Case Study 2: The Neo-Brandeisian Antitrust Experiment, 2021–2024

In June 2021, President Biden nominated Lina Khan, a 32-year-old Columbia law professor, to chair the Federal Trade Commission. The Senate confirmed her on a 69–28 vote, with significant Republican support. Within months, it became clear that the new FTC was attempting something unprecedented in modern antitrust history: a systematic challenge to four decades of doctrinal consensus, conducted through enforcement, rule-making, and merger guidelines.

This case study walks through the experiment's design, its principal cases, the conservative legal critique, and the progressive structural-power defense — without taking sides. The neo-Brandeisian challenge is one of the live ideological battles in American economic policy, and a textbook reader should understand the strongest version of each position.

The intellectual foundation

The neo-Brandeisian school takes its name from Justice Louis Brandeis (1856–1941), who argued in books and opinions that concentrated economic power was incompatible with political democracy. After the Chicago School consensus took hold in the 1970s, this older tradition lay mostly dormant in academic and judicial discourse — present in critiques but not in mainstream antitrust doctrine.

The revival began in the 2010s. Lina Khan's 2017 Yale Law Journal note, "Amazon's Antitrust Paradox," argued that Amazon's strategy — using losses in some segments to build dominance, then leveraging dominance into adjacent markets — could not be challenged under the consumer-welfare standard because Amazon kept consumer prices low. The note became a touchstone. Tim Wu's The Curse of Bigness (2018) made the broader historical and theoretical case. Barry Lynn's Cornered (2010) and Zephyr Teachout's Break 'Em Up (2020) extended the argument. The 2020 House Judiciary Subcommittee report on digital platforms ("Investigation of Competition in Digital Markets," 449 pages, October 2020) embedded many neo-Brandeisian premises in an official congressional document.

The intellectual critique had purchase across both parties. Senator Josh Hawley (R-MO) wrote a Brandeis biography and has been a vocal proponent of breaking up big tech. Senator Elizabeth Warren has long advocated breaking up large platforms. The 2020 House investigation had bipartisan participation (though the Republican signing list was thinner than the Democratic). Khan's 69–28 confirmation, with substantial Republican support, was the formal endorsement that the bipartisan moment had reached the executive branch.

Principal cases and rulemakings

The 2021–2024 FTC pursued a notably ambitious agenda. The most consequential pieces:

The Microsoft–Activision Blizzard merger challenge. Microsoft announced in January 2022 that it would acquire Activision Blizzard for $69 billion. The FTC challenged the merger in December 2022, arguing the deal would harm competition in video-game subscription services and cloud gaming. Federal courts denied the FTC's preliminary injunction in July 2023; the Ninth Circuit affirmed in May 2024. The merger closed in October 2023. The FTC's loss was on the legal merits.

The Amazon antitrust case. The FTC, joined by 17 state attorneys general, filed FTC v. Amazon.com in September 2023. The complaint runs about 172 pages. Core theory: Amazon uses a set of interlocking practices — penalizing sellers that offer lower prices on other platforms, requiring sellers to use Amazon's expensive fulfillment services to qualify for Prime, prioritizing Amazon's own products in search — to maintain monopoly power in two markets (online superstore services and online marketplace services). The case is in active discovery as of 2026; trial is expected later in the decade. It is the largest antitrust case the federal government has filed since the 1990s Microsoft case.

The Meta (Facebook) case. Originally filed in late 2020 (under the prior FTC, but pursued aggressively under the Khan FTC), the case alleges Meta acquired Instagram (2012) and WhatsApp (2014) to neutralize potential competitors. After an initial dismissal in 2021, the case was amended and is proceeding.

The non-compete rule. In April 2024, the FTC issued a final rule banning most non-compete clauses in employment contracts. The rule was vacated by a federal district court in Texas in August 2024 on grounds that the FTC lacked statutory authority to issue substantive competition rules. Appeal pending as of 2026.

The 2023 merger guidelines. In December 2023, the FTC and DOJ jointly issued new merger guidelines, replacing the 2010 horizontal guidelines and the 2020 vertical guidelines. The new guidelines lowered concentration thresholds and added new theories of harm (labor-market concentration, platform-neutrality concerns). The guidelines do not have the force of law but signal enforcement priorities.

Other cases. Challenges to Tapestry/Capri (won at preliminary injunction; parties terminated), Kroger/Albertsons (won at preliminary injunction; parties terminated), Penguin/Simon & Schuster (won; merger blocked in 2022), various pharmaceutical mergers.

The conservative critique

The strongest version of the conservative legal and economic critique:

Doctrinal critique. The Chicago School consumer-welfare standard is not arbitrary. It is the product of decades of theoretical and empirical work establishing the limits of structural antitrust as actually administered. Under structural standards from the 1950s and 1960s, antitrust enforcement produced demonstrably bad outcomes — protecting incumbents from competition, blocking efficient mergers, taxing business activity in ways that hurt consumers. The Chicago revolution corrected real problems. To abandon it without articulating a clear alternative legal standard is to invite a return to those bad outcomes.

Statutory critique. The Sherman Act and Clayton Act are the antitrust statutes; their text does not authorize enforcement against "concentration" abstractly, nor against the broader political-economic concerns neo-Brandeisians invoke. To enforce against such concerns is to legislate from the executive branch — to reach beyond the statutes Congress passed. If neo-Brandeisians want to expand antitrust to cover new theories of harm, the proper route is congressional action.

