By: Tom Hebert and Joseph Murgida
Today, the Senate Judiciary Committee is holding a confirmation hearing on Jonathan Kanter’s nomination to lead the DOJ antitrust division. If approved, Kanter’s nomination would seal a major victory for the left in their crusade to upend American antitrust law.
Kanter has railed against the consumer welfare standard, which has anchored antitrust law for nearly four decades, as “judicial activism.” Under the standard, antitrust cases are generally only brought against companies that are harming consumers through tangible effects like high prices, reduced product quality, or lack of choice. Antitrust enforcers must also consider whether there is a procompetitive justification for the business conduct in question, and whether the conduct results in countervailing benefits to consumers and competition.
Kanter would abandon the consumer welfare standard, which developed through decades of common law and expert consensus, in favor of a European-style antitrust approach that ignores harm to consumers and focuses on harm to inefficient competitors. Kanter has slammed the consumer welfare standard as “judicial activism” and “central planning,” and argued that courts should not consider economic efficiency when ruling on antitrust cases.
Ever since President Biden won the 2020 presidential election, hipster antitrust activists have push for a nightmare trifecta of Jonathan Kanter, Lina Khan, and Tim Wu to dictate the Biden administration’s antitrust policy. Some have even sported mugs in support of these foes of the long-held consumer welfare standard. Khan, who has relentlessly smashed bipartisan norms since her bait-and-switch confirmation as FTC Chair, would share enforcement authority with Kanter. Given that Kanter has called Khan a leader in a new “golden age of antitrust enforcement,” it is clear that he would be fully on board with Khan’s radical agenda if confirmed.
As Khan and Wu have already found their way into prominent positions within the Biden administration, Kanter’s nomination completes the liberal dream team. But what may be a dream to the left would prove to be the beginning of an extreme regime of unelected radicals to target businesses across a variety of industries.
Without the consumer welfare standard serving as a guide for enforcement, businesses across industries will fear engaging in robust competition with rival firms. This lack of competition will directly translate to higher prices and less innovation. A more aggressive posture towards merger and acquisitions will deter startup companies, a very real threat if Kanter and Khan are allowed to enact their “golden age” of abusive antitrust litigation.
Republicans should reject Jonathan Kanter’s nomination this Wednesday. If ultimately confirmed as DOJ antitrust chief, Kanter would be a leading force in a dark new antitrust era for American businesses and shoppers.