What Is MAGA Antitrust?

If it’s hard to pin down the new Federal Trade Commission’s take on antitrust, they’re still making it up.

Call it MAGA antitrust. New FTC Chairman Andrew Ferguson does, recently telling a Bloomberg podcast: “Yeah, you can call it ‘MAGA antitrust’ if you want.”

The name is cringy, but it fits. MAGA antitrust mimics the new Republican Party’s broader populist stance of a nod toward markets, coupled with an eagerness to intervene for preferred outcomes. MAGA antitrust is a mix of elements from the old political right’s favored approach, the consumer welfare standard, and that of the current political left, the disciples of which are known as neo-Brandeisians. The novel element in this new antitrust concoction is its ultimate subservience to the President.  

Ferguson describes MAGA antitrust as an expansive interpretation of the consumer welfare standard, replacing the garbled mess of court rulings that plagued U.S. competition law from its beginning. For much of the twentieth century, no one knew if antitrust laws were meant to protect smaller firms, aid lesser competitors, or shape larger societal goals. Even judges deciding the cases were often at a loss.  

Academic work began in the 1960s to clarify the aim of antitrust regulation, and by 1979, the Supreme Court adopted the idea that antitrust enforcement should aim to promote consumer welfare, in the form of lower prices and better products. The reform complemented the Reagan era’s enthusiasm for freer markets and more limited government. The consumer welfare standard went on to enjoy forty years of bipartisan support.

Then, in 2021, the Biden administration took a surprisingly radical approach, putting the self-styled neo-Brandeisians in top antitrust positions, including Lina Khan as chair of the FTC. They advocated discarding the consumer welfare standard, arguing it does not sufficiently protect against the broader societal harms allegedly caused by concentrations of private economic power. When presidential power flipped back to Republicans in 2024, many wondered if the antitrust switch would also flip back from the neo-Brandeisian approach to a return of the consumer standard.

So far, it looks more like a smush than a flip at the FTC.  

While the newly installed leadership at the commission frets about private economic power like the neo-Brandeisians, they differ in their proposed solution. Instead of discarding the consumer welfare standard and advancing a record number of proscriptive, ex-ante regulations, as the last administration’s FTC did, MAGA antitrust wants to retain, expand, and vigorously enforce the old consumer standard.

That’s certainly an improvement in terms of process. Ex-ante rules that try to predict the future are often overly rigid, hinder innovation, and inadvertently thwart emerging sources of healthy competition. Regulators creating new rules often mistake the current moment for something inherently static, ignoring markets' dynamism and potential future corrections. The consumer welfare standard’s “rule of reason” approach, favored by Ferguson, allows for more market participant attempts at innovation. Compared to the Khan-era standard, the new administration takes a more nuanced approach to balancing costs and benefits in the competitive landscape, evaluating competitive conditions on a case-by-case basis rather than one-size-fits-all rules.

But what, exactly, are they evaluating? Stepping beyond what can be economically measured to expand the consumer welfare standard could be just as bad as abandoning it. Ferguson told Bloomberg, “that the loss of innovation…or the loss of choice or product quality, even if you can’t measure it in the way that an economist would measure price and output, still matter to consumers and still matter to antitrust.”

In The Fatal Conceit, F.A. Hayek warns that “the curious task of economics is to demonstrate to men how little they really know about what they imagine they can design.” Given some of the FTC leadership’s disapproving remarks on free markets and their defenders, they’re probably not reading much Hayek, but they ignore his wisdom at peril to themselves and the U.S. economy. 

The reign of the consumer welfare standard brought enormous gains in economic learning in the field of antitrust. Increased reliance on economic evidence of harm also put up beneficial guardrails on government overreach. One needn’t believe that markets work perfectly or that economic analysis is a panacea to be skeptical about government officials bringing antitrust actions, untethered from economic proof of harm, and instead based on their distaste for certain market outcomes.