Empirical critique. Many of the harms neo-Brandeisians identify (innovation effects, labor-market concentration effects, political-economic effects) are real concerns but have not been measured precisely enough to support legal enforcement under prevailing evidentiary standards. The claim that "concentration is increasing" depends on measurement choices contested in the academic literature (industry definitions, geographic-market definitions, the treatment of multinational vs. domestic firms). Some careful work (Carl Shapiro 2019; Chad Syverson 2019) has argued that headline concentration findings are partially artifacts of measurement.

Predictability critique. Aggressive enforcement under uncertain legal theories creates regulatory uncertainty that itself chills investment, particularly procompetitive merger activity. M&A is one of the principal mechanisms by which capital and management talent are reallocated to higher-value uses. Discouraging it without clear legal basis is bad economic policy.

Track-record critique. Several of the FTC's high-profile cases lost on the merits — Microsoft/Activision being the most prominent. Wins on the merits are how doctrine is built; losses, particularly on theories the courts find unpersuasive, can entrench bad doctrine and waste resources.

The conservative critique is articulated in the Wall Street Journal editorial pages, in Federalist Society programming, by economists at the American Enterprise Institute and the Mercatus Center, and by a substantial fraction of the antitrust bar (which is, importantly, not a uniformly conservative bar — many longtime Democratic antitrust lawyers have shared parts of the doctrinal and statutory critique, even when sympathetic to the political-economic concerns).

The progressive structural-power defense

The strongest version of the progressive defense:

Doctrinal defense. The Chicago School consumer-welfare standard was never the only legitimate reading of the antitrust statutes. The Sherman Act of 1890 and the Clayton Act of 1914 reach considerably broader conduct than narrow consumer-welfare doctrine recognizes. Reasonable judges in the 1960s and 1970s read the same statutes more broadly. The Chicago revolution was a doctrinal choice, not a doctrinal necessity — and choices can be reconsidered when their results prove unsatisfactory.

Empirical defense. Industrial concentration has measurably increased across most U.S. sectors since 2000, by multiple methods (Grullon, Larkin, Michaely 2019; CEA 2016 and 2023 issue briefs; De Loecker, Eeckhout, and Unger 2020 on rising markups). The measurement disputes are real but have not overturned the central finding. Whatever the proper legal response, the underlying empirical claim — that the U.S. economy is more concentrated than it was thirty years ago, with implications for prices, wages, innovation, and political economy — is well documented.

Precedent-building defense. Cases sometimes lose on the merits as part of building precedent for future cases. Several major antitrust precedents (including the Standard Oil and AT&T cases) were not won on the first try. Aggressive litigation that surfaces gaps between law and economic reality is itself a contribution to legal development, even when individual cases lose.

Political-economic defense. Concentrated economic power generates concentrated political power. This is not a controversial empirical claim — corporate political spending, lobbying, and regulatory capture all increase with size. The neo-Brandeisian claim is that antitrust law was originally intended to address these concerns, and that judges and enforcers in the post-1970s consensus narrowed the doctrine in ways that no statutory text actually required.

Statutory defense. While some neo-Brandeisian theories may require legislative action to fully implement, much of the FTC's 2021–2024 agenda — including merger challenges and Section 5 enforcement — operates within existing statutes. The non-compete rule is a closer call (the district court that vacated it found statutory authority lacking) and serves as a reasonable test case for the limits of FTC authority.

What the experiment produced

By the end of 2024, the experiment had produced several outcomes:

• Procedural changes that may persist regardless of administration: tougher merger review processes, more demanding pre-merger consultations, more aggressive use of Second Requests.
• Doctrinal pressure that has not yet produced major court victories on neo-Brandeisian theories but has surfaced the doctrinal questions in ways that earlier enforcement had not.
• Bipartisan elite reassessment of the Chicago consensus, with even market-oriented commentators (Niskanen Center, some Federalist Society programs) acknowledging the political-economic concerns deserve serious engagement.
• Substantial losses on the merits in litigation, which the conservative critique frames as evidence that the theories outpace the law and the progressive defense frames as expected costs of doctrinal evolution.

The Trump 2.0 administration has signaled a partial pullback. FTC Chair Andrew Ferguson, confirmed in 2025, has indicated a return to more traditional consumer-welfare priorities, while preserving some neo-Brandeisian elements (continued attention to platform conduct, ongoing pursuit of the Amazon case, retention of some 2023 merger-guideline elements). The "experiment" thus continues in altered form rather than terminating cleanly.

The honest summary

A reader who finishes this case study should be able to articulate four things: the genuine doctrinal innovations the neo-Brandeisians attempted; the genuine doctrinal limits the conservative critique identifies; the empirical findings (industrial concentration; mixed track record of cases) that constrain both sides; and the underlying values disagreement about whether antitrust should target consumer prices alone or broader concentrations of economic power.

This is a case where the disagreement is partly empirical (does concentration really cause the harms neo-Brandeisians cite?), partly legal (does the statutory text support the broader theories?), and partly normative (should antitrust be principally about consumer prices or about political-economic structure?). The textbook does not resolve the dispute. It teaches the dispute, with the strongest version of each side, and trusts the reader to think it through.