Long after Chairman Muris delivered his first speech in 2001, the bipartisan consensus regarding the appropriate analytical framework for antitrust enforcement persisted. Of course, antitrust has evolved in the ensuing years—enforcers have incorporated new economic learning into their analytical frameworks, courts have developed new legal precedent, and both law and economics have been applied to dynamic and evolving markets. In other words, the field is not static, and it is not meant to be, as the Supreme Court observed in Kimble v. Marvel Entertainment, LLC.6576 U.S. 446, 461 (2015) (recognizing the “dynamic potential” of the antitrust laws and the flexibility to “revise our legal analysis as economic understanding evolves and . . . to reverse antitrust precedents that misperceived a practice’s competitive consequences” (quoting Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 731–32 (1998))); see alsoState Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (describing the Supreme Court’s distinctive role under antitrust statutes “in recognizing and adapting to changed circumstances and the lessons of accumulated experience”).
Moreover, serious antitrust thinkers can and do disagree about whether to focus on avoiding Type 1 (false positive) or Type 2 (false negative) errors.7Frank H. Easterbrook, The Limits of Antitrust, 63 Tex. L. Rev. 1, 15 (1984) (“In which direction should these rules err? For a number of reasons, errors on the side of excusing questionable practices are preferable.”); Alan Devin & Michael Jacobs, Antitrust Error, 52 Wm. & Mary L. Rev. 75, 82 (2010) (“[C]ourts’ aversion to Type I errors should be relaxed in the presence of lawsuits initiated by the FTC or DOJ.”); see also Bilal Sayed, Thom Lambert, Alan Devlin, Jon Thorne, Bob Litan & Steve Cernak, Hearings on Competition and Consumer Protection in the 21st Century: Revisiting “The Limits of Antitrust” 225-321 (June 12, 2019) (revisiting Easterbrook’s seminal paper on Type I and Type II errors in antitrust). In other words, reasonable disagreement exists regarding whether antitrust enforcers should be more concerned about challenging procompetitive conduct as a violation of the antitrust laws (a Type I error) or taking a pass on challenging potentially anticompetitive conduct in an attempt to avoid chilling beneficial conduct (a Type II error).8Joshua D. Wright & Murat C. Mungan, The Easterbrook Theorem: An Application to Digital Markets, 130 Yale L.J. F. 621, 623 (2021) (“Type I errors, or ‘false positives,’ refer to false convictions; Type II errors refer to ‘false acquittals.’ In the antitrust context, a Type I error refers to a finding that conduct that is actually procompetitive violates the antitrust laws. A Type II error in the antitrust context refers to a failure to find antitrust liability for anticompetitive conduct.”). Several notable antitrust experts and former government officials advocate for more aggressive enforcement, including Carl Shapiro and Fiona Scott Morton, both of whom served as Deputy Assistant Attorney General for Economics at the Antitrust Division of the U.S. Department of Justice; former FTC Bureau of Economics Director Jonathan Baker; and Professor Steve Salop of Georgetown University Law Center.9See Steven C. Salop, Invigorating Vertical Merger Enforcement, 127 Yale L.J. 1962, 1963 (2018) (explaining why and how vertical merger enforcement should be invigorated); Jonathan B. Baker, The Case for Antitrust Enforcement, 17 J. Econ. Perspectives 27, 27–28 (2003); Giulio Federico, Fiona Scott Morton & Carl Shapiro, Antitrust and Innovation: Welcoming and Protecting Disruption, 20 Innovation Pol’y & Econ. 125, 138–52 (2020). But these and many other proponents of more aggressive antitrust enforcement would continue to ground antitrust enforcement in economic principles.10See, e.g., Salop, supra note 9, at 1979 (“Predicting whether competitive harms from foreclosure likely will occur can be aided by quantitative methodologies developed by economists over the last two decades.”).
In recent years, though, developments have signaled a potential unraveling of this consensus. Commentators urged the abandonment of the consumer welfare standard,11Tim Wu, After Consumer Welfare, Now What? The “Protection of Competition” Standard in Practice, Competition Pol’y Int’l Antitrust Chron., April 2018, at 1, 2; Marshall Steinbaum & Maurice E. Stucke, The Effective Competition Standard: A New Standard for Antitrust, 86 U. Chi. L. Rev. 595, 596 (2019); The Consumer Welfare Standard in Antitrust: Outdated or a Harbor in a Sea of Doubt?: Hearing Beforethe Subcomm. on Antitrust, Competition, and Consumer Rights of the S. Comm. on the Judiciary, 115th Cong. (2017) (statement of Barry C. Lynn, Executive Director, Open Markets Institute) [hereinafter Lynn Statement]. which has long served as the touchstone for antitrust enforcement not just in the United States but globally.12Elyse Dorsey, Geoffrey A. Manne, Jan M. Rybnicek, Kristian Stout & Joshua D. Wright, Consumer Welfare & the Rule of Law: The Case Against the New Populist Antitrust Movement, 47 Pepp. L. Rev. 861, 877 (2020) (“Today there is widespread, bipartisan support for the modern consumer welfare standard. That standard has been repeatedly embraced by majorities in Supreme Court decisions that recognize and embrace the economic foundation that the standard provides. In Reiter v. Sonotone, the Court recognized that the Sherman Act is a ‘consumer welfare prescription.’”). Democrats in the U.S. Senate issued the Better Deal, which proposed to flip the burden of proof for “the largest mergers” by making them “presumed to be anticompetitive.”13A Better Deal: Cracking Down on Corporate Monopolies, For the People 2 (2017), https://perma.cc/ZZM2-Y7KN (“[U]nder our new standards, the largest mergers would be presumed to be anticompetitive and would be blocked unless the merging firms could establish the benefits of the deal.”). Then-Professor Tim Wu published The Curse of Bigness: Antitrust in the New Gilded Age, which asserted that antitrust law “has lost sight of its goals” and “failed in its core mission.”14Tim Wu, The Curse Of Bigness: Antitrust In The New Gilded Age 18 (2018). Then-sitting FTC Commissioner Rohit Chopra criticized the FTC and its staff continuously, publicly, and in vitriolic terms, even labelling the FTC as “lax.”15Transforming the FTC: Legislation to Modernize Consumer Protection: Hearing Before the Subcomm. on Consumer Protection and Commerce of the H. Comm. on Energy and Commerce, 117th Cong. (2021) (opening statement of Rohit Chopra, Commissioner, Federal Trade Commission) [hereinafter Chopra Opening Statement] (“[T]he FTC has shown it is willing to be lax and forgiving.”). See also Dissenting Statement of Commissioner Rohit Chopra: Regarding Zoom Video Communications, Inc. (Nov. 6, 2020), https://perma.cc/9NCK-CPE9 (stating that the proposed consent does not provide “meaningful accountability” and that the FTC is not a credible enforcement agency); Statement of Commissioner Rohit Chopra: In re Facebook, Inc. (July 24, 2019) [hereinafter Chopra Facebook Statement], https://perma.cc/AYE3-K9AY (characterizing $5 billion settlement containing significant injunctive relief as “inadequate” and “flimsy”); Dissenting Statement of Commissioner Rohit Chopra: In the Matter of AbbVie, Inc. / Allergan plc (May 5, 2020), https://perma.cc/GEN7-DNRX (characterizing staff’s approach to reviewing pharmaceutical mergers as “narrow, flawed, and ineffective” while declining to provide guidance about what those reviews should examine); Jesse Eisinger, New Commissioner Says FTC Should Get Tough on Companies like Facebook and Google, ProPublica (May 14, 2018, 11:00 AM), https://perma.cc/JHF7-B4TT (“Declaring that ‘the credibility of law enforcement and regulatory agencies has been undermined by the real or perceived lax treatment of repeat offenders,’ newly installed Democratic Federal Trade Commissioner Rohit Chopra is calling for much more serious penalties for repeat corporate offenders.”). Despite the failure of massive regulatory regimes,16Cary Coglianese, Preface to Regulatory Breakdown: The Crisis of Confidence in U.S. Regulation, at vii (Cary Coglianese ed., 2012) (“Has the United States suffered a regulatory breakdown? The answer to this question would appear to be an obvious ‘yes.’”); see also Christine S. Wilson & Keith Klovers, The Growing Nostalgia for Past Regulatory Misadventures and the Risk of Repeating These Mistakes with Big Tech, 8 J. Antitrust Enforcement 10 (2020) (discussing the failures and bipartisan reforms to airline and railroad regulation). commentators began to praise those regimes and suggest that similar regulations be applied to Big Tech.17See Majority Staff of the Subcomm. on Antitrust, Com. & Admin. L. of the H. Comm. on the Judiciary, 116th Cong., Investigation of Competition in Digital Markets 7 (2020) [hereinafter Majority Staff Report]; id. at 380 (“In the railroad industry, for example, a congressional investigation found that the expansion of common carrier railroads’ into the coal market undermined independent coal producers, whose wares the railroads would deprioritize in order to give themselves superior access to markets. In 1893, the Committee on Interstate and Foreign Commerce wrote that ‘[n]o competition can exist between two producers of a commodity when one of them has the power to prescribe both the price and output of the other.’ Congress subsequently enacted a provision to prohibit railroads from transporting any goods that they had produced or in which they held an interest.” (footnotes omitted)); id. at 382 (“The 1887 Interstate Commerce Act, for example, prohibited discriminatory treatment by railroads.”); id. at 383 (“Historically, Congress has implemented nondiscrimination requirements in a variety of markets. With railroads, the Interstate Commerce Commission oversaw obligations and prohibitions applied to railroads designated as common carriers.”). The House Judiciary Committee, ostensibly focused on large tech companies, issued proposals that extended far beyond Big Tech—calling more generally for reinvigoration of the essential facilities doctrine, removal of the recoupment prong for predatory pricing, and so on.18Id. at 397–98 (“[T]he Subcommittee recommends that Congress consider revitalizing the ‘essential facilities’ doctrine, the legal requirement that dominant firms provide access to their infrastructural services or facilities on a nondiscriminatory basis. To clarify the law, Congress should consider overriding judicial decisions that have treated unfavorably essential facilities- and refusal to deal-based theories of harm.” (footnotes omitted)); id. at 397 (“Courts, however, have introduced a ‘recoupment’ requirement, necessitating that plaintiffs prove that the losses incurred through below-cost pricing subsequently were or could be recouped. Although dominant digital markets can recoup these losses through various means over the long term, recoupment is difficult for plaintiffs to prove in the short term. Since the recoupment requirement was introduced, successful predatory pricing cases have plummeted. The Subcommittee recommends clarifying that proof of recoupment is not necessary to prove predatory pricing or predatory buying, overriding the Supreme Court’s decisions . . . .” (footnotes omitted)). And when Chair Lina Khan arrived at the FTC, she immediately jettisoned traditional procedures and norms that had facilitated both bipartisanship and sound decision-making.19Dissenting Statement of Commissioner Christine S. Wilson: Open Commission Meeting (July 1, 2021), [hereinafter Wilson July 1 Statement], https://perma.cc/FGP9-UGLF (“Unfortunately, the format the Chair has chosen for this meeting omits our knowledgeable staff and precludes a dialogue among the Commissioners. A bipartisan and collaborative approach has been the hallmark of the FTC for years and would be welcome today, particularly given the importance of the matters being considered. We have arrived at the consumer welfare standard, a rulemaking process that respects objectivity and public input, and an appreciation for our limited jurisdiction for very specific reasons. Those reasons are worth discussing, but that requires a thoughtful process. And when we have chaos instead of thoughtful process, it is the American consumer who will suffer.”); Oral Remarks of Commissioner Christine S. Wilson: Open Commission Meeting (July 21, 2021) [hereinafter Wilson July 21 Remarks], https://perma.cc/F4VP-YZXQ (“Each Commissioner brings varied perspectives and policy preferences to this job that enable the body to consider issues in a far more comprehensive way than any one of us would or could on his or her own. FTC staff have similarly varied perspectives, professional experiences, and comparative advantages. While we may not always agree with each other or with staff, our analysis is deeper and richer because of staff’s recommendations and insights, particularly when our analyses diverge. Our agency has come under attack from a variety of quarters in recent years. In the face of these attacks, we could be proud of our robust dialogue and thorough analysis at every stage of each matter and proceeding. Crushing internal dialogue diminishes the quality of our decision making and gives our detractors more ammunition. Process matters, so let’s get it right.”). One noteworthy example came in the form of so-called “zombie votes.” Leah Nylen, ‘Zombies’ to the Rescue: The Arcane Voting Rule that Could Save Dems’ Antitrust Agenda, Politico (Nov. 8, 2021, 4:31 AM), https://perma.cc/8WCL-GDRT; Josh Sisco, Staff Exits Complicate FTC Chief Lina Khan’s Agenda, The Information (Oct. 5, 2021, 6:01 AM), https://perma.cc/J5MQ-ULBG.
