgotten by our economic policies for too long.” I think it also, you know, fits with what Jonathan, you know, this populist thing. It’s big government. Both big business and big government are bad.

Jonathan M. Barnett: Yeah, that’s true, although the difference from the neo-Brandeisians is that I guess we don’t have a name yet for this school thought, but we call it maybe social conservative antitrust. They’re suspicious of big business. But, unlike the neo-Brandeisians, they’re also suspicious of big government. And one thing that they do clearly reject. It’s in the Slater speech. It’s in the Commissioner Meador speech.

They clearly reject an administrative, a regulatory approach to antitrust. They emphasize litigation, and I think what they’re doing there. And this kind of goes if you take even a bigger picture, this fits in with Vice President Vance’s comments, they’re rejecting the European approach. And there, too, again, they’re departing in a big way from Biden antitrust, because it was quite clear that for many members of the Biden antitrust, their model of antitrust was EU competition law.

And that’s clearly not the case. So this is our vendiagram, it’s partially overlapping. But there’s some important differences from Biden antitrust, I don’t think it should be conflated at all.

Scott Wallsten: You say that they also don’t. They don’t trust. They don’t want big government either. That doesn’t seem to apply outside of antitrust, I mean. Look at the US Steel Nippon Steel merger, I mean, the Government, Trump wants to have a golden share for the government. Well, that’s not kind of thing we see in the US.

Scott Wallsten: That’s right, that’s right.

Scott Wallsten: So it’s certainly not a consistent philosophy.

Jonathan M. Barnett: This is really reading between the tea leaves and the statements here, and also we can start to get some signals. I think in some of the remedies that they’re looking for in the big tech litigations or the mergers, there seems to be a tension inside the Trump antitrust camp. It looks like sort of the more business-minded pragmatists and the more ideological, you know, kind of Jeffersonian and the Senator Hawley kind of types of people. So an example of that right is, on the one hand, when Trump 2.0 starts, they endorse the revised merger guidelines. They endorse the significantly expanded merger, reporting guidelines. But they’ve reinstated early termination. That’s business friendly they explicitly stated in one of the statements, Tom was referencing this, they reject this killer acquisitions idea. They recognize that it’s bad for startups. Disclaimer, I’ve made that argument myself. And thirdly, in this very statement by Commissioner Ferguson and the other 2 commissioners, they explicitly go out of their way to make a broader statement that they are okay with settling cases through structural remedies rather than litigating all the way through, which was one of the signature aspects of Khan and Kanter merger review. They were very, you know they? They were very resistant to settlement.

Thomas Lenard: So obviously both administrations, for one of a more precise term we’re comfortable bashing the big tech. But the thing that differentiates the Trump administration is that it’s largely aimed at content. Their view is that big tech has been biased against conservative speech. And they’re using, they’re trying to use antitrust to, that’s a tool to remedy that. So that’s and that’s, I think, is pretty new. So the question is, how do you think that’s gonna play out? Are there winnable cases there for the Government?

Lawrence White: Oh, man, I’m gonna leave that to the lawyers. That’s clearly an issue in the FTC’s case against Meta. It’s harder to see that in the DOJ’s cases against Google: In the search area and in the online ad area, the cases just feel more like traditional cases: We’re concerned about the exercise of monopoly power. I’ve been looking to see whether this administration would step back in terms of the kind of relief they were going to ask for in the search case. They haven’t. They haven’t yet come up with the specifics with respect to the online advertising case. But it just feels like these cases are just aggressively addressing monopoly, the so far successfully alleged exercise of market power.

Thomas Lenard: Jonathan, where do you think? Where do you think they’re going with these, speech related? Content related?

Thomas Lenard: I mean, there can be new cases. I think they are trying to gather information.

Jonathan M. Barnett: Yeah, I agree with Larry that they’re going full speed ahead on the big tech cases. Of course, the Google search cases started in Trump 1.0, I had thought initially, before I was personally surprised by the content of Slater’s speech, that they were going to dial back on the remedies. I thought there’d be a remedy in the Google Search case that would be narrowly tailored to the offense. But it seems to go, you know the Chrome divestiture. It’s hard to see how that’s connected. I’d be surprised they’re gonna win ultimately on that. But I think that’s you know, that social, conservative Jeffersonian theme is pushing them to keep going ahead on the antitrust cases, and some of those cases you could say, you know many of the theories in those cases, whether you agree or disagree on the facts, the substance of the theories are not. They’re not unconventional theories. Then they’re not something like the Meta-Within case that the FTC brought on under Khan.

But the extent of the remedies in Google search is somewhat surprising. But again, I think there’s this tension inside Trump 2.0 between the pragmatists and the more ideological approaches to antitrust.

Scott Wallsten: Where would you put the emphasis on treating boycotts under antitrust law, so like with the merger between Omnicom and Interpublic, to prevent them from boycotting platforms for political reasons?

