by Robert H. Bork, Jr.
Trump’s FTC chair Andrew Ferguson is enforcing Biden-era antitrust rules, abandoning the consumer welfare standard and embracing regulations that expand government control over the market.
Although I’ve never heard him use the precise term, President Trump’s every statement and action as a free-market advocate leads me to mark him down as an intuitive believer in the consumer welfare standard. This is the doctrine that courts should judge deals and business operations under antitrust laws not according to vague, ever-shifting standards but by their measurable impacts on price, quality, and innovation for the consumer.
After decades of inconsistent standards in judges’ rulings—ranging from protecting inefficient competitors to subjective judgments about how big or small businesses should be—the Supreme Court adopted the hard-and-fast metrics of the consumer welfare standard. They did so in 1979, one year after my father, Judge Robert Bork, gave this standard its fullest definition in his magnum opus, The Antitrust Paradox.
Antitrust enforcement that puts the protection of the American consumer at the heart of the law is consummately Trumpian. It is reflected in DOGE and the deregulatory push to return money to the people so they can vote with their dollars on what they want and need instead of letting elites in Washington choose for them. Surely President Trump agrees. After all, why else would he dispatch his Vice President J.D. Vance to warn the Europeans that their progressive antitrust policies persecute American businesses and harm Europe’s own economic growth?
With the election of Donald Trump, supporters of the consumer welfare standard were elated. For four years, Federal Trade Commission Chair Lina Khan and Department of Justice Antitrust Chief Jonathan Kanter worked to return antitrust back to the decades before the clarity of the consumer welfare standard. Under Khan, antitrust law became about protecting inefficient competitors, rectifying racial injustice, supporting labor unions, and vague notions of “fairness” over economic “efficiency”—in” short, anything the regulator wanted antitrust to do.
Which leads me to ask: Why are the 2023 Joint Merger guidelines promulgated by Biden’s Federal Trade Commission Chair Lina Khan and Justice Department Antitrust Chief Jonathan Kanter being continued in full by the new Republican, Trump-appointed FTC Chairman Andrew Ferguson? A few weeks into office, Ferguson dispatched a memo saying, “Let me be clear: the FTC’s and DOJ’s joint 2023 Merger Guidelines are in effect and are the framework for this agency’s merger-review analysis.”
This supine acceptance of one of progressive antitrust’s greatest achievements by a free-market Republican administration has progressives enraptured, from remaining Biden commissioner Alvaro Bedoya to progressive doyen Matt Stoller. But how does Ferguson’s wholesale adoption of Biden’s guideline square with the economic vision of Donald Trump?
A few weeks into office, the president told the World Economic Forum, “My administration has also begun the largest deregulation campaign in history, far exceeding even the record-setting efforts of my last term.” Yet, thanks to Ferguson, antitrust is now wedded to Brown Shoe, the 1962 Supreme Court opinion that found a proposed merger to be illegal, despite the fact that the combined company would have controlled less than 5 percent of the American shoe market.
Judge Robert Bork wrote that Brown Shoe was predicated on the mistaken and ultimately disproven belief that Congress intended antitrust law to protect “small, locally owned businesses” over the interests of consumers. For this reason, courts had long treated Brown Shoe as a discarded piece in the museum of legal curiosities. Thanks first to Biden’s appointees, and now to Andrew Ferguson, Brown Shoe will be taken into consideration in advising courts how to apply the law.
But don’t look for the consumer welfare standard in the Ferguson-Biden merger guidelines. These principles, now enforced by the Trump Administration, don’t even deign to mention a standard that has been the central principle of antitrust jurisprudence for 46 years.
Without this standard and its reliance on econometrics, antitrust law is no longer a tool to promote efficiency and competition in the service of the consumer. It becomes a weapon the regulator can point in any direction he or she wants, at any politically disfavored target.
This ambiguity also kills the predictability businesses need to thrive. “Thanks to politicians, companies can be accused of improper behavior regardless of what they do,” economist Dan Mitchell wrote. “If they charge more than their competitors, they are guilty of monopolistic behavior. If they charge the same, then they are colluding with competitors. If they charge less, then they are using predatory pricing to drive out competition.”
So why, then, did Chairman Ferguson extend Biden-era rules that will continue to enhance the power of government over the free market? Former FTC Commissioner Christine Wilson famously declared that the goals of progressive antitrust are Marxist at their roots. The 2023 Merger Guidelines were central to that strategy. Why would any Trump appointee go along for that ride?
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Robert H. Bork, Jr. is president of the Antitrust Education Project.
Source: https://amgreatness.com/2025/03/10/why-is-trumps-ftc-chairman-continuing-lina-khans-socialist-policies/
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