These developments have occurred against a backdrop of accusations levied at the antitrust community. Defenders of the bipartisan consensus approach have been labeled as not just wrong, but evil and corrupt.20Alison Griswold, Is Monopolization Inevitable in the Digital Era?, Quartz (Nov. 11, 2019), https://perma.cc/Z444-PV8K (interviewing Matthew Stoller, who states, “I think the people that don’t want to call them monopolies are a small club of insiders who are corrupt. The antitrust establishment is corrupt.”); Matthew Stoller (@matthewstoller), Twitter (Mar. 23, 2021, 10:04 AM), https://perma.cc/7RXE-F8ZF (“If they had the evidence, why didn’t they bring the suit? Three reasons. One, corruption. Everyone is on the take. The only former FTC Commissioner who voted on the case and does not today receive big tech money is deceased.”); Matthew Stoller (@matthewstoller), Twitter (Mar. 18, 2020, 10:23 PM), https://perma.cc/EHQ7-VAA4 (“It’s evil anyone would think M&A should be a priority when we are facing economic collapse and prospect of mass deaths. The right approach is to just stop M&A during a crisis or lapse in agency capacity. Let’s not invite companies to exploit the crisis and go on buying sprees.”). A prime example of this condemnation occurred at the 2022 Antitrust Section Spring Meeting of the American Bar Association. During the Chair’s Showcase, Barry Lynn, the Executive Director of the Open Markets Institute and a key mentor of Chair Khan’s, “rattled off a list of social ills, including outsized influence of tech companies, environmental problems and wealth inequality,” and told attendees that “[t]his all—to a great degree—is your doing. It is your doing because you conspired to use a false science, an idiot science, to blind the law to dangerous concentrations of power, to blind the citizenry to the fist of monopoly.”21See Josh Sisco, An Agitator Disrupts an Antitrust Garden Party, The Information (Apr. 12, 2022, 7:00 AM), https://perma.cc/RP5Z-MYER. Another journalist reported that Barry Lynn “took to the stage and accused everyone in the meeting hall of working to take down American Democracy via their support of the consumer welfare standard. Lynn compared antitrust practitioners to Vladimir Putin and Xi Jinping. It was all quite something to behold.”22Reuben Miller, CTFN Merger Observer Weekend, CTFN (Apr. 9, 2022), https://perma.cc/A9MD-MCZB. Professor Zephyr Teachout, a co-panelist with Lynn and fellow mentor of Chair Khan’s, conveyed the same themes in somewhat more diplomatic terms.23Xu Yuan & Michael Acton, Antimonopoly Law Is Key to Solving ‘Great Democratic Crisis,’ New York Official Teachout Says, MLex (Apr. 7, 2022, 1:22 PM), https://perma.cc/TXW9-CPXC(“‘We are in, globally and domestically, a moment of great democratic crisis,’ Zephyr Teachout, senior counsel for economic justice in the New York AG’s office, said at the ABA Antitrust Spring Meeting today, pointing to reports about Amazon banning workers from using certain words on a company app as an example of how monopolies affect individual freedom. ‘Antimonopoly tools are some of the most important tools for addressing the crisis of power and freedom,’ Teachout said.”); Michael Acton, Antitrust Law Can Be Reclaimed from Courts by Elected Lawmakers, US Judge Says, MLex (Apr. 7, 2022), https://perma.cc/SQ57-S2AH (“Wood was sitting on a panel with Zephyr Teachout, senior counsel at New York’s Office of the Attorney General, and pushed back against Teachout’s suggestion that a core purpose of US antitrust law is to preserve democracy and the dignity of the individual. ‘Maybe this is the way that judges are supposed to look at things, but I think it’s not at all a given that antitrust laws are about the preservation of democracy and dignity,’ Wood said. The language of the statutes, after all, applies to very specific behavior by firms, regardless of the political motives of those who passed them, she reasoned.”). Chair Khan worked on Zephyr Teachout’s gubernatorial campaign and co-authored an article on politics in market structure. Press Release, Colum. L. Sch., Antitrust Scholar Lina Khan Joins Faculty (Dec. 2, 2020), https://perma.cc/LK5U-59QS; Zephyr Teachout & Lina Khan, Market Structure and Political Law: A Taxonomy of Power, 9 Duke J. Const. L. & Pub. Pol’y 37 (2014).
At first glance, these varied developments may seem unrelated. But this Article offers a hypothesis: these developments are attributable to a unifying worldview that draws heavily on concepts from Marxism and Critical Legal Studies. To support this hypothesis, the Article examines a variety of concepts through the lenses of Western Liberal thought, Marxism, Critical Legal Studies (“CLS”), and the Neo-Brandeisians.24The authors wish to acknowledge the Truth on the Market blog posts of Lazar Radic, who has made valuable observations on Marxism and competition. Lazar Radic, Political Philosophy, Competition, and Competition Law: The Road to and from Neoliberalism, Part 1, Truth on the Market (Nov. 23, 2021), https://perma.cc/52GA-SUXN; Lazar Radic, Political Philosophy, Competition, and Competition Law: The Road to and from Neoliberalism, Part 2, Truth on the Market (Feb. 03, 2022) [hereinafter Radic, Neoliberalism Part 2], https://perma.cc/4HAX-4DNJ. For a comparison of liberalism to CLS theories outside of antitrust law, see Jeffrey J. Pyle, Race, Equality and the Rule of Law: Critical Race Theory’s Attack on the Promises of Liberalism, 40 B.C. L. Rev. 787 (1999).
Part I discusses the Neo-Brandeisians’ apparent contempt for key concepts that undergird classical liberalism, including the rule of law and due process, a disdain they share with Marxists and CLS scholars. Part II identifies parallels among Neo-Brandeisian, Marxist, and CLS views with respect to additional economic and political issues. Finally, Part III discusses the perspective of Marx and his theoretical forebears on the benefits of destruction and revolution, and hypothesizes that this view may explain the Neo-Brandeisians’ willingness to inflict harm on the FTC as an institution.
I. Neo-Brandeisian Rejection of Classical Liberalism
Part I discusses the Neo-Brandeisian criticisms of core classical liberalism principles, specifically rule of law and due process. The Neo-Brandeisian view shares this belief with Marxist and CLS scholars, suggesting a common view that rejects rule of law and due process.
A. Rule of Law
The founders of the United States grounded our country in the key tenets of classical liberalism: individual rights, consent of the governed, periodic elections, public deliberation, democracy, equality, guaranteed liberties, and branches of government that check and balance one another.25See The Declaration of Independence para. 2 (U.S. 1776). These principles are enshrined in our Constitution and enforced by judges under the rule of law, another key tenet of classical liberalism.26U.S. Const. art. I, § 2, cl. 1 (“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”); id. art. III, § 1, cl. 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”); id. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”); id. amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”). The rule of law is “a principle under which all persons, institutions, and entities are accountable to laws that are: [p]ublicly promulgated[,] [e]qually enforced[,] [i]ndependently adjudicated[,] [a]nd consistent with international human rights principles.”27Admin. Off. of the U.S. Courts, Overview – The Rule of Law,
https://perma.cc/HB8W-P2BV. Friedrich Hayek described the rule of law as binding the government to “rules fixed and announced beforehand—rules which make it possible to foresee with fair certainty how the authority will use its coercive power in given circumstances.”28F.A. Hayek, The Road to Serfdom 112 (Bruce Caldwell ed., 2007).
While our civics classes taught us to prize the rule of law, Marxists have a very different view. Marx characterized society in terms of its “base” and its “superstructure,” akin to a foundation and the building that rests on it.29Karl Marx, Preface to A Contribution to the Critique of Political Economy (1895), reprinted in Marx and Modernity: Key Readings and Commentary 66 (Robert J. Antonio ed., 2003) (“In the social production of their existence, men inevitably enter into definite relations, which are independent of their will, namely relations of production appropriate to a given stage in the development of their material forces of production. The totality of these relations of production constitutes the economic structure of society, the real foundation, on which arises a legal and political superstructure and to which correspond definite forms of social consciousness.”). For Marx, the base pertained to the prevalent economic mode of production in a society.30Id. (“The mode of production of material life conditions the general process of social, political and intellectual life. It is not the consciousness of men that determines their existence, but their social existence that determines their consciousness.”). The superstructure was comprised of the non-economic aspects of society, including law, politics, media, family, culture, philosophy, and so on.31Id. Marx believed that the law is an integral part of the superstructure and, consequently,
is clearly an instrument of the de facto ruling class: it both defines and defends these rulers’ claims upon resources and labor-power—it says what shall be property and what shall be crime—and it mediates class relations with a set of appropriate rules and sanctions, all of which, ultimately, confirm and consolidate existing class power. Hence the rule of law is only another mask for the rule of a class.32E.P. Thompson, The Rule of Law, in Marxism and Law 130–31 (Piers Beirne & Richard Quinney eds., 1982).
Or, more succinctly, Marx asserted that the rule of law “is a bourgeois notion that merely reproduces the inequality of unequal labor.”33Piers Beirne & Richard Quinney, Introduction to Marxism and Law, supra note 32, at 6 (“In [Marx’s] Critique of the Gotha Programme, Marx informs us that equal right (‘the rule of law’) is a bourgeois notion that merely reproduces the inequality of unequal labor; equal right is a ‘defect’ that cannot be crossed until the higher phase of communism.” (footnote omitted)); Karl Marx, Critique of the Gotha Programme 15 (Foreign Language Press 1st ed., 1972) (1875) (“But one man is superior to another physically or mentally and so supplies more labor in the same time, or can work for a longer time; and labor, to serve as a measure, must be defined by its duration or intensity, otherwise it ceases to be a standard of measurement. This equal right is an unequal right for unequal labor. It recognizes no class differences, because everyone is only a worker like everyone else; but it tacitly recognizes unequal individual endowment and thus productive capacity of the worker as a natural privilege. It is, therefore, a right to inequality, in its content, like every right. Right by its very nature can consist only in the application of an equal standard; but unequal individuals (and they would not be different individuals if they were not unequal) are measurable only by the same standard in so far as they are brought under the same point of view, are taken from one definite side only, for instance, in the present case, are regarded only as workers, and nothing more is seen in them, everything else being ignored. Further, one worker is married, another is not; one has more children than another, and so on and so forth. Thus, with an equal performance of labor, and hence an equal share in the social consumption fund, one will in fact receive more than another, one will be richer than another, and so on. To avoid all these defects, right instead of being equal would have to be unequal.” (emphases omitted)).
Interesting parallels exist between what Marx taught and what CLS scholars believe. For example, Professor Mark Tushnet, a prominent CLS scholar, wrote that from a CLS perspective, the rule of law is an “ideological project” that serves as an instrument of oppression by the group that happens to be in power.34Mark Tushnet, Critical Legal Studies and the Rule of Law, in The Cambridge Companion to the Rule of Law 328, 329 (Jens Meierhenrich & Martin Loughlin eds., 2021) (“From a critical legal studies perspective, the [The World Justice Project’s 2016 ‘Rule of Law’] Index shows that the ‘rule of law’ is an ideological project. Like all successful ideological projects, it identifies some things that are, in E.P. Thompson’s famous words, ‘unqualified human good[s].’ The rule of law in this aspect guarantees that those holding power (perhaps only those holding government power) not act arbitrarily in adversely affecting the interests of others. Other aspects of the rule of law support the distinctive interests of the powerful, as indicated by the inclusion of property in the Index’s list of universal principles. So, for example, supporters of this version of the rule of law invoke it against radicals who seek to replace regimes that fall within some ‘acceptable’ range, while mounting no such objections to similar extralegal efforts to displace regimes outside that range (Iran in 1953, perhaps Venezuela today). What counts as ‘acceptable’ is, again, ideologically defined.” (footnote omitted)). In a related vein, CLS scholars challenge the concept of a value-neutral legal process.35See Robert W. Gordon, Some Critical Theories of Law and Their Critics, in The Politics of Law: A Progressive Critique 649 (David Kairys ed., 3d ed., 1998). Instead, they argue that the system is built by elites who have a stake in rationalizing their dominant power positions, so they “define rights in a way as to reinforce existing hierarchies of wealth and privilege.”36Id. (“The systems, of course, have been largely built by elites who have thought they had some stake in rationalizing their dominant power positions, so at any given time they have tended to define rights in such a way as to reinforce existing hierarchies of wealth and privilege. Even more important, such system building has the effect of making the social world as it is come to seem natural and inevitable.”). Or, more succinctly, law is politics, and politics is power.
