From A to Y: Antitrust Notes from the ABA and Y Combinator

April 4 marked the end of a notable week in global competition policy. The American Bar Association’s (ABA) Antitrust Section held its annual spring meeting, while Y Combinator hosted a virtual “Little Tech Competition Summit.” At the same time, Congress held two competition hearings, the U.S. Justice Department (DOJ) hosted an event on competition and speech, and senior antitrust enforcers spoke at an event put on by Capitol Forum and FGS Global.

With all the activity, even the staunchest neo-Brandeisian may have come to appreciate the value of occasional event consolidation.

Despite the varying locales and interests, many common areas of agreement appeared to emerge.

Artificial Intelligence

Across the board, many speakers agreed on the benefits of a light-touch approach to artificial intelligence (AI). At the ABA, several panelists noted the Trump administration’s focus on reducing AI’s regulatory constraints, rather than attempting to micromanage AI development, while at other events, Federal Trade Commission (FTC) Chairman Andrew Ferguson stated that existing laws should suffice to police any concerns relating to AI. Still, panelists expressed concern that the states are considering very disparate approaches to AI, some of which could needlessly impede development.

In the same vein, at Y Combinator, speakers criticized former President Joe Biden’s AI safety policy and encouraged Congress to protect people’s property rights—such as in their personally identifiable information and copyrighted material—without creating a burdensome regulatory regime.

There were glimmers of hope from across the pond. While acknowledging that Europe takes a “structural approach” to markets and that the EU’s AI Act prioritizes “product safety” over innovation, several European speakers acknowledged that AI partnerships can promote competition, that competition reviews should conclude expeditiously, and that Europe has failed to identify any genuine competitive problem, or even to define “AI markets” at all. European speakers also acknowledged that Europe needs deep capital markets and praised portions of the Draghi Report, which broadly speaking advocates for a lighter touch approach to competition in Europe.

At the same time, Ferguson sharply criticized Europe for targeting U.S. firms, labeling Europe’s Digital Markets Act (DMA) a tax on American companies.

The Consumer Welfare Standard

Among domestic speakers and attendees, the consumer welfare standard received broad bipartisan support—with one notable exception. During a showcase panel at the ABA, the Progressive Policy Institute’s Diana Moss encouraged the antitrust agencies to return to the consumer welfare standard as the touchstone for antitrust enforcement. Upon hearing these comments, one attendee, Columbia University law professor Tim Wu, an architect of former President Biden’s antitrust agenda, started to boo loudly.

Notwithstanding this jeer, the current administration appears to agree on the standard’s benefits. At Y Combinator, Assistant U.S. Attorney General for Antitrust Gail Slater agreed that the consumer welfare standard represents antitrust’s legal standard, rather than the amorphous concept of “market realities.” She correctly noted that the consumer welfare standard concerns more than just price competition, as it also encompasses competition based on quality, variety, and innovation in new products.

Merger Policy

In another area of consensus, many speakers and attendees applauded the Trump administration’s more grounded approach to mergers, which recognizes that acquisitions can improve efficiency and capital flows. At the ABA, many speakers welcomed the new administration’s openness to settlements and anticipated that the agencies would ground challenges in traditional theories and economic evidence, rather than progressive prognostications.

At other events, Slater expressed an openness to meaningful consent decrees that would resolve competitive concerns about mergers, while Ferguson affirmed that he opposes any ideological biases against M&A activity. Such a practical, traditional enforcement approach should allow pro-competitive deals to move forward, while conserving resources to focus on transactions that raise genuine concerns.

In the hallways, many attendees expressed surprise that the agencies are, for now, keeping the new merger guidelines and Hart-Scott-Rodino reporting form, with hope that the agencies would revisit these documents over time, particularly given the emphasis that both the White House and DOJ have placed on reducing barriers to competition.

The Tech Sector

Finally, the various events also included some areas of agreement regarding the tech sector. Most notably, virtually every domestic speaker endorsed law enforcement, rather than regulation, as the proper approach to the tech sector. Few, if any, speakers called for a return of the various Biden-era legislative proposals that would have imported European regulatory concepts into American antitrust law.

Ferguson, for example, stated that he prefers antitrust enforcement over regulation, as ex-post enforcement produces better economic outcomes. In this regard, both Slater and Ferguson committed to vigorous enforcement of the antitrust laws, including robust enforcement in the technology sector. Slater rightly opposed special treatment for “national champions,” while Ferguson noted that M&A provides “little tech” with needed capital.

For these reasons, Americans should have confidence that, going forward, U.S. competition policy will return to its roots of measured antitrust enforcement, rooted in precedent and economics, based on the welfare of consumers while keeping in mind the global competitive landscape.