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The New Anti-Trust Standard (just give your opinion about the article)

Article: The new competitive standard

Amazon.com Inc.'s proposed acquisition of film studio MGM would ordinarily provoke little antitrust concern. MGM's share of box office receipts is tiny and Amazon's entertainment footprint is relatively small.

But Amazon of course does much more than make movies: it is the country's largest e-commerce and cloud-computing company, and a dominant seller of books, videos, and music. Founder and Executive Chairman Jeff Bezos own the Washington Post. In their totality, then, Amazon and Mr. Bezos represent a significant concentration of economic and cultural influence. For a new generation of trustbusters, that's a bigger concern than the efficiency benefits a merger might bring.

"There is sound reason to ask whether permitting Amazon to leverage its platform to integrate across business lines hands it undue economic and political power," then law student Lina Khan wrote in a now-famous law journal article in 2017.

Last month, President Biden named the 32-year-old Ms. Khan chairwoman of the Federal Trade Commission. At a confirmation hearing in April, she said antitrust's historical role is to "protect our economy and our democracy from unchecked monopoly power."

Ms. Khan embodies the neo-Brandeisian movement, named for Louis Brandeis, a crusading lawyer and later Supreme Court justice who argued bigness was both inefficient and antithetical to liberty. "Size, we are told, is not a crime," he wrote in 1914. "But size may, at least, become noxious by reason of the means through which it was attained or the uses to which it is put."

For Brandeis, democracy included the freedom of a worker to negotiate with their employer, a supplier with a retailer and vice versa, and a farmer with his bank, which required a plurality of market participants. "He feared that as the corporations became large and powerful, they took on a life of their own, becoming increasingly insensitive to humanity's wants and fears," Columbia University law professor Tim Wu wrote in a 2018 book . Mr. Wu now serves on Mr. Biden's National Economic Council.

For decades that's how courts and regulators interpreted antitrust laws, regularly ruling against mergers and business practices such as exclusivity deals between suppliers and customers.

In the 1970s that approach came under attack by conservatives led by the late legal scholar Robert Bork, who had served under Richard Nixon. "The only legitimate goal of American antitrust law is the maximization of consumer welfare," he wrote in his 1978 book "The Antitrust Paradox." Companies got big by becoming more efficient, which benefited consumers, he wrote. Judges and regulators, lacking even a "rudimentary understanding of market economics," deprived consumers of these efficiency benefits when they blocked mergers in pursuit of a "grab bag" of political and social objectives.

The consumer welfare standard has come to govern antitrust. But in the last decade, rising economic concentration, high-profit margins, declining business startups, and subdued investment all suggest monopoly power is growing again.

Meanwhile, Mr. Biden's election has coincided with a backlash against the pro-market principles that have governed economic policy for decades. Progressives blame the obsession with efficiency for aggravating inequality and racial disparities; conservative populists blame free trade for hollowing out manufacturing.

Big Tech is ground zero for this backlash. One or two companies now dominate social media, smartphone app stores, Internet search, web advertising, and electronic commerce. Judged only by consumer welfare, this doesn't seem to present a problem: their products are cheap or free, and extremely popular. Judged by concentrations of power, it's problematic: their control of essential platforms leaves individual merchants, app developers, content providers, and users next to no bargaining power since they have so few alternatives. Barriers to entry are high to insurmountable for potential competitors. They determine what artistic and political content billions of users share and see.

Before becoming FTC chair Ms. Khan had advocated either barring platform operators like Amazon from competing with users of that platform or regulating them like utilities. She would ban vertical mergersthat is, between two components of the same supply chain, for example, a supplier of content such as MGM and a distributor such as Amazononce a platform operator has reached a dominant size. She hasn't commented on Amazon since becoming chair. Nonetheless, citing these views, Amazon has asked Ms. Khan to recuse herself from FTC investigations of the company.

Under Ms. Khan's vision, the risk that a business structure could enable anti-competitive behavior matters more than evidence of that behavior such as higher prices.

But that approach carries risks of its own. Lack of evidence could lead to weak cases that fail in court. A federal judge dismissed a lawsuit by the FTC and most state attorneys-general for failing to establish that Facebook Inc. is a monopoly. Bills proposed by Democrats in the House of Representatives would lower the bar for winning such suits, but their fate is unclear. Barring firms from getting big could deprive consumers of the benefits that only big firms can deliver. Millions relied on Amazon's heft when the pandemic kept them out of stores.

And while neo-Brandeisians worry about abuse of corporate power, Mr. Bork's acolytes worry about abuse of antitrust authority. In 2018, the Department of Justice tried, unsuccessfully, to stop AT&T Inc. from acquiring Time Warner Inc., in a move many saw as motivated by then President Donald Trump's personal animosity toward CNN, a unit of Time Warner.

For all its flaws, antitrust governed by the consumer welfare standard is less at risk of politicization than beliefs about what's good or bad for democracy.