Neo-Brandeisians view the law, and specifically the field of antitrust law, in the same way that Marx and CLS scholars view the rule of law. Specifically, the Neo-Brandeisians reject the belief that antitrust law is above or outside of politics.37Sandeep Vaheesan, The Twilight of the Technocrats’ Monopoly on Antitrust?, 127 Yale L.J. F. 980, 981–82 (2018) [hereinafter Vaheesan, Twilight of the Technocrats’ Monopoly], (“While the champions of consumer welfare may tout its ‘apolitical’ character, the goals of antitrust are unavoidably political. A market economy requires extensive state action and so cannot be purged of political judgments. Seen as a political tool, antitrust law can be interpreted to deepen existing inequalities in wealth and power, maintain existing distributional arrangements, or create a more equitable society. What it cannot be is ‘apolitical.’ The questions confronting us, therefore, are who should decide the goals of antitrust – technocrats or democratically-elected representatives in Congress – and what those goals should be. Given that antitrust law is and will be political, whatever its overarching philosophy, consumer welfare should enjoy no position of privilege on the grounds that it is ‘apolitical.’ It can and should be examined against other political interpretations.” (footnote omitted)); Sandeep Vaheesan (@sandeepvaheesan), Twitter (Mar. 29, 2022, 9:58 AM), https://perma.cc/3PMC-LLBJ (“Considering that the law is the basis of billionaires’ power and wealth (just as it was the basis of feudal lords’ power and wealth), maybe we should use the law to claw that privilege back.”). In fact, according to Neo-Brandeisians, markets themselves are political.38Vaheesan, Twilight of the Technocrats’ Monopoly, supra note 37, at 986 (“A market economy is the product of extensive state action and so is inevitably political. The conception of the market as a ‘spontaneous order’ is a useful construct for defenders of the status quo because it lends legitimacy to the current order and suggests that intervention is futile. This model, however, is a myth and bears no correspondence to actual markets. Most fundamentally, state action supports a market economy . . . .” (foonote omitted)). Sandeep Vaheesan of the Open Markets Institute, a former colleague and co-author of Chair Khan, wrote that because “[t]he state constructs and structures markets through legal rules[,] [t]he market is not a force of nature, as the law and economics ideology underpinning antitrust presumes.”39Sandeep Vaheesan, The Profound Nonsense of Consumer Welfare Antitrust, 64 Antitrust Bull. 479, 494 (2019). Instead, he writes, the idea of markets “as a ‘spontaneous order’ is a useful construct for defenders of the status quo because it lends legitimacy to the current order.”40Vaheesan, Twilight of the Technocrats’ Monopoly, supra note 37, at 986.
Chair Khan agrees that markets are political.41Teachout & Khan, supra note 23, at 37 (“Market structure is deeply political.”). During an interview with Stuart Varney, she went even further, stating that “all decisions are political insofar as government agencies are bringing them.”42Fox Business Networks, Break Up Amazon as a Monopoly?, YouTube (June 23, 2017) [hereinafter Varney Interview], https://perma.cc/6KT4-QPA5 (Varney asks Khan at the 2:33 mark: “To go after Amazon would be a political decision. Not a market decision. Not an economic decision. A politician would have to instigate this.” Khan replies, “I think all decisions are political in so far as government agencies are bringing them.”). Individuals who have served at the FTC or Department of Justice (“DOJ”) may reject this characterization, observing that the agencies and courts make decisions based on sound economics and legal precedent. But Matt Stoller of the American Economic Liberties Project, another former colleague and staunch ally of Chair Khan, argues that “[t]he point of economics as a discipline is to create a language and methodology for governing that hides political assumptions from the public.”43Matt Stoller, What Is the Point of Economics?, Big (Jan. 10, 2020),
https://perma.cc/TPN3-5QF8. A recent piece in the Yale Law Journal conveyed a similar perspective:
“Neoliberal” premises undergird many fields of law and have helped authorize policies and practices that reaffirm the inequities of the current era. In particular, market efficiency, neutrality, and formal equality have rendered key kinds of power invisible . . . . [resulting in] a pervasive view of law that encases “the market” from claims of justice and conceals it from analyses of power.44Jedediah Britton-Purdy, David Sing Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1784 (2020).
In other words, the Neo-Brandeisians reject the characterization of antitrust law as value neutral and relatively free from political interference. Vaheesan declared starkly that “antitrust law is and will be political.”45Vaheesan, Twilight of the Technocrats’ Monopoly, supra note 37, at 982; see also Wu, supra note 14, at 130 (stating that “big mergers arepolitical”). And it follows naturally that if antitrust is not value neutral, neither is the consumer welfare standard.
In sum, the Neo-Brandeisians, drawing on refrains from Marx and CLS scholars, believe that antitrust enforcement is a politicized exercise that for decades has served as a tool of oppression to reinforce existing inequities.46See supra Section I.A. This perspective appears to explain several aspects of the Neo-Brandeisian worldview.
If antitrust is indeed a tool of oppression, it makes sense that the Neo-Brandeisians paint those who helped shape the status quo, or who now defend it, as not just wrong, but evil and corrupt.47See Sisco, supra note 19; Miller, supra note 22. It does not matter if one is a Democrat or Republican—the Neo-Brandeisians view enforcers of both parties from the last forty years as corrupt.48Sandeep Vaheesan, How Contemporary Antitrust Robs Workers of Power, L. & Pol. Econ. Proj., (July 19, 2018), https://perma.cc/H962-KMPU (“Antitrust enforcers have both failed to protect workers against employer power and thwarted independent contractors’ efforts to build collective power. By accommodating capital and policing labor, antitrust has robbed workers of both exit and voice. Far from being unexpected or unintended, antitrust law’s part indifference, part hostility toward workers is another predictable result of the close nexus between big business and the community of antitrust specialists.”). One basis for frequent allegations of corruption pertains to the revolving door. A report co-authored by Rohit Chopra was released on the day he was sworn in as an FTC Commissioner. The report took a far-reaching view of conflicts of interest.49Unstacking The Deck: A New Agenda to Tame Corruption in Washington, Roosevelt Inst. (May 2018), https://perma.cc/Q5FL-QUM8. Specifically, he asserted that even in the absence of direct financial interests, the possibility of future employment in the private sector could influence the enforcement decisions of government employees.50Id. at 5 (“Anti-corruption laws in the United States put a high premium on quid pro quo, but it would be a mistake to view corruption solely through these exchanges—less obvious forms of influence can also be deeply pernicious. When government officials take actions where they have a direct financial interest, they can be criminally prosecuted. But it is difficult to know—let alone prove—whether the prospect of future financial gain led to an official government action.”); id. at 7 (“There are three primary issues and concerns with the revolving door. First, government officials’ actions may be motivated by the prospect of future employment with an economic interest, rather than the public interest.”); id. at 23 (“Government officials, especially in the executive branch, are restricted from participating in decisions that impact their present financial interests. But little has been done to ensure that their decisions aren’t skewed to advance their future employment and financial interests.”). In his new capacity as Consumer Financial Protection Bureau Director, former FTC Commissioner Chopra reiterated this view, explaining that “financial regulators [are] clueless and often corrupt lawyers and economists” who are merely auditioning for future jobs in the private sector.51Rohit Chopra, Reining in Repeat Offenders: 2022 Distinguished Lecture on Regulation, University of Pennsylvania Law School (Mar. 28, 2022), https://perma.cc/CT4C-87UG (“While here—and I was hardly alone on this point—I viewed financial regulators as clueless and often corrupt lawyers and economists. Government officials were often seen as auditioning for a future job in finance to exploit their inside knowledge to help dominant financial firms extract special favors and evade accountability for wrongdoing, even when they violate the law repeatedly.”). But see Ed deHaan, Simi Kedia, Kevin Koh & Shivaram Rajgopal, Does the Revolving Door Affect the SEC’s Enforcement Outcomes?, J. Acct. & Econ., Nov.–Dec. 2015, at 65, 66 (finding the intensity of enforcement efforts, proxied by the fraction of losses collected as damages, the likelihood of criminal proceedings and the likelihood of naming the CEO as a defendant, are higher when the SEC lawyer leaves to join law firms that defend clients charged by the SEC). Chair Khan expressed a similar view, writing that “the Department of Justice enforcer who aspires eventually to join J.P. Morgan may hesitate to antagonize a potential employer.”52Teachout & Khan, supra note 23, at 44.
The disdain of the Neo-Brandeisians is not limited to individual practitioners. The Antitrust Section of the American Bar Association is similarly viewed as part of the establishment, the so-called ruling class, that helps shape antitrust law and policy.53Matthew Stoller (@matthewstoller), Twitter, (June 9, 2017, 12:57 PM), https://perma.cc/XS2Z-U9ZD(“Main support for monopoly is BigLaw. Bipartisan ABA Antitrust Section rejects both Trump and Clinton on need for more vigorous antitrust.”). It, too, is therefore complicit in the oppression of the underdog.54See id. This view might explain why Chair Khan kept the ABA Antitrust Section at arm’s length.55Miller, supra note 22 (“Khan and Jonathan Kanter of the Department of Justice did not themselves deign to outline their worldview, and were conspicuously absent from any substantive role in the most important conversation taking place in the field. While Kanter had come down with Covid-19 and was forced into isolation, Khan—who had interacted with Kanter—decided to self-isolate and only virtually attend her singular panel, despite having attended at least one party two nights prior. Generally speaking, one would hope that powerful public officials that are leading reform bordering on revolution might feel some level of accountability and explain themselves. While Lynn and supporters like Zephyr Teachout endeavored to move the antitrust conversation into an expanded universe—admirably strong in their bravery and commitment—the sitting officials responsible for prosecuting it essentially played hooky. An opportunity for that movement may have been wasted.”).
This perspective also condemns the FTC and its staff as complicit in the oppression.56See Chopra, supra note 51(“There has been a lot of noise by government officials that big financial institutions are not ‘too big to jail,’ but the way government has been treating them suggests otherwise.”). That might explain why former Commissioner Chopra expressed such a dim view of not just the FTC, but of FTC staff.57See sources cited supra note 15. He asserted that they were “captured” by the industries they oversaw.58The Role of Data and Privacy in Competition: Hearing on Online Platforms and Market Power, Part 3 Before the Subcomm. on Antitrust, Comm. & Admin. L. of the H. Comm. on the Judiciary, 116th Cong. (2019) (opening statement of Rohit Chopra, Commissioner, Federal Trade Commission) (“And all too often, the government is too captured by dominant incumbents that used their power to dictate their own preferred policies.”). Indeed, while a sitting commissioner, Chopra suggested that the FTC’s Inspector General review the work of staff with respect to pharmaceutical mergers.59Statement of Commissioner Rohit Chopra Regarding the Review of the FTC’s Pharmaceutical Merger Enforcement Program (May 11, 2021), https://perma.cc/4SH5-FDWU (“I hope that the agency’s Inspector General will conduct a programmatic review of the pharmaceutical merger enforcement program so that the public can benefit from an independent perspective on opportunities for reform.”). And he told Congress that it should view with suspicion agency personnel’s attendance at conferences and participation in panels.60Chopra Opening Statement, supra note 15 (“In addition, Congress should also determine whether existing law regarding so-called sponsored travel needs to be updated. Under existing law, senior government officials can be sponsored by non-federal sources to travel to conferences and retreats, largely attended by—and indirectly paid for—by those representing dominant firms, especially Big Tech. These events sometimes include closed-door panel discussions that are not open to the media or the public, giving conference organizers and their patrons a chance to gather intelligence about emerging policies and priorities. This non-public information can be exploited by investment funds that trade on and profit from these closed-door panels. Small businesses, startups, and the general public can’t easily access these private panel junkets and don’t have the resources to organize them on their own.”).
Could this view have been the driving force behind the decision to muzzle staff? Chair Khan prohibited staff from attending and speaking at conferences, despite the fact that this participation promotes transparency and certainty regarding government enforcement intentions and facilitates legal compliance.61Leah Nylen & Betsy Woodruff Swan, FTC Staffers Told to Back out of Public Appearances, Politico (July 6, 2021, 9:12 PM), https://perma.cc/Q6TH-WSKF. Perhaps this also explains why Chair Khan, particularly during the early months of her tenure, was reluctant to seek the input of staff on policy issues62See Wilson July 21 Remarks, supra note 19 (“To reach conclusions about policy matters, the Commission should proceed in the manner that has served the agency well for decades. I benefit greatly from a process that facilitates full consultation with staff, through oral briefings and comprehensive memoranda, as well as a robust dialogue among the Commissioners. News reports have revealed that FTC staff has been muzzled externally—agency personnel are forbidden from appearing at any public events. Unfortunately, it appears that staff is being silenced internally, as well. Perhaps this is due to a view some have expressed that FTC staff is unimaginative and has failed to advance the Commission’s mission effectively for decades.” (footnote omitted)).—a posture that would make sense if staff were viewed as part of the corrupt establishment. Staff have been marginalized under Chair Khan’s leadership in numerous ways,63Christine S. Wilson, Comm’r., Fed. Trade Comm’n, The Neo-Brandeisian Revolution: Unforced Errors and the Diminution of the FTC, Remarks for the ABA Antitrust Law Section’s 2021 Fall Forum (Nov. 9, 2021), https://perma.cc/5YJS-527E. causing many experienced and respected professionals to leave the agency.64See Alex Wilts, WilmerHale Nabs Two Senior Officials from FTC, Global Competition Rev. (Jan. 19, 2022), https://perma.cc/MN6U-AJXF; Sara Merken, Wilson Sonsini Adds Another FTC Privacy Pro to Growing Practice, Reuters (Jan. 10, 2022, 1:46 PM), https://perma.cc/7AQM-6LH8; Leah Nylen, FTC’s Top Economist Resigned amid Dispute over Pharma Study, Politico (Feb. 25, 2022, 12:54 PM), https://perma.cc/EAE6-ERVP; Ruiqi Chen, Cravath Hires Federal Trade Commission Official Zach as Partner, Bloomberg (Dec. 16, 2021, 10:00 AM),https://perma.cc/SR9H-EFCM.
