Braden Hammond, J.D. Candidate, 2026

American antitrust law has recently been at the forefront of the news cycle.  Recent headlines highlight antitrust concerns regarding Google’s digital advertising, Amazon’s alleged tactics to induce Prime subscriptions, and Nvidia’s $100 billion investment in OpenAI. Further, the transition from Former President Biden’s Federal Trade Commission (FTC) Chair Lina Khan to President Trump’s appointees, Gail Slater at the Department of Justice (DOJ) and Andrew Ferguson at the FTC, has demonstrated a vision for “America First Antitrust.” This vision is described as “an inherently patriotic endeavor that defends the liberty of everyday consumers against high prices and fewer purchasing choices.” While a renewed focus on consumer welfare is consistent with President Biden’s agenda, modern policy may still need to adapt to rapidly evolving market trends.

From the 1930s to the late 1960s, market structure-based understanding of competition, otherwise known as “big is bad,” was the predominant theory of antitrust. The idea was that a market dominated by a small number of large firms would likely be less competitive than one with many smaller competitors. The government claimed that mergers and partnerships involving formidable corporations with rivals or supply chain partners would “foreclose competition.” This approach was rejected in the 1970s by Robert Bork, a proponent of the Chicago School of Economics, who argued that the purpose of antitrust is not to protect the ‘little guys’ (small businesses), but rather to promote competition. Bork became a central figure in the neoliberal antitrust era. In his influential work, The Antitrust Paradox, Bork argues that the sole objective of antitrust should be to maximize “consumer welfare.” Consumer welfare, as viewed through the lens of antitrust, has been interpreted by courts, including the Supreme Court, to refer to the effects of competition on consumer prices.

This standard remained dominant until the Biden administration, when a new school of thought emerged with the appointment of Lina Khan as the Chair of the FTC. The Neo-Brandeisians, named after Justice Louis Brandeis, believe that small groups of industry titans who consolidate power would be detrimental to the democratic process. Justice William O. Douglas wrote, “[p]ower that controls the economy should be in the hands of elected representatives of the people, not in the hands of an industrial oligarchy.” This new approach adapts the existing consumer welfare standard to the current political climate. Lina Khan wrote, “showing antitrust injury requires showing harm to consumer welfare, generally in the form of price increases and output restrictions.” Under Khan’s leadership, the FTC shifted focus to reduced market access, harm to innovation, and decreased product quality, all of which are considered harms to consumer welfare.

Today, “America First Antitrust” focuses on price increases as the central aspect of consumer welfare. Merger review has “migrated towards assessing what is measurable – namely short-term pricing effects… and short-term productive efficiencies.” If the FTC only focuses on what is quickly measurable and demonstrable in court, price becomes the “common denominator in merger review.” However, in an era when Google, Amazon, Meta, and other big tech companies offer “gratis” services, price is not an obvious metric for assessing antitrust harm to consumer welfare. These companies offer free services in exchange for the data they collect from their platforms, which is used for purposes such as future ad revenue, training pricing algorithms, or training artificial intelligence. Courts should consider whether this data has competitive significance when evaluating big tech antitrust cases.

Sivinski et al. provide an example framework for considering the competitive significance of personal data collected by big tech companies in merger analysis. The plaintiff must:

1. Determine which data is owned or controlled by the defendant.
2. Determine whether the data is commercially available as a “product” or an “input” to products of downstream competitors.
3. Determine whether the market participant owns the data or can only access it.
4. Determine whether there are substitutes for the relevant data or if it is unique to the market participant.

Under this example framework, if a plaintiff satisfies these four steps, a court would be justified in finding that the proprietary data is of competitive significance and would indeed affect consumer welfare. Such a finding would allow courts to block mergers or acquisitions that create big tech free-service behemoths (e.g., Google’s search engine).

As competition in big tech increasingly relies on consumer data and “free” services for American consumers, courts struggle to find an impact on consumer prices, which allows companies to evade antitrust scrutiny. As the consumer welfare standard has historically evolved to adapt to changing economic and political conditions, it may be time for it to adopt frameworks suited to a modern tech era.