Lawrence White: Yeah, that worries me a great deal. I’ve wanted antitrust to stick to competition things and stay away from non-competition things. It’s hard enough to get the competition things done sensibly. And once you start bringing non-competition things into a competition-oriented context, that just worries me. You lose focus. You don’t have enough resources to have the expertise. Arguably, if there are non-competition things that should be considered, they ought to be considered at a higher level within an administration. The antitrust guys should stick to competition.

Jonathan M. Barnett: Yeah, I agree with that. With the guardrail silo approach to antitrust, I think that was one of the key contributions of Chicago schools, its reflected in the case. Law. Commissioner Meador actually affirms that principle, and he says that there’s lots of other policy goals. They’re important. Other bodies of law can address them. Now, that’s not to say that you know the type that you couldn’t bring a group boycott case to address, let’s call it content suppression, if that case can on economic grounds and on proper antitrust grounds, stand on its own two legs. I think it’s a challenging claim to make since the content market is so large and the entry barriers are so low. I have confidence based on the experience under Biden that when unconventional theories are brought before a Federal judge. Most of them reject them if there is not a sound legal, and factual basis, it was actually quite, quite inspiring to see the checks and balances at work in the prior administration.

Thomas Lenard: So since you’ve talked a little bit about the Google remedies, both of you. Do you think? Obviously, the case is still playing out. How many of those remedies do you think would pass judicial scrutiny?

Lawrence White: When I think about divesting Chrome, I think back to the Microsoft divestiture that was proposed by the Justice Department. It was approved by the Federal District Court Judge but then overturned at the Appellate level. There’s a story there that if Chrome is in non-Google hands, there’s a greater likelihood that the owner of Chrome might be interested in other search engines. Sure there’s a story there. This is the economist opining on what a judge is going to do, and that’s a dangerous thing to do. But I don’t think that particular remedy is going to hold up.

Thomas Lenard: The compulsory license proposals, I think, are almost even more radical.

Lawrence White: Were I the “philosopher Prince” (I would never be a “philosopher King”) I would do 3 things: Stop the payments. Next, require that once a month for each user, when somebody opens the Google Search page, Google must show them a set of search engine choices (once a year is not frequent enough; daily is too often). Maybe that gets people to experiment a little bit. And the 3rd thing is, if the Bings and the DuckDuckGo’s were disadvantaged by Google’s monopolizing behavior, they get a one-time-only data dump from Google — but nothing going forward. So that the incentives going forward are not distorted, the data dump is just a one-time-only event: “Data dump! Here it is. You were disadvantaged. Here’s the data. Do with it what you like. Good luck to you!”

So those are the 3 things: Stop the payments; a choice screen (it probably won’t do much, but it’s worth at least trying); and the one-time-only data dump.

Thomas Lenard: You were talking about Robinson-Patman earlier. The FTC had two Robinson-Patman cases. They dropped one, and they’re continuing with the other, how do you interpret that?

Jonathan M. Barnett: Yeah, okay.

Lawrence White: Go Jon, because I didn’t even know there was a second case that they were pursuing.

Jonathan M. Barnett: I wasn’t aware of that either, and when I saw that drop did that kind of confirm where I thought the Trump 2.0 was going, was kind of back toward more conventional antitrust, because there’s almost no credible economic theory to defend the suit that was brought. I think because we’re, you know, this is, this is incremental swings of the pendulum. I’d be surprised to see this administration return to enforcement of the Robinson-Patman Act.

Thomas Lenard: I agree? Well, let’s move to another thing before we end, this a fairly significant thing, which is the kind of the structure, the structure of antitrust, enforcement and the independence of the independence of the FTC. So they fired two FTC Commissioners, basically challenging its status as an independent agency. Once you do that, there seems to be relatively little rationale to have two antitrust agencies. What’s your opinion of all of that?

Jonathan M. Barnett: Larry, you want to take this one.

Lawrence White: Well, all right.

Lawrence White: Tom, in your introduction, you mentioned that subsequent to my being the Chief Economist at the Antitrust Division of the US Department of Justice, I was a bank regulator for almost 3 years, dealing with the savings & loan problems of the late 1980’s. I became very familiar with bank regulation: There are multiple Federal agencies dealing with banks. There are 50 states that are dealing with banks. What we used to call a radio wiring diagram, that’s a good representation of the mess of the system of bank regulation. And I would not defend that.

At the same time, having multiple regulators, a few alternative places where somebody with a good idea can go, is not a bad idea. If he or she is turned down at one place, there’s another place where they can go — that has some appeal for me. So I don’t get upset by the idea of 2 antitrust agencies. There could be two places, even within the Presidential administration, that could initiate antitrust actions. I wouldn’t want ten or fifteen, but two would be OK. There are, of course, the 50 States still, and there are the private litigation suits. So, two, it wouldn’t bother me all that much. Ten? No way.