Ferguson’s actions at the FTC around online speech are one ominous note. He’s opened a public comment period for “tech platform users who have been banned, shadow banned, demonetized, or otherwise censored” suggesting that these actions may result from “unfair methods of competition.” The Supreme Court recently affirmed these private platforms’ First Amendment rights to moderate content as they wish. Using limited enforcement resources to hold a public gripe session about what is certainly a frustration for some social media users, but is also likely settled law, seems overtly political in a way the clear boundaries of the consumer welfare standard help to prevent. Not every private preference decision, no matter how displeasing to the personal politics of FTC commissioners, is an antitrust violation.

It’s strange timing for the public forum, too. Republicans just won the presidency and both chambers of Congress. Any alleged cabal among platforms to squash Republican politics would have to be a very badly failed one. On the matter of individual consumers being harmed, the President of the United States himself owns a social media platform, and White House adviser Elon Musk’s X is a haven for conservative voices online. It appears the lately much-maligned free market has the traditional concerns of the consumer welfare standard in good shape on the social media front: the price is free to these users, and platforms have more choices (including for conservatives) than ever. But the public comment period suggests Ferguson is not sufficiently satisfied with the market results and is open to intervention.  

Also, to allow for future regulatory actions, Ferguson chose to retain some of the neo-Brandeisian regulatory structure erected by Khan’s FTC. He announced he was keeping the 2023 Merger Guidelines from the Biden administration. When they were first released, the U.S. Chamber of Commerce panned the guidelines for giving “the agencies tremendous discretion to pick winners and losers, dictate market structures, and play to favored constituencies.” Conservative antitrust scholar and former general counsel at the FTC, Alden Abbott, described them at the time of finalization as, “little more than an extended discussion of theories of anticompetitive behavior that provide no true guidance as to what mergers will not be challenged.”

At the bottom of this horseshoe theory, where MAGA antitrust and neo-Brandeisians get closest to each other, it’s clear how the 2023 merger guidelines best position an FTC of either stripe to intervene in the marketplace. The policy areas of the interventions will (mostly) vary between the two administrations, as will the amount of initial deference to markets, but some amount of distrust in the merits or the sufficiency of private enterprise animates both groups’ antitrust philosophies.   

Lastly, President Trump’s penchant for direct involvement in FTC affairs might be the most ‘MAGA’ part of MAGA antitrust.

In an unprecedented move, Trump fired the two Democrat FTC commissioners, setting up what will likely be a Supreme Court decision clarifying his authority to do so. The FTC has expanded its executive functions since the 1935 Humprey’s Executer precedent. Now, we face larger questions about how the agency fits into the Constitution’s structure, if it does so at all. But whatever the constitutional questions, the dust-up over the firings and being short of a full commission certainly affects the day-to-day business at the FTC, including its antitrust work.

Another recent example of the MAGA antitrust mindset is the run-up to the FTC’s lawsuit against Meta. The case centers around then-Facebook’s 2012 and 2014 acquisitions of Instagram and WhatsApp, respectively. Dubious merits of the government’s allegations aside, the lobbying by Meta CEO Mark Zuckerberg of President Trump himself, as opposed to the customary lawyerly negotiations in FTC offices, highlights the current politicization of antitrust. When asked what his reaction would be if President Trump asked to drop or settle the suit, Ferguson responded, “The president’s head of the executive branch, and I think it’s important for me to obey lawful orders.”

Trying to flesh out the philosophical intricacies of MAGA antitrust against this politically charged backdrop is like sitting on the floor, arguing over the rules of a board game, only to have the family golden retriever run through, sending all the pieces flying. The rules matter until they don’t.

And that may be as good an explanation for the FTC’s MAGA antitrust philosophy as any.

Jessica Melugin is director of the Center for Technology and Innovation at the Competitive Enterprise Institute and an Innovators Network Foundation Antitrust and Competition Policy Fellow.