Neo-Brandeisians have undermined transparency and predictability in other ways, as well. These actions erode certainty regarding the rules of the road, a central function of the rule of law. For example, the Neo-Brandeisians at the FTC rescinded the section 5 policy statement and foreshadowed a more expansive enforcement agenda while failing to issue a new policy explaining this agenda.65Dissenting Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson on the “Statement of the Commission on the Withdrawal of the Statement of Enforcement Principles Regarding ‘Unfair Methods of Competition’ Under Section 5 of the FTC Act” (July 9, 2021) [hereinafter Withdrawal Dissent], https://perma.cc/QMQ3-9WA5. They withdrew support for the Vertical Merger Guidelines and characterized them as insufficiently aggressive while declining to provide guidance on where to draw the new lines.66Dissenting Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson Regarding the Commission’s Rescission of the 2020 FTC/DOJ Vertical Merger Guidelines and the Commentary on Vertical Merger Enforcement (Sept. 15, 2021), https://perma.cc/BZ7W-AD7F. And they have failed to challenge mergers within the requisite statutory timeframes, instead issuing threatening warning letters as waiting periods expire.67Statement of Commissioner Christine S. Wilson Regarding the Announcement of Pre-Consummation Warning Letters (Aug. 9, 2021), https://perma.cc/77VS-GH9Q.
Ironically, then-Professor Wu criticized “the incredibly secretive and technical nature” of the merger review process in The Curse of Bigness.68Wu, supra note 14, at 129. Merger guidelines explain the antitrust agencies’ analytical approach to reviewing mergers and shed light on the process.69E.g., U.S. Dep’t of Just. & Fed. Trade Comm’n, Horizontal Merger Guidelines 1–2 (2010). Similarly, policy statements provide guidance regarding enforcement intent with respect to other business activities.70E.g., Statement of Enforcement Principles Regarding “Unfair Methods of Competition” Under Section 5 of the FTC Act, 80 Fed. Reg. 57,055 (Sep. 21, 2015). Withdrawing existing guidance and leaving a vacuum does nothing to dispel the allegedly “secretive” nature of the investigative process. Instead, these actions create the opportunity for the arbitrary exercise of government power—precisely the harm our Founding Fathers sought to avoid.71See The Federalist No. 47 (James Madison).
Of course, if aggressive antitrust enforcement that reins in big companies is good, antitrust enforcers certainly have been a force for good in recent decades.72Christine Wilson, Comm’r, Fed. Trade Comm’n, Governing Is Hard: Antitrust Enforcement in the First Year of the Biden Administration (Jan. 26, 2022), https://perma.cc/SJH6-M2B2. In fact, antitrust enforcement in 2020 (under President Donald J. Trump and Chairman Joseph J. Simons) hit its highest numbers in decades.73Id. But CLS scholars would dismiss these successes as a smokescreen.74See Gordon, supra note 35, at 646–47. They argue that to maintain stability and keep the oppressed from revolting, the “law must be perceived to be approximately just, so the ruling class cannot win all the time.”75Id. Similarly, the Neo-Brandeisians ignore the fact that the FTC has delivered significant benefits to American consumers in recent decades.76See Remarks on Signing an Executive Order on Promoting Competition in the American Economy and an Exchange with Reporters, 2021 Daily Comp. Pres. Doc. 1, 3 (July 9, 2021). Instead, they characterize the last forty years as a “failed experiment.”77Id. (“We’re now 40 years into the experiment of letting giant corporations accumulate more and more power. . . . I believe the experiment failed.”). The authors take no position on whether President Biden is or is not a Neo-Brandeisian. It is possible this and other characterizations originate from Tim Wu, a Neo-Brandeisian and Special Assistant to the President for Technology and Competition Policy.
B. Due Process
Classical liberalism is premised on the rights of the individual, liberty, consent of the governed, and equality before the law.78See George H. Smith, The System of Liberty: Themes in the History of Classical Liberalism 1–2 (2013). To protect these rights, liberalism is grounded in process.79See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 100–01 (1980). Professor John Hart Ely wrote in Democracy and Distrustthat “[w]hat has distinguished [the American Constitution], and indeed the United States itself, has been a process of government, not a governing ideology.”80Id. at 101 (emphasis added) (footnote omitted). CLS, on the other hand, views due process as preventing benevolent change.81See Jonathan Turley, The Hitchhiker’s Guide to CLS, Unger, and Deep Thought, 81 Nw. U. L. Rev. 593, 595 (“CLS’ broad attack on legal discourse [is] ‘itself a form of political domination and a barrier to progressive change’ . . . .”(quoting Karl E. Klare, The Quest for Industrial Democracy and the Struggle Against Racism: Perspectives from Labor Law and Civil Rights Law, 61 Or. L. Rev. 157, 162 (1982)); Tushnet, supra note 34, at 330–31 (“The most prominent portrayal of the rule of law in canonical critical legal studies works is a relatively brief discussion by Morton Horwitz . . . . Horwitz wrote that the rule of law ‘undoubtedly restrains power, but it also prevents power’s benevolent exercise.’ He agreed that it ‘creates formal equality . . . but it promotes substantive inequality by creating a consciousness that radically separates law from politics’ . . . .”). Procedural rules serve as speed bumps on the road to justice. Because “procedural rules reflect political choices,” they can be tossed aside to achieve desired substantive change.82Martha Minow, Politics and Procedure, in The Politics of Law: A Progressive Critique, supra note 35, at 79, 87 (“Procedural rules are a kind of scaffold supporting the constant effort to build and rebuild justice. Too much attention to preserving the scaffold misses the point of the enterprise, and the scaffold can and should be moved around as needed by the larger project. The scaffold should be stable enough to stand upon while remaining capable of being dismantled and reassembled as needs change.”); id. at 92 (“Procedural rules reflect political choices . . . . Procedural rules deserve respect regardless of their effect on the results in a particular case, but sometimes procedural rules should bend in light of substantive concerns.”).
In their desire to remake antitrust law, the Neo-Brandeisians have embraced a similar disregard for process and norms. They know what the utopian antitrust regime looks like, and they are willing to toss aside procedural niceties to get there.83See, e.g., 21st Century Antitrust Reforms and the American Worker: Hearing on Reviving Competition Part 4 Before the Subcomm. on Antitrust, Com. & Admin. L. of the H. Comm. on the Judiciary (Sept. 28, 2021) (statement of Christine S. Wilson, Commissioner, Federal Trade Commission), https://perma.cc/VQZ6-QY2K. For example, new FTC leadership undertook abrupt and sweeping policy changes with little to no input from knowledgeable staff or the public and with essentially no notice to minority commissioners.84Id. (providing numerous examples of FTC leadership minimizing meaningful dialogue among Commissioners, between Commissioners and staff, and between the Commission and its stakeholders); Wilson July 1 Statement, supra note 19; Wilson July 21 Remarks, supra note 19; see also Letter from Christine S. Wilson, Comm’r, Fed. Trade Comm’n (Sept. 3, 2021) [hereinafter Wilson Letter], https://perma.cc/PW5N-HNZ4 (“Unfortunately, I have been unable to obtain a copy of the Second Request from internal sources. As you will understand, as a Commissioner, I am obligated to exercise due oversight of Commission business. Absent receipt of the Second Request issued to your client, I cannot fulfill this role.”).
There are many facets of liberalism and due process that the Neo-Brandeisians scorn through both actions and words. The following quote conveys succinctly key tenets of classical liberalism:
Liberalism . . . distrusts grand unifying theories and prefers to emphasize process over ends. . . . Because of the value liberals place on liberty, they tend to be wary of the sort of power concentrations that could mandate changes quickly. They prefer a more incremental approach to political change that depends on the consent of the governed . . . . Liberalism is never utopian, by anyone’s definition, but always procedural, because it presupposes a society of people who profoundly disagree with each other and whose interests, goals, stakes and stands, cannot easily, if ever, be fully reconciled.85Pyle, supra note 24, at 814 (footnotes omitted).
This description provides a useful benchmark for evaluating the actions of the FTC’s current leadership.
“Because of the value liberals place on liberty, they tend to be wary of the sort of power concentrations that could mandate changes quickly.”86Id. But Chair Khan has consolidated power in the Office of the Chair since arriving at the Commission.87See Wilson July 1 Statement, supra note 19. Changes to the FTC’s Rules of Practice regarding the rulemaking process place far more power in the Chair’s office, facilitating an agenda-driven outcome.88Id. (raising concerns about the removal of objective management of the rulemaking process and the revision of procedures that impact public participation in the rulemaking process). Omnibus resolutions ensure that the Chair needs no other commissioner’s vote to authorize staff to use compulsory process in essentially all agency investigations.89Dissenting Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson Regarding the Issuance of Eight Omnibus Resolutions (Sept. 14, 2021), https://perma.cc/VQ5U-43Q9 (“We voted against these resolutions for the same reason we opposed the prior omnibus resolutions: removing Commission oversight of investigations does virtually nothing to make those investigations more effective but does mean less input and oversight from the Commission. These resolutions create less accountability and more room for mistakes, overreach, cost overruns, and even politically-motivated decision making. Congress gave the Commission, not a single commissioner or staff, the authority to bless compulsory process in its investigations, but the 15 sweeping resolutions have undone that legislative delegation of authority for essentially all antitrust investigations, and many others. Now, in all of these matters, the application of the FTC’s considerable investigative power no longer requires an informed and deliberated decision by all commissioners; unilateral approval from the Chair or his or her chosen commissioner is sufficient.” (footnotes omitted)). Through these and other actions,90See, e.g., Wilson Letter, supra note 84 (requesting information that FTC leadership refused to share with minority Commissioners). Chair Khan has undermined the congressionally mandated Commission structure.
“They prefer a more incremental approach to political change that depends on the consent of the governed . . . .”91Pyle, supra note 24, at 814. But Chair Khan has undertaken sweeping policy changes without typical opportunities for public input. The Commission under Chair Khan abruptly voted 3–2 to rescind the Statement of Enforcement Principles Regarding “Unfair Methods of Competition” Under Section 5 of the FTC Act.92Withdrawal Dissent, supra note 65 (“Last week, with next to no notice or public input, the majority withdrew the Commission’s 2015 Statement of Enforcement Principles Regarding ‘Unfair Methods of Competition’ Under Section 5 of the FTC Act . . . .”). Similarly, the majority voted to rescind the 1995 Policy Statement Concerning Prior Approval and Prior Notice Provisions in Merger Cases without notice and comment, even though it was subject to notice and comment (i.e., the Commission made a draft of the policy public and solicited comments before enacting the policy) when it was issued.93Wilson July 21 Remarks, supra note 19 (offering a topping motion to seek public comment, which failed, and stating “[w]hen the Commission issued the Policy Statement in 1995, it solicited public comments. Chair Khan and Commissioners Chopra and Slaughter previously have emphasized the importance of democratic participation in government.”). The same is true for the rescission of the Vertical Merger Guidelines.94Oral Remarks of Commissioner Christine S. Wilson: Open Commission Meeting (Sept. 15, 2021), https://perma.cc/C5ES-JWDZ (“Once again, we are withdrawing a sound policy based on economic analysis, agency experience, and substantial public input—unilaterally, with little notice to the public, and with no opportunity for public input.”). And the Commission accepted public input only after votes on several policy issues occurred during the first several open Commission meetings.95Id. How can the governed consent if their input is not sought?
“Liberalism is never utopian, by anyone’s definition, but always procedural, because it presupposes a society of people who profoundly disagree with each other and whose interests, goals, stakes and stands, cannot easily, if ever, be fully reconciled.”96Pyle, supra note 24, at 814. Under Chairman Simons, Acting Chair Slaughter, and countless other FTC Chairs, the Commission certainly experienced policy disagreements.97See, e.g., Dissenting Statement of Commissioner Maureen K. Ohlhausen: FTC Act Section 5 Policy Statement (Aug. 13, 2015), https://perma.cc/KEF2-D696. But the careful observance of traditions and norms enabled commissioners to discuss their views with each other and with expert staff. This process occasionally changed commissioners’ minds about how to vote on various matters.
A thorough process creates benefits that extend beyond the final vote; it also generates results that are more likely to withstand the test of time.98See Todd Phillips, A Change of Policy: Promoting Agency Policymaking by Adjudication, 73 Admin. L. Rev. 495, 544 (2021) (explaining how a more thorough rulemaking process provides the benefits of political accountability and additional information from non-agency parties because “it requires agencies to solicit and review the public’s input on any and all facts of proposed regulations, and thoroughly explain their rationales”). In contrast, a dearth of process leads to poor results.99See Carl Shapiro & Herbert Hovenkamp, How Will the FTC Evaluate Vertical Mergers?, ProMarket (Sept. 23, 2021), https://perma.cc/K4P2-G8VJ.. For example, the majority’s statement on rescission of the Vertical Merger Guidelines contained flawed assertions about fundamental economic principles, according to leading commentators.100Id. (describing the majority’s description of EDM as “flatly incorrect as a matter of microeconomic theory” and Chair Khan’s description of efficiencies as “baffling”). Perhaps if the majority observed the time-honored tradition of circulating draft statements in advance of votes, the minority’s draft dissent would have noted those errors, and the majority would have fixed them. Or, as those leading commentators noted, even seeking the input of learned staff could have prevented the issuance of a statement with flawed assertions.101Id. (“In drafting its statement, the majority appears not to have consulted with the FTC’s own Bureau of Economics. As a result, we have the spectacle of a federal agency basing its policies on a demonstrably false claim that ignores relevant expertise.”).
