Jonathan Kanter has stepped down as one of Joe Biden’s top antitrust enforcers, but he is hopeful that the next administration will uphold the crackdown on corporate power that he has helped unleash.
“If we revert to a regime of lax antitrust enforcement, that is . . . the prerogative of whoever’s in charge,” Jonathan Kanter, who on Friday resigned as head of the US Department of Justice’s antitrust unit, told the Financial Times in an interview.
“But the impact on the public is unmistakable. So my expectation is that if there was a complete U-turn on antitrust, which I don’t expect, that the public demand will make that temporary.”
Since taking the job in 2021, Kanter, who made his name in private practice on high-profile tech cases, shook the establishment by rejecting the notion that corporate growth be tolerated so long as consumers were not harmed — a shift from the “consumer welfare” standard that has underpinned US antitrust policy since the 1970s.
During his tenure he has successfully blocked several major deals, and his tough enforcement posture led to a wave of abandoned deals. (“In our line of work, deterrence is the ultimate mark of success,” Kanter said in a speech last week.) Sweeping monopolisation lawsuits, once a rarity, are proceeding against Google and Apple, as well as other corporate giants, including Visa and Ticketmaster.
“We focused on the biggest problems involving the biggest companies, and we took . . . a cornerstone of antitrust law and we made that a centrepiece of our work,” Kanter said.
Alongside Lina Khan, the chair of the Federal Trade Commission, he sought novel applications of century-old competition laws to address harm against workers as well as new market dynamics such as private equity groups rolling up chunks of the US economy.
But whether he and Khan have caused a lasting sea change in corporate America or will see their signature achievements thrown out by courts or walked back by their successors remains to be seen.
Citing antitrust challenges from airfares and healthcare to the price of chicken, Kanter said: “I’m optimistic that those cases will continue to have strong appeal for the Department of Justice, regardless of who’s in charge.”
Big Tech has been a particular focus of Kanter and Khan, which, they claim, cements its dominance by acquiring competitors and reinforcing power with sprawling platforms. These trends, Kanter argued, must be addressed now to avoid distorting new technology, including artificial intelligence.
“In markets where data is core — in markets that are prone to massive scale effects and feedback loops — the risk of markets tipping to a small number of incumbent players is high,” said Kanter.
There is a risk “that the incumbents in the current generation of technology determine who gets to compete and not compete for the next generation of technology,” he added.
Kanter’s biggest win involved a years-long case — initiated under the first administration of Donald Trump — accusing Google of monopolising the market for online search. It marked only the second major victory in a DoJ monopolisation case in nearly 50 years. A judge is now deciding what remedies to impose. Kanter’s DoJ has requested a stiff penalty, including forcing Google to divest its Chrome browser and, if necessary, its Android mobile operating system.
Big Tech has fought back fiercely, and it is likely that if the cases continue they will one day land before an appeals court that will look closely at the underlying theories. Whether the majority-conservative Supreme Court unravels Kanter’s work also remains “an open question”, said Michael Carrier, a law professor at Rutgers University. Some “ambitious theories that underlay some of the cases might not get the fondest reception”.
It will be up to the incoming administration to decide whether to see through the biggest cases or settle. But early signs suggest that the Trump administration may continue to pursue a tough approach to some sectors, especially Big Tech.
“Jonathan is going to be either credited or blamed for the change in antitrust” away from convention, said Charles Rule, a partner at Rule Garza Howley who served as head of the DoJ’s antitrust division under President Ronald Reagan and favours traditionally conservative competition policy. “It is not clear that this direction will be abandoned in the future”.
Kanter “has reinvigorated long-ignored aspects of competition law and brought historic cases in a number of major industries, all with fewer attorneys than in the Reagan era,” Jon Donenberg, the National Economic Council’s deputy director, told the FT, adding that the “transformation . . . will have lasting impact for decades.”
Elizabeth Warren, the Democratic senator from Massachusetts, told the FT that Kanter “has been fearless in taking on the biggest monopolies and price gougers”.
Even those who do not share Kanter’s philosophy praise his leadership. “He had good relations on the Hill, he had good relations with the states [who joined many DoJ lawsuits],” said Rule.
Kanter, along with Khan, has also buttressed relationships with international enforcers, including Margrethe Vestager, the EU’s former top antitrust official, bringing about a rare era of transatlantic synchrony.
Known for hitting big US tech companies with multibillion-euro fines in her decade as EU commissioner, Vestager told the FT she believed their work over the past few years would outlast leadership transitions because “the approach to technology and to tech companies has changed a lot in the past 10 years”.
“Many people — in and outside of the competition community — realise that you cannot have a dynamic economy without tech competition and open market access,” she added.
Few sectors have opposed Kanter’s approach as fiercely as Big Tech.
Zach Lilly, deputy director of state and federal affairs at NetChoice, a tech association, said Kanter was part of a broader “unsuccessful attempt” by the Biden administration to “dismantle the United States’ bipartisan history of protecting consumer welfare and replace it with the Europeanisation of American antitrust”.
Indeed, Kanter’s critics say his aggressive approach to antitrust stretched the law. The monopolisation cases became “a broader excuse for the government intervening in the marketplace and substituting its views for the unilateral views of businesspeople”, said Rule.
Some argue that Kanter’s legacy has already been sealed by bringing antitrust to the mainstream, which has helped bolster bipartisan support for tough enforcement focused on chiselling away at powerful companies, and could ensure that his agenda lives on.
“The antitrust silo — he blew it up,” said Bill Baer, former head of the DoJ’s antitrust division under President Barack Obama. “He made the importance of competition enforcement relevant, meaningful to the average consumer.”
Trump’s planned nomination of Gail Slater, a top aide to vice president-elect JD Vance, to succeed Kanter could also signal continuity. Vance has expressed support for breaking up Google, and Trump called on Slater to keep targeting Big Tech.
To Kanter, the DoJ has “proven that you can have an effective, expansive enforcement antitrust agenda that is successful.”
“What we’ve done is now left to history, but it will outlast us,” he said. “It makes me proud.”
Additional reporting by Javier Espinoza in Brussels
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