Toward a Truly “America First” Antitrust: Responding to Commissioner Meador

In a new article in American Affairs titled “Antitrust and the Rule of Law,” Federal Trade Commissioner (FTC) Mark Meador continues the advancement of a new and radical vision for the future of conservative antitrust as part of what he believes is a “bipartisan” commitment to a new populist competition policy that began with the first Trump administration and has ushered in “the decade’s antitrust renaissance.” And while Commissioner Meador himself finds that the “Khanservative narrative was dramatically overblown,” what risks becoming bipartisan is indeed a dangerous overreaction on both the national conservative right and the extreme neo-Brandeisian left to some of the admitted limitations of the neoliberal era’s conventional antitrust approach.

Commissioner Meador has emerged as the leading reactionary antitrust voice on the right. His new piece distills and builds upon an earlier article titled "Antitrust Policy for the Conservative," which radically proclaimed not just that “big is bad,” but that “[t]he fundamental tension within the antitrust project is that the law is and must be oriented toward consumer welfare, but human beings are not just consumers. They are embodied souls seeking communion with their fellow man and their Creator.” This is, without question, a profound restatement of the logic of antitrust law by a sitting FTC commissioner that raises far more questions than it answers—for starters, what bearing do refusals to deal have on one’s immortal soul?

The key turn of phrase animating Commissioner Meador’s proposed new model for conservative competition policy, while not appearing in his older piece, is now fully on display: “common good,” an expression that raises similar concerns about the lack of any single and definite meaning that can be sensibly applied in the antitrust context. To be sure, this is not a term one finds in a vacuum, but something consistent with a broader agenda on the populist right to revolt against big business in the name of the working class. It also neatly aligns with the notion of “common good constitutionalism” articulated by some post-liberal and natural law thinkers, such as Harvard Law Professor Adrian Vermeule.

What this paradigm means seems to be threefold. First, rather than remain focused on the welfare effects of transactions between individuals and firms, Commissioner Meador argues that antitrust too has long and too often wrongly “ignored a political problem” concerning the relationship between the individual and “corporate power” with a focus on “powerful technology firms” whereby “the public-private lines begin to blur.” Of course, corporate power is nothing new and one wonders just how radical this notion of the common good might be. For example, does Commissioner Meador have misgivings about industrial capitalism itself, which, as Schumpeter explained, gave rise to the exceptional technological improvements that not just enabled but were driven by firms with sufficient scale and scope, as well as empowered America and the West’s global dominance and radically reduced poverty around the world?

To be sure, no conservative can equate change with progress, but suggesting that the Western system of creatively destructive capitalism is not worth defending would evince a lack of prudence unbefitting of any true conservative mind. Material and technological progress are certainly not the end-all, be-all of humanity, but a wonderful thing for it all the same—even if, as Schumpeter highlighted, creative destruction can result in the alienation of important social values (specifically the entrepreneurial spirit that makes it work), which is something with which conservatives should rightly be concerned.

Next, in Commissioner Meador’s view of the modern political economy, big may be all too common, but it is certainly not good. That is, because “allowing massive power to concentrate in the hands of a few is more likely to lead to tyranny than to a free market,” the ideal of competition for Commissioner Meador is inherently structural and decentralized. These sentiments echo other right-populists like Sohrab Ahmari, who likens the modern economy to a “Tyranny” that puts a heavy burden on society, especially workers—without, as I have explained, having any real analytical framework for thinking about the difficult problems involving welfare tradeoffs that are created by his project of political-economic egalitarianism.

Commissioner Meador’s rhetoric is similar: Workers and consumers should be able to enjoy “equal bargaining leverage” with firms by virtue of having “meaningful options” whereby it is possible for them to “take their business elsewhere.” Indeed, this decentralized sense of competition is not just a way to address antitrust’s political problem of fighting concentrated private power but also serves a moral purpose, another key dimension of the common good approach. As Commissioner Meador argues, competition is necessary for “flourishing,” which, as his earlier article makes clear, is to be understood in terms of the “human flourishing” central to classical theories of morality that date back as far as Aristotle.

The interplay of these moral and political preferences hearkens back to a pre-capitalist, if not feudal, model of political economy, because surely the collusive and monopoly concentrations of power that existed in the guild or mercantilist systems would be anathema to Commissioner Meador. It was a world where small, self-sufficient producers or yeoman farmers owned land (that is, excluding the ruling aristocracy, gentry, and, of course, the mass of peasantry bound to it), a time when legal rules like the just price doctrine worked to ensure that whatever complex commercial life existed cohered with principles of natural justice and the common good. Perhaps these were the good old days for some, but they are certainly not a world that it is either possible or desirable to return to.

Finally, for Commissioner Meador, free markets left to their own devices are not generally seen as serving the common good in economic life. As he says, “[f]ree markets are good, but they’re not self-perpetuating: it is in the interest of many large companies to try to dominate the free market and control it in order to maximize profit.” Well, actually, it is in the interests of all companies—large and small—to try to dominate the free market and control it to maximize profit, just as it is in the interest of all football teams to dominate the NFL to maximize Lombardi trophies. And when it happens, it’s not necessarily a bad thing: Sometimes the best team just wins big.