II. Parallel Views on Economic and Political Issues
The parallels among Neo-Brandeisian, Marxist, and CLS views do not stop at core classical liberal principles. The similarities are noticeable with respect to a variety of economic and political issues, including the concepts of capitalism, mergers and business growth, individualism, and central planning.
Capitalism is a system in which assets are privately owned, labor is purchased for wages, gains accrue to private owners, and prices allocate capital and labor among potential uses.102Capitalism, Black’s Law Dictionary (11th ed. 2019) (“An economic and political system in which businesses belong mostly to private owners and not to the government; esp., an economic system that depends on the private ownership of the means of production and on competitive forces to determine what is produced.”). While the United States is a capitalist country, it is worth noting that a fair amount of government intervention in the marketplace occurs. The 2022 Index of Economic Freedom ranks the United States twenty-fifth out of 177 ranked countries.103Terry Miller, Anthony B. Kim, James M. Roberts & Patrick Tyrrell, 2022 Index of Economic Freedom, Heritage Found. 5–9 (2022), https://perma.cc/3TQ4-DT83. The study also finds that the standard of living is much higher in economically freer countries.104Id. at 2 (“The standard of living, measured by incomes per capita, is much higher in economically freer countries. Economies rated ‘free’ or ‘mostly free’ in the 2022 Index enjoy incomes that on average are more than three times higher than those in other countries and almost seven times higher than the average incomes of ‘repressed’ economies.”).
Marx viewed capitalism in an entirely different light. He taught that the capitalists, who own the means of production, oppress the masses, who ultimately will rise up and overthrow their oppressors.105Karl Marx & Friedrich Engels, The Communist Manifesto 41–42 (Lerner Publ’g Grp. 2010) (1848) (“The Communists disdain to conceal their views and aims. They openly declare that their ends can be attained only by the forcible overthrow of all existing social conditions. Let the ruling classes tremble at a Communistic revolution. The proletarians have nothing to lose but their chains. They have a world to win.”). Two related concepts play a fundamental role in this conclusion. The first concept is the labor theory of value, which teaches that the value of any commodity is measured in terms of the amount of labor embodied in it—the labor time required to produce it.106Karl Marx, Capital: A Critique of Political Economy 46 (Frederick Engels ed., Samuel Moore & Edward Aveling trans., Charles H. Kerr & Company 1926) (1867) (“We see then that that which determines the magnitude of the value of any article is the amount of labour socially necessary, or the labour-time socially necessary for its production. Each individual commodity, in this connexion, is to be considered as an average sample of its class. Commodities, therefore, in which equal quantities of labour are embodied, or which can be produced in the same time, have the same value. The value of one commodity is to the value of any other, as the labour-time necessary for the production of the one is to that necessary for the production of the other. ‘As values, all commodities are only definite masses of congealed labour-time.’” (footnotes omitted)). The second concept is that of surplus value, which is the difference between the price of a product and the cost to produce it.107Id. at 232 (“This surplus-value is the difference between the value of the product and the value of the elements consumed in the formation of that product, in other words, of the means of production and the labour-power.”). Marx asserted that owners of the means of production, the capitalists, unfairly appropriate this surplus value from workers.108Marx & Engels, supranote 105, at 15 (“The essential condition for the existence, and for the sway of the bourgeois class, is the formation and augmentation of capital; the condition for capital is wage-labour. Wage-labour rests exclusively on competition between the laborers. The advance of industry, whose involuntary promoter is the bourgeoisie, replaces the isolation of the labourers, due to competition, by the revolutionary combination, due to association. The development of Modern Industry, therefore, cuts from under its feet the very foundation on which the bourgeoisie produces and appropriates products. What the bourgeoisie, therefore, produces, above all, is its own grave-diggers. Its fall and the victory of the proletariat are equally inevitable.”); Marx, supra note 106, at 623–33 (“Capitalist production, therefore, of itself reproduces the separation between labour-power and the means of labour. It thereby reproduces and perpetuates the condition for exploiting the labourer. It incessantly forces him to sell his labour-power in order to live, and enables the capitalist to purchase labour-power in order that he may enrich himself. It is no longer a mere accident, that capitalist and labourer confront each other in the market as buyer and seller. It is the process itself that incessantly hurls back the labourer on to the market as a vendor of his labour-power, and that incessantly converts his own product into a means by which another man can purchase him. In reality, the labourer belongs to capital before he has sold himself to capital. His economic bondage is both brought about and concealed by the periodic sale of himself, by his change of masters, and by the oscillations in the market-price of labour-power.” (footnotes omitted)).
Lazar Radic described how these concepts become interwoven with the concepts of capitalism and competition in the Marxist worldview.109Radic, Neoliberalism Part 2, supra note 24. In a market economy, capitalists seek to gain an advantage over their rivals by driving down costs, increasing productivity, and decreasing the price of goods and services.110Leon Trotsky, Marxism in Our Time 13 (Pathfinder Press 1970) (“Relations amongst capitalists, who exploit the workers, are determined by competition, which for long endures as the mainspring of capitalist progress. Large enterprises enjoy technical, financial, organizational, economic and, last but not least, political advantages over small enterprises. The greater amount of capital, being able to exploit a greater number of workers, inevitably emerges victorious out of a contest. Such is the unalterable basis of the concentration and centralization process of capital.”). They reinvest the surplus value (wrongfully) appropriated from labor to facilitate increases in productivity and acquisitions that increase scale.111See id. In other words, competition is the engine of capitalism. And the capitalist that can lower costs, appropriate the most surplus value, and reinvest the most is both the most exploitative and the best-positioned vis-à-vis its rivals.112Marx & Engels, supra note 105, at 10 (“The lower strata of the middle class—the small tradespeople, shopkeepers, and retired tradesmen generally, the handicraftsmen and peasants—all these sink gradually into the proletariat, partly because their diminutive capital does not suffice for the scale on which Modern Industry is carried on, and is swamped in the competition with the large capitalists, partly because their specialized skill is rendered worthless by the new methods of production. Thus the proletariat is recruited from all classes of the population.”). The bottom line, according to Marx, is that capitalists steal from workers to obtain scale, lower costs, cheapen commodities, and beat their rivals in the market.113See Marx, supra note 106, at 346 (“Hence, a fall in the value of labour-power is also brought about by an increase in the productiveness of labour, and by a corresponding cheapening of commodities in those industries which supply the instruments of labour and the raw material, that form the material elements of the constant capital required for producing the necessaries of life.”).
CLS scholars take a similarly dim view of capitalism, competition, and efficiencies. One author observed that a “free market reaches ‘efficient’ results only with respect to any given set of entitlements” bestowed by the existing legal regime.114Elizabeth Mensch, The History of Mainstream Legal Thought, in The Politics of Law: A Progressive Critique, supra note 35, at 23, 48 (“[A] free market reaches ‘efficient’ results only with respect to any given set of entitlements; efficiency is necessarily a function of the distribution of legally protected entitlement, and will be modified by any modification in that distribution. Given that circularity, the notion of efficiency, while analytically useful, still speaks to the underlying question of legitimacy only at the margins, so to speak, not at the core. Perhaps symptomatic of that marginality is the crabbed, instrumental reasoning the law and economics movement presupposes. Reason’s primary purpose is now defined as self-interested wealth maximization in a world of subjective value . . . .”). Because that existing legal regime serves to reinforce inequities, “the notion of efficiency, while analytically useful, still speaks to the underlying question of legitimacy only at the margins, so to speak, not at the core.”115Id. For CLS scholars, capitalism and lawmaking are “governed by the same process of alienation.”116See. e.g., Karl E. Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941, 62 Minn. L. Rev. 265, 337–38 (1978) (leading CLS scholar Karl E. Klare discussing the connections between capitalism and lawmaking in relation to the National Labor Relations Act). In other words, for CLS scholars, “[p]roducing goods and services in the workplace and making law in legislatures and courtrooms are both forms of objectification.”117Id. at 337. This connection between capitalism and lawmaking is true in capitalist society, according to CLS theory, because laws are not actually made by their purported authors—the people.118Id. at 338. Instead, laws are made “by experts socialized in elite institutions and distant from the lived reality of everyday life in capitalist society.”119Id.
A look at the beliefs of the Neo-Brandeisians reveals many parallels. Capitalism focuses on satisfying consumer demand, and the consumer welfare standard seeks to maximize benefits for consumers. But the Neo-Brandeisians, like Marx, have sought to shift the focus from consumers to workers.120See Marx & Engels, supra note 105, at 18–19. In describing the goals of antitrust, Chair Khan frequently references workers and honest businesses.121E.g., Memorandum from Lina Khan, Chair, Fed. Trade Comm’n, to Comm’n Staff and Comm’rs on Vision and Priorities for the FTC 1 (Sep. 22, 2021), https://perma.cc/Z2EU-SC89 (“First, we need to take a holistic approach to identifying harms, recognizing that antitrust and consumer protection violations harm workers and independent businesses as well as consumers.”); Lina Khan, Chair, Fed. Trade Comm’n, Remarks at the Joint Workshop of the Federal Trade Commission and the Department of Justice (Dec. 6, 2021), https://perma.cc/K4CX-JC5R (“[I]ncreasingly the key question is not whether antitrust law and competition policy can or should protect workers as well as consumers, but instead precisely how they can or should do so.”). Vaheesan stated that “[a]n antitrust enforcer anchored in consumer welfare is an antitrust enforcer anchored in anti-labor.”122Vaheesan, supra note 48. He and co-author Chair Khan embraced the concept that antitrust law is a “once-populist and progressive ‘law against exploitation [that] has become the law for exploiters’ as ‘[e]fficiency and power win.’”123Lina Khan & Sandeep Vaheesan, Market Power and Inequality: The Antitrust Counterrevolution and Its Discontents, 11 Harv. L. & Pol’y Rev. 235, 269 (2017) (quoting Eleanor M. Fox & Lawrence A. Sullivan, Antitrust—Retrospective and Prospective: Where Are We Coming From? Where Are We Going?, 62 N.Y.U. L. Rev. 936, 963 (1987)). He recently proclaimed that the FTC “should treat low prices derived from exploitation of workers as an unfair method of competition.”124Sandeep Vaheesan (@sandeepvaheesan), Twitter (Mar. 28, 2021, 11:19 AM), https://perma.cc/BVW2-D2LN.
Tim Wu, now Special Assistant to the President for Technology and Competition Policy, wrote an op-ed in the New York Times in July 2020 that similarly bemoaned economies of scale and low prices.125Tim Wu, Opinion, That Flour You Bought Could Be the Future of the U.S. Economy, N.Y. Times (July 24, 2020), https://perma.cc/3WVQ-MHKU. Wu demonized large flour producers for maximizing scale and driving down the price of flour through “brute efficiency.”126Id. He complained that this approach “limit[ed] workers’ salaries and reduc[ed] the prospects for smaller or local competitors.”127Id. And he praised the higher-priced offerings of smaller flour companies that employ more people relative to their size.128Id. This comment reveals not just a focus on workers, but also on rivals. It is common for the Neo-Brandeisians to focus on the impact of mergers and conduct on smaller rivals.129Lina M. Khan, Chair, Fed. Trade Comm’n, Remarks Regarding the Request for Information on Merger Enforcement (Jan. 18, 2022), https://perma.cc/6WXS-EXVT (“As President Biden noted in his Executive Order on Promoting Competition, industry consolidation and weakened competition have ‘den[ied] Americans the benefits of an open economy,’ with ‘workers, farmers, small businesses, and consumers paying the price.’” (quoting Exec. Order No. 14,036, 86 Fed. Reg. 36,987, 36,989 (July 9, 2021)); Prohibiting Anticompetitive Mergers Act of 2022, S. 3847, 117th Cong. § 4(b)(7)(A) (2022) (“Harms to the competitive process may include, without limitation, harms to . . . small or minority-owned businesses . . . .”); see also Sandeep Vaheesan, Privileging Consolidation and Proscribing Cooperation: The Perversity of Contemporary Antitrust Law, 1 J.L. & Pol. Econ. 28, 28 (2020) (“For antitrust law to redistribute power downward, a radical philosophical change is necessary. First, antitrust law should tightly restrict the consolidation of corporate property. Second, policymakers should recognize that collusion among powerless actors can represent socially desirable cooperation. Reconstructing antitrust law in this manner would transfer power in markets away from corporate executives and financial interests to workers, professionals, and small firms.”). But this approach contravenes the established view that the antitrust laws protect competition, not competitors.130See Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 767 (1984).