Scott Wallsten: You think we’ve lost something significant?

Lawrence White: I’m not an alum of the FTC. So I’d prefer somebody who was an alum to address that. It doesn’t bother me to have an “independent” FTC. Alongside a DOJ. There was cross-fertilization of ideas. Some very good people were in senior positions at the Federal Trade Commission, a lot to be learned from them. So, it doesn’t bother me to have them separate.

Jonathan M. Barnett: I’ll just say 2 things on this one. I think the issue with the firing of the Commissioners. That’s a question bigger than antitrust. That’s a precedent that the administration. They have a certain vision of the separation of powers and the constitutional structure. So I’m not going to have anything to say about that, but what I would just say, independent of any legal constitutional questions, I do think that there is a value in having a bipartisan commission, and the reason for that is that it’s really helpful when you can have 4:1 or 5:0 decisions on not even on not just on specific actions but policy statements. Now, one of the reasons that, for example, the 2010 horizontal merger guidelines were so influential and viewed as quasi-authoritative by courts, is that courts perceive them as having staying power across administrations. And so when you lose the minority commissioners, you don’t enable that bipartisan consensus to develop, and that kind of soft law that antitrust almost uniquely generates out of the agencies. I’m concerned courts won’t give it as much credibility as they as they would have otherwise. So that, I think, is, is a cost.

Thomas Lenard: I do think that’s a good point, but it does seem to me that in the last well, just during the Biden Administration, and obviously we don’t have experience with that in the Trump administration. This the more bipartisan nature of the more collegial bipartisan nature of the FTC did not.

Lawrence White: It broke down.

Jonathan M. Barnett: Well, that was, that was in the piece that you had referenced, Tom, that wrote one of the reasons that I argued that some of the policy positions undertaken under Biden’s FTC would not have staying power, is that because they were not bipartisan, they wouldn’t acquire this status of what I’m calling soft law in the cases. Courts would just dismiss it as being a partisan position.

Thomas Lenard: So well, I guess you don’t want to predict about whether the independent, what is, gonna I mean, if let’s say the let’s say the..

Lawrence White: Oh, that’s gotta go to the Supreme Court. It’s a “Humphrey’s Executor” issue, and it’s got to go to the Supreme Court. Where they’re gonna come out? I don’t have a clue; but for sure that one goes all the way to the Supremes.

Jonathan M. Barnett: Great. Yeah.

Thomas Lenard: Assuming, it’s upheld, do you think? Do you think someone will propose combining the two agencies? I actually think one of the one of the implications of, I mean the FTC has the Consumer Protection Bureau, I think one of the benefits of actually having the Consumer Protection Bureau in an agency like the FTC, is that you do have, since antitrust is more influenced by economics there’s a positive spillover of that to the consumer protection side. If you separate them, I think you’d have to put consumer protection in with maybe some of the financial stuff, and maybe create a new agency that probably doesn’t have much economics at all.

Lawrence White: There’s also the Consumer Product Safety Commission, the CPSC. Go back 30-40 years, it was very active, and it would have been at the front of your head. But people have forgotten that there is a CPSC. I would guess they may have a handful of economists, maybe, but they don’t have the kind of firepower of the economic analysis group at the FTC. It’s not the majority of the Economists in the Bureau of Economics, but they have do have 20 or so good-quality economists thinking about the Consumer Protection side of what the FTC does. So your point is a good one. That likely happened because of the buildup on the antitrust side of the economics firepower.

Jonathan M. Barnett: Yeah. So I see your point that it might logically follow to consolidate the two if the firings were upheld. But I think, under the current administration, the political impetus to do that would probably be fairly weak, because as far as we can see right now, the two antitrust agencies are both roughly on the same wavelength, and specifically, the current FTC has already stated, I believe one of the Commissioners have rejected the view that they have rulemaking power under the competition laws, and under the Khan FTC, their efforts to use Section 5 to exercise rulemaking power that would have created a real divergence, because then you would have had an agency empowered to pursue actions under the rubric of antitrust law but no longer strictly governed by the guardrails of Sherman Act, Section 1 and Section 2 case law.

Lawrence White: Well on non-competes, I think that’s exactly what they were trying to do, and my understanding is that got held up in the courts. And so things are in limbo on their effort through rulemaking to you know, have something done about non-compete clauses. So yeah, it’s problematic.

Thomas Lenard: Okay, well, I think we’ve solved all the major issues.

Lawrence White: Of course.

Thomas Lenard: Thanks a lot. We’re sure that there’ll be much more to discuss on this, and I appreciate your taking the time to do this today.

Lawrence White: Thank you.

Jonathan M. Barnett: Thank you for having me.