A curious political convergence has been reshaping U.S. antitrust policy. Conservative populists have found common cause with the so-called “neo-Brandeisians” of the left—named for the late Supreme Court Justice Louis Brandeis—in seeking to challenge big business, particularly the tech giants.
While both cohorts’ concerns about concentrated power deserve attention, their shared willingness to abandon the longstanding “consumer welfare standard” that has guided antitrust enforcement for decades threatens to undermine the very market innovations that have driven American prosperity.
For roughly 40 years, the consumer welfare standard has provided a clear, economically sound framework for antitrust enforcement. By focusing enforcers’ attention on whether business practices harm consumers through higher prices or reduced output, it has created predictable rules that allow businesses to innovate while protecting against genuine harms to competition. This approach helped transform the U.S. economy into the most dynamic in the world.
But the neo-Brandeisians’ “hipster antitrust” movement, which includes Biden administration appointees like former Federal Trade Commission (FTC) Chair Lina Khan and former Assistant U.S. Attorney General for Antitrust Jonathan Kanter, has sought to radically expand antitrust’s scope. They invoke Justice Brandeis’s century-old warnings about “the curse of bigness” to justify enforcement based on concerns about protecting labor, small businesses, and even democratic values. While such issues deserve policy discussion, they stray far beyond considerations of competition and consumer harm.
In recent days, proponents of “hipster antitrust” have found their ideological bedfellows on the right, in what some are calling “hillbilly antitrust” or “America First antitrust.” Embraced by Khan and Kanter’s successors in the Trump administration—Andrew Ferguson and Gail Slater, respectively—hillbilly antitrust advances similarly interventionist ideas under different branding.
While clothed in rhetoric about protecting “forgotten Americans” from “corporate tyranny,” the right’s new approach to antitrust shares the left’s willingness to challenge mergers and business practices that don’t demonstrably harm consumers. Both camps have targeted tech platforms, seeking to apply industrial-era antitrust concepts to digital markets that operate in fundamentally different ways from traditional industries. And both embrace antitrust as a tool to address broader societal concerns, rather than a focused instrument for protecting market competition.
The hipsters and hillbillies do appear to differ on the role that regulation should play. The Biden administration favored expanding regulation, most notably the Khan FTC’s attempt to ban employee noncompete agreements. By contrast, under the Trump administration, the FTC and U.S. Justice Department (DOJ) recently solicited suggestions for which anticompetitive regulations should be eliminated.
But taken as a whole, this left-right convergence should concern anyone who values economic freedom and innovation. In rejecting the discipline imposed by the consumer welfare standard, both approaches risk subjecting businesses to unpredictable and politically motivated enforcement based on amorphous concepts like “fairness” or “human flourishing,” rather than measurable economic effects.
Among the practical implications are that companies face uncertainty about whether efficiency-enhancing mergers will be blocked based on non-economic concerns. For example, the administration recently cleared Verizon’s acquisition of Frontier, but only after Verizon promised to abandon its DEI (diversity, equity, and inclusion) policies.
Investment in innovation becomes riskier when success might trigger antitrust enforcement, not because a company harmed consumers, but because it grew too large, disrupted established industries, or engaged in politically unpopular business practices. The results we should expect are less innovation, fewer new products and services and, ultimately, reduced consumer benefits.
The consumer welfare standard doesn’t ignore concerns like quality, innovation, and choice. Rather, it incorporates them when they affect consumer well-being. What it wisely avoids is transforming antitrust into a Swiss Army knife to address social policies better handled through targeted legislation.
None of this means antitrust should remain static. Digital markets present new challenges that require thoughtful adaptation of existing principles. Labor-market competition deserves greater attention. But these adaptations should build upon, rather than abandon, the consumer welfare framework that has served the economy well. This means developing better tools to analyze the effects of innovation, data advantages, and platform competition, not discarding economic analysis in favor of vague social goals.
Despite their surface differences, hipster and hillbilly antitrust share a fundamental misunderstanding. While they see robust antitrust as requiring more government intervention, protecting competition often means allowing market forces to work. The consumer welfare standard’s focus on protecting consumers, rather than competitors; its insistence on economic evidence, rather than speculation; and its skepticism of government micromanagement remain the best guideposts for antitrust in the digital age.