B. Mergers and Business Growth
Free markets reward with growth those companies that offer superior products and services at lower prices. And the market for corporate control ensures that, through mergers and acquisitions, assets flow to companies that will use them most productively. While Marxism accepts at face value a correlation between the size of a company and its level of productivity, it goes a step further in asserting a correlation between the size of a company and the magnitude of its worker exploitation.131Trotsky, supra note 110, at 13 (“The capitalist buys labor power in order to exploit it. It is this exploitation which is the source of inequality. . . . Relations amongst capitalists, who exploit the workers, are determined by competition, which for long endures as the mainspring of capitalist progress. Large enterprises enjoy technical, financial, organizational, economic and, last but not least, political advantages over small enterprises. The greater amount of capital, being able to exploit a greater number of workers, inevitably emerges victorious out of a contest. Such is the unalterable basis of the concentration and centralization process of capital.”). The Neo-Brandeisians also believe that big is bad, even in the absence of market power.132See Wu, supra note 11, at 7 (“[It’s] more realistic to ask enforcers and judges to act like referees, calling out fouls and penalties, with the goal of ultimately protecting the quality of play, which in this case means an economy that does not allow size, market power, or anticompetitive agreements to be used as weapons, and instead seeks to reward the firms with better products.”). Wu emphasized this point in The Curse of Bigness.133Wu, supra note 14, at 15 (“What we must realize is that, once again, we face what Louis Brandeis called the ‘Curse of Bigness’ . . . .”). And in an article with Professor Teachout, Chair Khan detailed the harms that large corporations inflict on society.134See generally Khan & Teachout, supra note 23.
Some nuances between the views of Marxists and the Neo-Brandeisians are worth mentioning. While both schools view mergers and business growth as inherently harmful and inevitably corrupting, they differ on efficiencies. Specifically, Marxists believe that the drive for greater productivity fuels mergers and corporate growth,135See Trotsky, supra note 110, at 11–13. while Neo-Brandeisians are skeptical that efficiencies actually materialize.136See U.S. Dep’t of Just. & Fed. Trade Comm’n, Request for Information on Merger Enforcement 9 (2022), https://perma.cc/7M2A-97B5 (“If mergers generally or often fail to realize cognizable efficiencies, how should that affect the guidelines’ treatment of efficiency claims?”). And when growth does generate efficiencies, the Neo-Brandeisians are inclined to view them as harmful because they disadvantage smaller rivals.137Eminent scholars view the Neo-Brandeisian perspective on efficiencies as inaccurate. See Shapiro & Hovenkamp, supra note 99 (describing why Chair Khan’s views of efficiencies are incorrect: “Consider a merger between two of the smaller firms in a concentrated market. In the absence of any efficiencies, such a merger could well be illegal, by eliminating the direct competition between those two firms (unilateral effects) or by making it easier for the remaining firms to collude (coordinated effects). Suppose, however, that the merger would enable these two smaller firms to achieve economies of scale, with the result that output is higher and prices lower than without the merger. There is no logical sense in which that merger would ‘lessen competition,’ so the merger cannot violate the statute. The legality of the merger thus must hinge on those efficiencies, yet the new FTC would ignore them”). But the overarching parallels between the views are clear: corporate growth generates insidious harms to society.
The Neo-Brandeisians argue that antitrust policy must account for these harms, which they characterize as an assault on democracy.138Khan & Teachout, supra note 23, at 39 (“The implication is that those concerned with preserving authentic democratic self-governance should focus their efforts on restoring antitrust policy, and that campaign finance reform should be seen as deeply connected to antitrust policy.”); see also supra notes 21–22 and accompanying text (describing Barry Lynn’s comments at 2022 ABA Antitrust Section Spring Meeting). For example, Chair Khan proposes using antitrust law to give a broader group of citizens access to managerial positions in the private sector.139Khan & Teachout, supra note 23, at 59–60 (“Access to the experience of power is directly related to corporate structure. When there are bigger businesses, there are fewer people in management positions, and more people who have no daily relationship to power (or who experience it only as subjects). There are fewer people who work with or witness executive decision-making. Imagine five major tire companies in this country instead of one thousand, and five executives instead of one thousand. If evenly distributed over the fifty states there would be twenty executives in each state willing to challenge political power, instead of five states with executives and forty-five with none.”). She and co-author Teachout wrote that everyone else experiences a “daily relationship to power . . . only as subjects,” creating a dearth of informed citizens capable of challenging political power.140Id. Of course, this perspective views people as one-dimensional “workers” and ignores the managerial skills that one can develop through coaching student athletes, building volunteer organizations, serving on the boards of non-profits, and even through employment with local, state, and federal government entities. This shriveled perspective of the human existence prompts Neo-Brandeisians to shift the policy goals of antitrust enforcement, a shift they mask with the commonly heard language of “protecting the competitive process.”141See Wu, supra note 11, at 2.
So, large corporations are viewed with suspicion, and mergers that increase corporate size are viewed as detrimental (one former colleague of Chair Khan’s wrote an article titled Mergers Ruin Everything).142Matt Stoller, Mergers Ruin Everything, Big (Feb. 24, 2022), https://perma.cc/8AHF-C7CA (describing industries that have been consolidated because of lax merger review). In addition to objections about corporate growth in a vacuum, it appears that the Neo-Brandeisians view the goals of the competitive process—increased productivity, lower costs, and lower prices—not as benefits but as harms because they flow from the exploitation of workers and disadvantage rivals.143Wu, supra note 14, at 73 (“The more power a firm or industry enjoys, the easier it is to prevent employees from getting too much of the returns.”); id. at 63–64 (describing how Standard Oil used its oil monopoly to control railroad pricing and “ensure a major disadvantage for [its] smaller rivals”). This approach may explain why merger efficiencies are viewed as a negative by the Neo-Brandeisians,144See Shapiro & Hovenkamp, supra note 99 (describing Chair Khan’s “baffling” treatment of efficiencies in her statement on rescinding the 2020 Vertical Merger Guidelines). and why they pushed for a moratorium on mergers in 2020.145Sahil Kapur, Warren, Ocasio-Cortez Propose Halt to Big Mergers During Coronavirus Pandemic, NBC News (Apr. 28, 2020, 9:40 AM), https://perma.cc/76VH-6JMR; Matthew Stoller (@matthewstoller), Twitter, (Mar. 18, 2020, 10:32 PM), https://perma.cc/9B7A-EPNH (“It’s evil anyone would think M&A should be a priority when we are facing economic collapse and prospect of mass deaths. The right approach is to just stop M&A during a crisis or lapse in agency capacity. Let’s not invite companies to exploit the crisis and go on buying sprees.”).
The view of the Neo-Brandeisians that mergers are evil may explain the many process and policy shifts undertaken by the FTC since President Biden’s inauguration. In February 2021, the FTC and DOJ announced a “temporary” and “brief” suspension of grants of early termination of the Hart-Scott-Rodino (“HSR”) waiting period.146Press Release, Fed. Trade Comm’n, FTC, DOJ Temporarily Suspend Discretionary Practice of Early Termination (Feb. 4, 2021), https://perma.cc/4Q96-HB6E. Over a year later, the public has received no clarity regarding when the agencies plan to lift this unwarranted and unprecedented suspension.147Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson Regarding the Commission’s Indefinite Suspension of Early Terminations (Feb. 4, 2021),
https://perma.cc/3Q3Q-RJ9R. In May 2021, the Commission flouted a negotiated timing agreement after the parties voluntarily extended the timing several times,148Press Release, 7-Eleven, Inc., 7-Eleven, Inc. Response to FTC Commissioner Statement (May 14, 2021), https://perma.cc/P5ZU-FCNK. failed to order a divestiture in a transaction that all Commissioners had reason to believe violated the antitrust laws, and consequently left consumers unprotected.149Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson: Seven & i Holdings Co., Ltd. / Marathon Petroleum Corporation (May 14, 2021), https://perma.cc/94U3-L558. In July 2021, the Commission rescinded a 1995 Policy Statement Concerning Prior Approval and Prior Notice Provisions, facilitating a massive end-run around HSR filing requirements and opening the door for vindictive and wasteful enforcement.150Wilson July 21 Remarks, supra note 19; Dissenting Statement of Commissioner Noah Joshua Phillips Regarding the Commission’s Withdrawal of the 1995 Policy Statement Concerning Prior Approval and Prior Notice Provisions in Merger Cases (July 21, 2021), https://perma.cc/34PF-RZP5. In subsequent months, practitioners began to report avenues of merger investigation that add time and expense to the merger review process but would not support legal challenges in court.151Fed. Trade Comm’n, Transcript of Open Commission Meeting 26 (Sept. 15, 2021), https://perma.cc/Y3CX-6BYT (Darren Tucker: “As some of the Commissioners have expressed today, I do have concerns that other aspects of the FTC’s interactions with the public are becoming less transparent. In an increasing number of FTC merger investigations, agency staff have requested information regarding how the proposed transaction will affect unionization, ESG policies, or franchising. Staff have been unable to articulate how these issues relate to the agency’s mission to promote competition, leaving the outside world guessing as to the role they play in agency decision making. Adding to this concern, these types of considerations are not topics in which agency staff have expertise, and devoting time to these issues has the potential to delay agency review of transactions. To the extent that these considerations are playing the role in enforcement decisions, I hope the Commission will give serious consideration to promptly explaining their role and how to square this with decades of Supreme Court precedent, that the impact on competition is the only proper consideration in the antitrust case.”); see also Bryan Koenig, ‘Nontraditional Questions’ Appearing in FTC Merger Probes, Law360 (Sept. 24, 2021, 9:44 PM), https://perma.cc/3RPJ-MX7H; Ben Remaly, FTC Broadens the Scope of its Merger Probes, Global Competition Rev. (Sept. 29, 2021), https://perma.cc/UE77-V3AL. Collectively, these actions raise the costs of doing mergers and threaten to chill harmful and beneficial deals alike.152And let us not forget about attempts in 2020 to suspend the HSR process entirely through enactment of a merger moratorium. See, e.g., Erik Wasson, Warren, Ocasio-Cortez Float Long-Shot Bid to Pause M&A in Crisis, Bloomberg, (Apr. 28, 2020, 12:45 PM), https://perma.cc/Q5XQ-BWHN.
Marxist theory believes that the competitive process inevitably leads to the emergence of “an ever-decreasing number of ever more powerful capitalist overlords” “[o]ver the corpses and semi-corpses of small and middling capitalists.”153Trotsky, supra note 110, at 14. Given the drive to achieve greater scale and productivity, Marxists believe that “out of ‘honest,’ ‘democratic,’ ‘progressive’ competition grows irrevocably ‘harmful,’ ‘parasitic,’ ‘reactionary’ monopoly.”154Id. Perhaps this worldview explains why the Neo-Brandeisians continue to advance the now-debunked narrative that concentration is increasing throughout our economy,155See, e.g., America’s Concentration Crisis, Open Mkts. Inst. (June 2019),
https://perma.cc/28NZ-GZ7Z (presenting concentration data). But see Joshua D. Wright, Towards a Better Understanding of Concentration: Measuring Merger Policy Effectiveness, Org. Econ. Coop. & Dev. [OECD] (25 Sep., 2020),https://perma.cc/NYE3-DX7W; Gregory J. Werden & Luke M. Froeb, Don’t Panic: A Guide to Claims of Increasing Concentration, Antitrust Mag. Online (Oct. 29, 2021), https://perma.cc/8NDV-82CD (critiquing the Council of Economic Advisers analysis); Michael Vita & F. David Osinski, John Kwoka’s Mergers, Merger Control, and Remedies: A Critical Review, 82 Antitrust L.J. 361 (2018) (demonstrating a lack of evidence that current merger enforcement policies are too permissive). their insistence on finding a monopolist under every bed,156See America’s Concentration Crisis, supra note 155; Stoller, supra note 142. and their insistence on blaming every sub-optimal occurrence on monopolies.157See, e.g., Matt Stoller, Counterfeit Capitalism: Why a Monopolized Economy Leads to Inflation and Shortages, BIG (Sept. 9, 2021), https://perma.cc/AP9F-PN7P (“From railroads to plastic bags to semiconductors to ice cream, Wall Street and monopolists are creating shortages and exploiting them.”). But see Oral Remarks of Commissioner Christine S. Wilson: Open Commission Meeting (Nov. 18, 2021), https://perma.cc/JS37-9L7X(“Only by examining each level of the supply chain will we gain an accurate assessment of where the problems lie—in large part because players at all levels of the supply chain are blaming each other for the problem. . . . [T]here are concerns with many aspects of the global supply chain. Participants at each level of the supply chain will be able to shed light on their own unique challenges and concerns. For us to obtain a clear understanding of the supply chain issues and causes, we will need to cast a wide net.”).
