WASHINGTON — The Supreme Court decision on credit card fees notwithstanding, tech giants such as Google and Facebook could face antitrust scrutiny from the Justice Department if they are deemed too anti-competitively big or powerful when viewed through a lens of consumer welfare.
In a speech at a Federalist Society conference, antitrust division chief Makan Delrahim said at the core of antitrust law is that “enforcers [such as Justice] and courts continue to rely on the latest economic tools in order to improve their understanding of what may, or may not, constitute harm to competition and, ultimately, to consumers.”
He pointed to the Microsoft case of two decades ago.
“You may recall that around that time, many had argued that antitrust had no role in the dynamic software industry, and that Microsoft could not possibly violate the antitrust laws as a matter of conservative ideology,” he said.
Microsoft had argued that bundling its Explorer web browser and Windows operating system was an innovative new product. Judge Thomas Penfield Jackson saw it as a monopoly, and Delrahim agreed.
He said that not only was the case decided correctly, but that it was a testament to the idea that “the consumer welfare standard remains the goal, while our economic tools and their applications to new business models and digital markets continue to evolve.” Delrahim credited that approach to Judge Robert Bork as outlined in his 1978 book, The Antitrust Paradox, the 40th anniversary of which the Federalist Society was celebrating.