Apple was reported to be in talks with the Department of Justice last month to settle an antitrust case the government had brought against it.
If true, this shows just how far antitrust has strayed. For decades antitrust enforcement in the United States was linked to the consumer welfare standard (CWS), which limited enforcement to cases that did demonstrated harm to consumers.
The CWS, popularized by the legal scholar Robert Bork, holds that antitrust regulators should only intervene if a merger or business contract results in a serious loss of consumer surplus. That is, when a firm has insufficient competition (monopoly power) and can raise prices to the point that many consumers can no longer afford its products or services.
Enabling competitive markets, preventing these bad outcomes, became the basis for modern antitrust law. Starting under President Ronald Reagan, a broader push to ease regulatory pressure and allow businesses to experiment made harm to consumers a sensible standard.
Antitrust regulators in recent administrations have moved away from the CWS and instead tried to protect consumers from competition and the choices that result.
It would be far better if consumers were trusted to make their own decisions. That trust can keep regulators from intervening unnecessarily and make sure markets give people what they need.
For too long, the major antitrust regulatory bodies, the Federal Trade Commission (FTC) and the Department of Justice’s Antitrust Division, had been drifting in the wrong direction.
This was thanks chiefly to Lina Khan, who headed the FTC from 2021–2025. Khan made a name for herself in academia when she published an article arguing that Amazon should be subjected to strong antitrust enforcement despite not being a monopoly and offering low prices.
Khan was drawing from the “New Brandeisian” school of thought, named after former Supreme Court Justice Louis Brandeis, which rejected the CWS in favor of a more expansive view of antitrust. Rather than empowering consumers through competition, New Brandeisians think big business should be limited on the basis of size alone.
Anyone using Amazon’s services has plenty of other choices — the company does not lack competitors. Its online marketplace is up against Walmart and Target, as well as low-cost entrants Temu and Shein. Amazon’s cloud-computing service AWS competes directly with Google and Microsoft. Subscribers and vendors on Amazon still can refuse to do business.
Millions of people still choose Amazon every day for a variety of reasons, including the quality of service, the diversity of products available, and the speed of delivery. Yet Khan saw Amazon as a company that needed to be chopped down precisely because of its size and market power — its “structural dominance.”
This approach quickly became standard across the federal government.
Khan’s FTC sued both PepsiCo, and Southern Glazer’s, the nation’s largest liquor distributor. Both lawsuits cited the Robinson-Patman Act, a Great Depression-era law that had gone largely unenforced for decades.
How had Pepsi and Southern Glazer’s violated Robinson-Patman? They’d offered special discounts to bulk-purchase stores like Costco, allowing those retailers to offer lower prices to consumers. Even though the customer gained, Khan reasoned, smaller grocers were put at a disadvantage. But consumers make that fundamental choice all the time: buy in bulk for less at Costco or in smaller quantities for more at a grocery store. But the feds decided consumers needed to be shielded from these decisions in the name of preventing “price discrimination.”
In fairness, the FTC is also charged with policing “unfair methods of competition,” false advertising, and deceptive practices. But objecting to lower prices on bulk purchases, a fundamental reality of transaction costs, seems to aim less at consumer welfare and more at companies achieving global scale.
While it is still too early to tell, the FTC seems to be inching away from this New Brandeis, anti-consumer approach.
Last year, the government dropped the case against PepsiCo while a settlement with Southern Glazer’s is reportedly in the works. The DOJ also greenlit a merger between Hewlett Packard Enterprise (HPE) and Juniper Networks, in hopes the resulting combined strength can stand up to Chinese giant Huawei, and offer consumers more choices in 5G and artificial intelligence.
All of this is promising. But antitrust regulators didn’t back off Khan’s approach entirely. They continued to pursue lawsuits against several of the big American tech companies even after Khan left her post in early 2025.
Antitrust regulation can serve a legitimate purpose — preventing genuine corporate misconduct and preserving competitive markets. If vertical integration leads to abuses, then by all means the abuse should be targeted.
Occasionally, antitrust action is even used to preserve or restore consumers’ freedom to choose, when corporations place unjust restraints on their choices. But taken too far, antitrust can empower the biggest monopoly of all — the federal government — at the expense of businesses and consumers.
Americans don’t need an unaccountable class of regulators telling them what’s in their best interest, choosing between market products and services before the . When it comes to their own needs, they’re the most knowledgeable experts around.
The best antitrust policy is one that trusts consumers, not regulators, to choose from amid vibrant competition.