C. The Individual Versus the Collective
John Stuart Mill asserted that “[t]he only freedom which deserves the name, is that of pursuing our own good in our own way.”158John Stuart Mill, On Liberty (1859), reprinted in On Liberty and Other Essays 5, 17 (John Gray ed., Oxford Univ. Press 1991). The free market is driven by the preferences of countless individuals. But in The Social Contract, Jean-Jacques Rousseau wrote that “[m]an is born free; and everywhere he is in chains.”159Jean-Jacques Rousseau, The Social Contract (1762), reprinted in The Social Contract & Discourses 1, 5 (Ernest Rhys ed., G.D.H. Cole trans., J.M. Dent & Sons 1913). He argued these chains include familiar institutions of society like family, religion, and class, as well as rules, customs, and traditions.160See id. at 6 (“But the social order is a sacred right which is the basis of all other rights. Nevertheless, this right does not come from nature, and must therefore be founded on conventions.”).
George Wilhelm Friedrich Hegel and Marx viewed the state as destroying these social ties, becoming the liberator, and releasing the individual from loyalty to anything but the state itself. 161Georg Wilhelm Friedrich Hegel, Philosophy of Right 76 (S.W. Dyde trans., George Bell & Sons 1896) (1820) (“The particular person is really a subordinate, who must devote his life to the service of the ethical fabric; when the state demands his life, he must yield it up.”). By emphasizing loyalty to the state, socialism elevates the collective above the individual.162Mao Tse-tung, Quotations from Chairman Mao Tse-tung (Foreign Language Press 1972) (“We must affirm anew the discipline of the Party, namely: (1) the individual is subordinate to the organization; (2) the minority is subordinate to the majority . . . .”). On a related note, Marxists view as detrimental the “creation and maintenance of individuals as economic and legal subjects, the bearers of reified property rights.”163Sol Picciotto, The Theory of the State, Class Struggle and the Rule of Law, in Marxism and Law, supra note 32, at 169, 175 (emphasis omitted). Why? Because a “‘right’ in bourgeois legal form . . . fragments class solidarity” and dampens the desire to collectively struggle against oppression.164Id. The individual as the bearer of property rights is anathema to Marx.
Like Marx, CLS scholars also reject a focus on individualism and property rights. Leading CLS scholar Roberto Unger said traditional property rights protect social hierarchy at the expense of communal life.165William Ewald, Unger’s Philosophy: A Critical Legal Study, 97 Yale L.J. 665, 739 (1988) (“To be sure, Unger does allow for a set of ‘immunity rights’ to personal security and to welfare entitlements. He does not, however, allow property rights, and he says that the immunity rights are to ‘impose a minimal rigidity upon the organization of society.’”). This approach views property rights as negative and toxic.166David Kairys, Introduction to The Politics of Law: A Progressive Critique, supra note 35, at 11 (“Free market mania and the tendency to commodify all things human pervade our culture and our lives, yielding in the law a new and powerful discipline, law and economics, which attempts to explain and justify it all in terms of logic, reason, and ‘science.’ We seem to have adopted as our social purpose the facilitation of greed and the consolidation of wealth and resources in as few hands as possible, which we are accomplishing quite efficiently.”). Another CLS scholar wrote that “‘[p]roperty rights,’ in American culture, have functioned as powerful symbols of individual freedom . . . of security . . . [and] of productive efficiency, providing the incentives to labor, invest, and create.”167Gordon, supra note 35, at 651. But this dominant ideology of property, he noted, downplays or obscures property’s other faces, which are “coercive and oppressive.”168Id. (“But this dominant ideology of property, by facing frontward the aspects of property that seem to promote individual freedom, security, and efficiency, downplays or obscures property’s other faces—some coercive and oppressive, others cooperative and benign. Stressing how property promotes the freedom of owners suppresses how it also enables the owner to control the lives and reduce to subjection those who need access to it.”).
Neo-Brandeisian beliefs parallel Marxist and CLS positions in rejecting individualism. The consumer welfare standard benefits individuals through low prices, greater choice, higher quality, and more innovation,169See Horizontal Merger Guidelines, supra note 69, at 2 (explaining that “[e]nhanced market power can also be manifested in non-price terms and conditions that adversely affect customers, including reduced product quality, reduced product variety, reduced service, or diminished innovation. . . . When the Agencies investigate whether a merger may lead to a substantial lessening of non-price competition, they employ an approach analogous to that used to evaluate price competition.”). but like Marxists, the Neo-Brandeisians would subjugate the rights of the individual to the rights of favored groups. Chair Khan has already asserted that all decisions are political,170Varney Interview, supra note 42. so we know the groups selected for preferential treatment will depend on which way the political winds are blowing. In fact, a new bill from Senator Elizabeth Warren previews some of those favored groups, including “workers . . . sellers, small or minority-owned businesses (including farms and ranches), local, rural, or low-income communities, [and] communities of color.”171Prohibiting Anticompetitive Mergers Act of 2022, S. 3847, 117th Cong. § 4(b)(7)(A) (2022).
D. The Invisible Hand Versus Central Planning
In order for free markets to function, private property rights must be respected and protected. But Marx envisioned “the abolition of bourgeois property” and state-controlled mechanisms of production.172Marx & Engels, supra note 105, at 17 (“The distinguishing feature of Communism is not the abolition of property generally, but the abolition of bourgeois property. But modern bourgeois private property is the final and most complete expression of the system of producing and appropriating products, that is based on class antagonisms, on the exploitation of the many by the few.”). History has demonstrated repeatedly that command and control economies lead to the drastic misallocation of resources, creating misery and deprivation for ordinary citizens.173See, e.g., Staff of the Joint Econ. Comm., 97th Cong., Consumption in the USSR: An Int’l Comparison 5 (Comm. Print 1981) (“Based on a geometric mean comparison, Soviet consumers come nearest to their American counterparts in consumption of food, beverages, and tobacco (54 percent) and soft goods (39 percent). The Soviet lag is massive (less than 20 percent of the US level) in consumer durables and household services. In terms of housing services, for example, the Soviet level is only one-seventh of that in the United States. In contrast, the Soviets exceed the United States in per capita consumption of alcoholic beverages (especially hard liquor) and in provision of public transportation. Education and health services, which the USSR supplies mainly without direct charge, are at about half the US level, with a considerably better showing in education (77 percent) than in health (33 percent). Over the past 20 years, the Soviets have made the most progress in ‘catching up’ in food, soft goods, and durables, but have retrogressed relative to the United States in housing, recreation, education, and health.”). For the same reasons that central planning failed in the Soviet Union, Cuba, China, North Korea, Venezuela, and elsewhere,174See F.A. Hayek, The Use of Knowledge in Society, 35 Am. Econ. Rev. 519, 522–24 (1945) (“This is, perhaps, also the point where I should briefly mention the fact that the sort of knowledge with which I have been concerned is knowledge of the kind which by its nature cannot enter into statistics and therefore cannot be conveyed to any central authority in statistical form. The statistics which such a central authority would have to use would have to be arrived at precisely by abstracting from minor differences between the things, by lumping together, as resources of one kind, items which differ as regards location, quality, and other particulars, in a way which may be very significant for the specific decision. It follows from this that central planning based on statistical information by its nature cannot take direct account of these circumstances of time and place, and that the central planner will have to find some way or other in which the decisions depending on them can be left to the ‘man on the spot.’”); see also Friedrich August von Hayek, The Pretence of Knowledge, Nobel Memorial Lecture (Dec. 11, 1974), in 79 Am. Econ. Rev. 3, 4 (1989) (“But when we are asked for quantitative evidence for the particular structure of prices and wages that would be required in order to assure a smooth continuous sale of the products and services offered, we must admit that we have no such information. We know, in other words, the general conditions in which what we call, somewhat misleadingly, an equilibrium will establish itself: but we never know what the particular prices or wages are which would exist if the market were to bring about such an equilibrium. We can merely say what the conditions are in which we can expect the market to establish prices and wages at which demand will equal supply. But we can never produce statistical information which would show how much the prevailing prices and wages deviate from those which would secure a continuous sale of the current supply of labour. Though this account of the causes of unemployment is an empirical theory, in the sense that it might be proved false, e.g. if, with a constant money supply, a general increase of wages did not lead to unemployment, it is certainly not the kind of theory which we could use to obtain specific numerical predictions concerning the rates of wages, or the distribution of labour, to be expected.”). the regulatory regimes that governed transportation industries in the United States generated lower levels of innovation and supply, and higher prices, than those same industries experienced following deregulation.175Christine S. Wilson, Comm’r, Fed. Trade Comm’n, Remembering Regulatory Misadventures: Taking a Page from Edmund Burke to Inform Our Approach to Big Tech 4–13 (June 28, 2019), https://perma.cc/KY4G-39Y4 (discussing dampened innovation, high prices, and low demand caused by regulation of railroads and airlines). The Neo-Brandeisians ignore this history and propose to expand significantly the government’s role in the U.S. economy.176See Majority Staff Report, supra note 17, at 376–405; Lina M. Khan, Amazon’s Antitrust Paradox, 126 Yale L.J. 710, 797 (2017) (“Industries that historically have been regulated as utilities include commodities (water, electric power, gas), transportation (railroads, ferries), and communications (telegraphy, telephones).”). But history demonstrates that heavy-handed regulation harms innovation.177See, e.g., Christine S. Wilson & Keith Klovers, The Growing Nostalgia for Past Regulatory Misadventures and the Risk of Repeating These Mistakes with Big Tech, 8 J. Antitrust Enf’t 10, 10–14, 18–19 (2020) (discussing harm to innovation from railroad and airline regulations).
CLS scholars also favor an approach that diminishes innovation. One CLS scholar wrote that “[s]tressing property as the necessary incentive to productivity suppresses the need for resources to be widely available to others” who would make productive use of them.178Gordon, supra note 35, at 652. This author provided an example pertaining to intellectual property: “[I]nsisting on making all the fruits of creative labor into ‘intellectual property’ disregards how making knowledge into property limits the ability of other creative people to make use of a common stock of ideas for innovations of their own.”179Id.
Perhaps this perspective explains the heavy thumb on the scale for implementers, rather than innovators, of intellectual property that the Biden Administration has exhibited thus far.180See, e.g., U.S. Pat. & Trademark Off., Nat’l Inst. of Standards & Tech. & U.S. Dep’t of Just., Draft Policy Statement on Licensing Negotiations and Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments 1–2 (2021) [hereinafter 2021 Draft Policy]. The arena of standard-setting organizations provides key examples.181Id. Standardization is critical for the development of new technologies around the world.182Id. The use of standard essential patents (“SEPs”) and fair, reasonable, and non-discriminatory (“FRAND”) licensing terms create the framework for investment in and implementation of new technologies.183Id. To incentivize innovation and competition, policy must strike a healthy balance between the interests of those that generate innovations embodied in standards and those that implement those standards.
On December 19, 2019, the Trump Administration implemented the Policy Statement on Licensing Negotiations and Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments (“2019 Policy Statement”).184U.S. Pat. & Trademark Off., Nat’l Inst. of Standards & Tech. & U.S. Dep’t of Just., Policy Statement on Licensing Negotiations and Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments (2019). The Biden Administration released the December 6, 2021 Draft Policy Statement on Licensing Negotiations and Remedies for Standards-Essential Patents Subject to Voluntary F/Rand Commitments (“2021 Draft Policy”) ostensibly to replace the 2019 Policy Statement. The 2021 Draft Policy threatened to favor implementers to the detriment of innovators.185See 2021 Draft Policy, supra note 180. At the FTC, the new Administration would go even further, asserting that patent holdup should constitute a cognizable antitrust harm but patent holdout should not. SeeRebecca Kelly Slaughter, Comm’r, Fed. Trade Comm’n, Remarks at the ANSI World Standards Week: Intellectual Property Rights Policy Advisory Group Meeting 5 (Oct. 29, 2021), https://perma.cc/8UQH-L56W (“I want to take a brief detour to address the ‘holdout’ problem that is often purported to be a parallel problem to holdup. Holdout refers to a licensee unilaterally refusing to take a license or unreasonably delaying doing so. While this may well be a problem in the licensing world, it does not pose the same concerns from a competition standpoint as holdup, which has the potential to exclude firms from implementing a standard.” (emphases omitted)). This view would further distort the negotiating leverage between implementers and innovators in favor of implementers, undermining to an even greater degree incentives to innovate and productive licensing negotiations. See also Written Submission on the Public Interest of Federal Trade Commission Chair Lina M. Khan and Commissioner Rebecca Kelly Slaughter, in the Matter of Certain UMTS and LTE Cellular Communication Modules and Products Containing the Same, United States International Trade Commission, Inv. No. 337-TA-1240 at 1 (May 16, 2022), https://perma.cc/VU8N-ZNLQ. For example, the 2021 Draft Policy claims “monetary remedies will usually be adequate to fully compensate a SEP holder for infringement.”1862021 Draft Policy, supra note 180, at 8. But if innovators cannot enjoin implementers from violating patents, the incentive for holdout—the refusal of implementers to negotiate in good faith and instead persist in infringing on SEPs—increases. When government policy encourages holdout, innovators will not receive fair compensation for their innovations, and incentives to innovate will decline.
After reviewing the comments submitted in response to the 2021 Draft Policy, the agencies responsible for the policy chose to rescind the 2019 Policy Statement.187Press Release, U.S. Dep’t of Just., Antitrust Div., Justice Department, U.S. Patent and Trademark Office and National Institute of Standards and Technology Withdraw 2019 Standards-Essential Patents (SEP) Policy Statement (June 8, 2022), https://perma.cc/5A7N-S534. The agencies, however, chose not to issue the 2021 Draft Policy, leaving no guidance for SEP negotiations.188Id.
