The outgoing Biden administration leaves a complicated antitrust enforcement legacy. A second Trump administration may be an improvement over an administration that tried to upend decades of antitrust law—but it likely will not return the United States to the normalcy of previous decades. In fact, a second Trump term may be worse on antitrust than the first. Expect a mixed bag.
Much like the Biden administration today, the first Trump also administration initiated antitrust cases against technology companies. But it did so in a way that mostly argued its cases from the perspective of the objective consumer welfare standard (CWS), which meant cases were interpreted and adjudicated on the basis of consumer harm—not based on size or market concentration. While it stopped short of abandoning the CWS completely as the legal standard, it did target popular and effective services, like Google, when consumer harm was questionable—at best.
But it was the Biden administration that outright dropped the standard as a basis of argumentation in the updated policy guidelines in 2021. Under the leadership of FTC Chair Lina Khan, the Biden administration fundamentally shifted the agency’s priorities by abandoning the standard altogether.
In its place, a new structural approach to antitrust law was introduced that focused on market share and competition—regardless of consumers impact. This change has allowed antitrust officials to target major companies for practices even if they benefit consumers. That has been a mistake that has rightly led to a string of legal defeats in court.
A second Trump administration could be an improvement. Although the first Trump administration sued technology companies under questionable criteria in his first term, Trump has been skeptical of outright breaking up companies, unlike certain recommendations from the Biden DOJ.
However, some of Trump’s closest allies prefer strong antitrust enforcement. Just last February, Vice President-Elect JD Vance praised Lina Khan for her record at the FTC, stating that “A lot of my Republican colleagues look at Lina Khan … and they say, ‘well Lina Khan is sort of engaged in some sort of fundamental evil thing. And I guess I look at Lina Khan as one of the few people in the Biden administration that I think is doing a pretty good job.”
The powers of antitrust are technically out of the hands of incoming Vice President Vance—but that does not mean he will have no say on who is appointed to specific agencies. Nonetheless, his prominent position in the administration and opinion on antitrust matters forecasts trouble for those that think antitrust should focus on consumer harms and benefits.
The policy world is still sorting out the likely policies a second Trump term will pursue. On antitrust, Trump 2.0 may take its foot off the proverbial antitrust gas pedal, but that does not mean it will turn the car around and revert to the heyday of Consumer Welfare Standard antitrust enforcement.
Trey Price is a policy analyst with the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, visit us at www.TheAmericanConsumer.Org or follow us on X @ConsumerPal.