More to the point, it often doesn’t work out that way thanks to the competitive process and antitrust law. As to the former, it’s Economics 101 that high profits attract entry just as honey attracts bees, and a big reason why, as ITIF has found, the rate of nonfinancial profits in the U.S. economy has never gone beyond modest levels. The role of antitrust is also important, albeit less so, as a regime to step in when companies engage in behavior other than competition on the merits. To return to the NFL analogy, it means intervening in cases when, for example, the New England Patriots cheated by spying on other teams. And the standard remedy, of course, is not to create more structural competition to fight bigness by expanding the NFL from 32 to 320 teams, but to stop the bad behavior so that competition can work.

Needless to say, Commissioner Meador doesn’t quite see it that way. For him, “decades of free market sloganeering” have gotten us a world where “massive corporate interests have an immense amount of power over multiple facets of our lives, in a way that human society hasn’t experienced before.” (That may be a good soundbite, but ITIF has shown the actual facts demonstrate that concentration has not meaningfully increased over the past few decades.) And by getting back to the original text and purpose of the antitrust laws, Commissioner Meador hopes to fight this supposed new corporate power by eliminating the bias toward underenforcement that has helped create it through, as described in his earlier speech, an enforcement framework that “prioritizes false negatives over false positives.”

It is worth pausing here to consider all the cases over the past half century where there was probably too much antitrust enforcement due to, for example, failing to properly account for factors like competitiveness—a truly worthy goal for a post-neoliberal and conservative competition policy that could be incorporated in areas like prosecutorial discretion, broader geographic markets that account for Chinese rivals, as well as the public interest analysis used to evaluate remedies. Indeed, as ITIF has argued, it was overzealous antitrust enforcement rather than laissez-faire that essentially gave away U.S. leadership in a host of advanced technology industries such as office copying, telecommunications equipment, and television.

All in all, Commissioner Meador’s philosophy does not constitute a very good America First antitrust policy, unless one defines “America First” in a way that gives short shrift to things like wealth and power. To be sure, Commissioner Meador links his approach to the “American tradition” and conservatism of the “Burkean variety,” and it is no doubt true that the Founding Fathers were well acquainted with the fact that in a free society, power can accumulate in private hands and create problems like that of faction. But their solution in the Constitution was to limit and disperse the power of government, thus constraining factions’ ability to use the state for ill ends, rather than empowering it to curtail their underlying economic power.

Indeed, private power that arises in a free society, as opposed to by birth or government privileges, was viewed by no less than Thomas Jefferson—who Commissioner Meador invokes in his earlier speech—as not only not bad, but as consistent with a “natural aristocracy” he saw as “the most precious gift of nature for the instruction, the trusts, and government of society.” What’s more, as ITIF’s Rob Atkinson has noted, even Jefferson, the champion of the decentralized agrarian vision for political economy, became much more Hamiltonian in his outlook when the realities of America’s competition with and dependence on its then-primary rival, Britain, became all too clear.

Of course, the American vision of a free economy is not one without the rule of law, albeit not of the flavor Commissioner Meador seems to have in mind. The governance of private exchange and market transactions was to be, first and foremost, not managed by the state but governed by the deeply rooted common law tradition inherited from Britain. And, the legal rules surrounding property, contracts, and torts established by this common law tradition were, at their core, a private law regime aimed at supporting a healthy market system—a true rule of law—not a New-Deal style public or administrative model aimed at serving populist political ends like fighting corporate power. Indeed, as the Supreme Court explained in the seminal Standard Oil case, and contrary to the suggestions of Commissioner Meador, without this common law foundation, the text of the Sherman Act is unworkable (a limitation that the Supreme Court made clear in Brown Shoe also exists with the similarly sparse Clayton Act).

As to the question of competition policy and morality, while Commissioner Meador is right in his earlier article to criticize the old order for its “purely materialist renderings of the Good,” his conception of human flourishing is but one of several possible moral frameworks for a new understanding of antitrust law. Indeed, in a world where, as Schumpeter highlighted, competition is neither a set of structural conditions nor a static equilibrium, but a dynamic process of innovation, the entrepreneurial spirit that guides this process is much more than a teleology of human flourishing. Rather, as I have described, it is a heroic and indeed Homeric conception of morality and the will to power that combines both the interplay of Apollonian and Dionysian ethics that spur creativity with the Martian and also Hermetic psyches that underlie disruptive discovery—the twin prongs of Schumpeter’s “creative destruction.”

Commissioner Meador’s writings are a testament to the fact that the long-held dominance of antitrust’s old order on the right is probably over, and the battle for the soul of a conservative or “America First” antitrust has begun. But a truly “America First” antitrust should not, as Commissioner Meador’s “common good” ideal would, embrace a political and big is bad approach to antitrust law that supports greater intervention, all while ensuring markets adhere to an idea of human flourishing that is not the best-suited to the rapid, dynamic, and technologically advanced world of great power competition between the West and China. In this age of progress and power, rather than fall victim to the siren’s song of populism, the right needs an antitrust paradigm fit for the task of keeping the West innovative and techno-economically on top in the 21^st century—a Herculean labor that a properly understood Schumpeterian antitrust model, which prioritizes innovation, growth, and competitiveness, is better able to provide.