The 2021 Draft Policy also sought to dictate the minutiae of SEP licensing negotiations, highlighting the progressives’ preference for government control over free market negotiations.189See 2021 Draft Policy, supra note 180, at 5–7. Notably, the parties to these negotiations frequently are highly sophisticated companies that do not need the protection of the government. But in a socialist society, the state controls the means of production, and planning substitutes for competition as the economy’s steering mechanism.190Socialism, Black’s Law Dictionary (11th ed. 2019) (“A political, economic, and philosophical system that promotes government or community ownership of capital, property, and industry to equalize citizens’ income, opportunities, and outcomes.”).
Again, the parallels with the Neo-Brandeisian approach are striking. Although private property may remain a reality, they seek to replace the invisible hand with heavy-handed regulation.191See Khan, supra note 176, at 797 (“The other [option] is to accept dominant online platforms as natural monopolies or oligopolies, seeking to regulate their power instead. In this Section, I sketch out two models for this second approach, traditionally undertaken in the form of public utility regulations and common carrier duties. . . . Critically, a public utility regime aims at eliminating competition: it accepts the benefits of monopoly and chooses instead to limit how a monopoly may use its power.”); id. at 800 (“Given Amazon’s growing share of e-commerce as a whole, and the vast number of independent sellers and producers that now depend on it, applying some form of public utility regulation could make sense.”); id. at 803 (“If, instead, we accept dominant online platforms as natural monopolies or oligopolies, then applying elements of a public utility regime or essential facilities obligations would maintain the benefits of scale while limiting the ability of dominant platforms to abuse the power that comes with it.”). They characterize as successes the unwieldy regulatory frameworks that once governed railroads and airlines.192See id. at 797–98 (“Industries that historically have been regulated as utilities include commodities (water, electric power, gas), transportation (railroads, ferries), and communications (telegraphy, telephones).”); see also Majority Staff Report, supra note 17, at 380, 382–83; Phillip Longman & Lina Khan, Terminal Sickness, Wash. Monthly (Mar. 1, 2012),
https://perma.cc/QQM3-HHB8 (arguing that price declines following deregulation were a result of declines in the price of oil and that prices were declining more prior to deregulation than the ultimate decline post-deregulation). Indeed, Chair Khan touted railroad regulations as a model for regulating large tech companies.193Id. And they advocated for the extensive use of rules to govern competition generally—no more case-by-case ex post enforcement, but instead an ex ante ordering of the market.194Rohit Chopra & Lina M. Khan, The Case for “Unfair Methods of Competition” Rulemaking, 87 U. Chi. L. Rev. 357, 358, 368 (2020). The list of rules they intend to create is breathtaking.195See Fed. Trade Comm’n, Semiannual Regulatory Agenda (2021),
https://perma.cc/Y6XD-U9X2; Statement of Regulatory Priorities, 87 Fed. Reg. 5,177 (Jan. 31, 2022); Off. Info. & Regul. Affs., Off. of Mgmt. & Budget, Agency Rule List—Fall 2021: Federal Trade Commission (2021), https://perma.cc/28UZ-AUJB; see also Dissenting Statement of Commissioner Christine S. Wilson: Annual Regulatory Plan and Semi-Annual Regulatory Agenda (Dec. 10, 2021), https://perma.cc/82X2-XVJS. Ultimately, the Neo-Brandeisians prefer that the government, rather than the private sector, orchestrate the functioning of the economy.
All of these concepts help illustrate why the Neo-Brandeisians loathe the consumer welfare standard.196SeeVaheesan, supra note 39; see also Khan, supra note 176, at 803 (“In order to capture these anticompetitive concerns, we should replace the consumer welfare framework with an approach oriented around preserving a competitive process and market structure. Applying this idea involves, for example, assessing whether a company’s structure creates anticompetitive conflicts of interest; whether it can cross-leverage market advantages across distinct lines of business; and whether the economics of online platform markets incentivizes predatory conduct and capital markets permit it.”). While increased productivity and lower prices benefit consumers, those same features signify worker exploitation under the labor theory of value.197See Marx, supra note 106, at 346 (“Hence, a fall in the value of labour-power is also brought about by an increase in the productiveness of labour, and by a corresponding cheapening of commodities in those industries which supply the instruments of labour and the raw material, that form the material elements of the constant capital required for producing the necessaries of life.”); Trotsky, supra note 110, at 11–13. Efficiencies, productivity, declining costs, and lower prices all point to the cheapening of commodities that Marx discussed198Marx, supra note 106, at 346.—which is equivalent to the cheapening of flour that dismayed Tim Wu.199Wu, supranote 125. Neo-Brandeisians believe that consumers must sacrifice lower prices for the greater good, in whatever way the politicized process happens to define the greater good at the moment.
III. Destruction and Revolution
Marx drew on the concepts of Jean-Jacques Rousseau, who argued that society and law “bound new fetters on the poor, and gave new powers to the rich,” “eternally fixed the law of property and inequality,” “and, for the advantage of a few ambitious individuals, subjected all mankind to perpetual labour, slavery and wretchedness.”200Lucio Colletti, Rousseau as Critic of “Civil Society,” in From Rousseau to Lenin: Studies in Idealogy and Society 165 (John Merrington & Judith White trans., Monthly Review Press 1974) (quoting Jean-Jacques Rousseau, Discourse on Inequality (1755)). Rousseau lamented the existence of exchange relationships, rivalry, and competition that “inspired all men with a vile propensity to injure one another” and a “secret desire [to] profit at the expense of others.”201Id. at 164 (quoting Jean-Jacques Rousseau, Discourse on Inequality (1755)). Like Marx after him, Rousseau envisioned the dissolution of the civilized state responsible for the moral degeneration and widespread alienation of people.202See id. at 184–85. Destroying the existing society would enable construction of a new, ideal society.203See id. Rousseau, an important muse for the Jacobins in the French Revolution,204David Lay Williams, Rousseau and Revolution, Notre Dame Phil. Revs. (2012) (book review), https://perma.cc/74AQ-WXJU(“Jean-Jacques Rousseau is perhaps most famous or even infamous for two features associated with his work and its influence. Among casual readers, he is known as the muse of the Jacobins in the French Revolution. The popular image persists of Robespierre quoting passages from the Social Contract while simultaneously ordering executions.”). said that “in the life of a state there are ‘periods of violence . . . when revolutions do to peoples what certain crises do to individuals . . . and when the State aflame with civil wars is so to speak reborn from its ashes and recovers the vigor of youth.’”205Id. (quoting Jean-Jacques Rousseau, The Social Contract (1772)).
Marx also drew on the concepts of Hegel, who believed that individuals, societies, and states pass through a series of stages during the course of history, each one better than the next, in an endless progression towards perfection.206See William Turner, History of Philosophy 579–80 (1903). For Hegel, war was indispensable in achieving political progress.207Id. at 578 (“War, Hegel teaches, is the indispensable means of political progress.”). Out of the crisis of war, or tumult, a better version of the State was certain to emerge victorious.208Id. (“[War is] a crisis out of which the better state, that is the state which approaches more closely to the ideal, is certain to emerge victorious.”). Marx also believed in the inevitable progression towards perfection, arguing that the inevitable result of capitalism was socialism and then the utopia of communism.2091 Karl Marx & Freidrich Engels, The German Ideology 56–57 (C.J. Arthur ed., Int’l Publishers 1947) (“Communism is for us not a state of affairs which is to be established, an ideal to which reality [will] have to adjust itself. We call communism the real movement which abolishes the present state of things. The conditions of this movement result from the premises now in existence.” (emphases omitted)). Critics of Marxism noted that “[b]ecause revolutionaries are confident that the next stage of history will automatically represent progress, that any change will be for the better, they readily tear down and destroy the existing order—which historically has meant killing off anyone who resists, from rulers to peasants.”210Charles Colson & Nancy Pearcey, How Now Shall We Live? 236 (1999).
Perhaps the perspectives of Rousseau, Hegel, and Marx explain why the Neo-Brandeisians do not shy away from actions that are destructive to the FTC. If one believes that tumult and destruction inevitably lead to progress, one can dismiss near-term harms as the price of progress. And make no mistake—the Neo-Brandeisians already have imposed significant harm on the Commission and threaten even greater harm in the future.
As noted previously, then-Commissioner Chopra routinely attacked the FTC for being lax and feckless.211Seesources cited supra note 15. His characterizations assisted in undermining the bipartisan congressional support that the FTC long enjoyed.212Compare Chopra Facebook Statement, supra note 15 (characterizing $5 billion settlement containing significant injunctive relief as “inadequate” and “flimsy”), with Letter from Senator Richard Blumenthal & Senator Josh Hawley, U.S. Senate, to Joseph Simons, Chairman, Fed. Trade Comm’n (May 6, 2019), https://perma.cc/T6MK-5D34 (“We are deeply concerned that one-time penalties of any size every few years are woefully inadequate to effectively restrain Facebook.”). And Chair Khan said that agency overreach does not appear in her top ten list of concerns.213Nancy Scola, Lina Khan Isn’t Worried About Going Too Far, N.Y. Mag. (Oct. 27, 2021), https://perma.cc/849A-32V4 (“Khan told me she worries about the ‘existential stakes of underreaching’—of ‘neutering the tools’ available to the agency, constantly disappointing both Democrats and Republicans in Congress, and having the public forget the FTC even exists. Going too far? Doing too much? ‘When identifying the top ten threats to this agency,’ she said, ‘that’s not on the list.’”). But when the FTC engaged in overreach in the past, it incurred the wrath of Congress and its appropriators.214Christine S. Wilson, Comm’r, Fed. Trade Comm’n, Remarks for the Federalist Society “The Future of Rulemaking at the FTC” Event (June 9, 2021), https://perma.cc/XQ56-R466 (“The FTC gets punished by courts and Congress when it pushes the boundaries of its authority to the detriment of consumers. For example, despite having rulemaking power since its creation in 1914, the FTC issued few rules until the 1960’s. The FTC then accelerated its rulemaking, and in 1973, the D.C. Circuit affirmed that the FTC had substantive rulemaking powers. Congress stepped in only two years later, passing the Magnuson-Moss Act, which gave the FTC substantive consumer protection rulemaking power, but implemented increased procedural hurdles. The Commission continued to create rules, leading the Washington Post to label the FTC a ‘national nanny’ in March 1978 and leading Congress to act—again—by passing the Federal Trade Commission Improvements Act of 1980 that implemented more safeguards in the FTC’s rulemaking process.” (footnotes omitted)).
Moreover, current leadership has diminished and marginalized staff in astonishing ways, leading to a significant brain drain.215See Wilson, supra note 63, at 12–16. Countless experienced members of the FTC community, boasting both an encyclopedic knowledge of their fields and finely honed management skills, have fled.216Sisco, supra note 19; see also sources cited supra note 64. This trend is both tragic and ironic: many of these employees agree with Chair Khan’s desire to engage in more aggressive enforcement, and without these skilled and dedicated employees, Chair Khan will face greater difficulty in implementing her agenda.
This Article describes parallels among the worldviews of Marxism, CLS scholars, and Neo-Brandeisians. Many observers remain complacent in the face of attacks from the Neo-Brandeisians on the status quo, convinced that the so-called “antimonopoly movement” is focused only on reining in the largest tech companies, or perhaps the largest companies in the U.S. economy. A closer review of these parallels, though, reveals otherwise. The logical outworking of these worldviews leads inescapably to the conclusion that the Neo-Brandeisians seek control of the most minute aspects of the American economy.
The authors encourage readers to take two steps. First, examine the writings of the Neo-Brandeisians, which describe in detail their plans to transform the field of antitrust law, our economy, and our society. Second, share those writings with others. As Professor Herbert Hovenkamp said, “a neo-Brandeis approach whose goals were honestly communicated could never win in an electoral market, just as it has never won in traditional markets.”217Herbert Hovenkamp, Is Antitrust’s Consumer Welfare Principle Imperiled?, 45 J. Corp. L. 65, 94 (2019) (“Finally is the problem of transparency, which I believe will ultimately prove dispositive. The neo-Brandeisian attack on low prices as a central antitrust goal is going to hurt consumers, but it is going to hurt vulnerable consumers the most. For example, to the extent that the United States Democratic Party becomes the institution to embrace its concerns, it will be harming its own constituencies the most. As a result, to the extent that it is communicated in advance, it could spell political suicide. Setting aside economic markets, a neo-Brandeis approach whose goals were honestly communicated could never win in an electoral market, just as it has never won in traditional markets.”). The remarks of Barry Lynn and Professor Teachout at the 2022 ABA Antitrust Section Spring Meeting served as a wake-up call for many in the antitrust community regarding the unvarnished beliefs and intentions of the Neo-Brandeisians.218Sisco, supra note 21. Other stakeholders and policymakers need a similar wake-up call, a task we ask our readers to facilitate.