Will Gail Slater Bring Fairness Back to the Antitrust Division?

“Ensure the law is enforced both vigorously and fairly, with clear rules.” That’s how Gail Slater, the recently confirmed Assistant Attorney General for the Antitrust Division of the Department of Justice, described her enforcement philosophy. She expects this formula will “preserve economic liberty” and further President Trump’s goal to make “America competitive again.” That’s a tall order for Slater and the Antitrust Division. 

Under the Biden administration, antitrust law became an escape valve for political priorities that foundered in Congress. Diversity initiatives not gaining traction on the Hill? Shoehorn them into antitrust law by making a company’s hiring practices a question of market power. Climate bill failing? Transform environmental goals into a consumer protection issue. By 2024, antitrust was sometimes easier to define by the few things it did not include than by what lies at its center. Slater has the experience and discipline to return antitrust to its primary focus: protecting competition. 

Another challenge facing Slater is that the concept of competition has become amorphous at the same time that defining the relevant market has become more consequential. Imagine, for example, a dynamic market in which consumers have a choice between several established companies and emerging startups. This market, like so many others in our age of technological innovation, evades precise definition because consumers have many different means to achieve similar ends. Defining such a market in an artificially cramped and stagnant way could lead some enforcers to suspect that anti-competitive behavior is afoot among the established companies, even where none exists. This approach fails to look through the eyes of consumers and, thus, does not consider how they engage with and benefit from new products and tools. 

This hypothetical scenario became reality when the Biden DOJ sued Visa for allegedly monopolizing the market for debit card network services, of which Visa has a 60% market share. Under traditional understandings of antitrust law, a 60% market share is not enough to constitute a monopoly. Nevertheless, according to the DOJ, Visa’s volume discounts and incentive payments amount to anticompetitive behavior. A consumer-centric analysis, however, makes clear that these tactics improve rather than hinder consumer welfare by expanding and improving the overall payments network. Volume discounts encourage complementary investments that expand consumer options by increasing adoption of related payment tools such as Apple Pay. Incentive payments likewise can have pro-consumer effects by encouraging investment in novel technologies and, thus, creating an expanded payments network ripe for new entrants and ideas. Broadening the aperture of the market definition and focusing on the consumer perspective shows that theories like DOJ’s are willfully blind to relevant players and incentives.

The Visa case is important because it exemplifies how ideological dogma can blind antitrust enforcers. When big is always bad, and efficiency is always evidence of anticompetitive behavior, antitrust loses focus on competition as its North Star and consumer welfare as its primary metric. In this way, dogmatic enforcement results in the sort of uncertainty and unpredictability that may undermine a key component of competition—new market entrants and innovation. Politically and ideologically driven enforcement ironically risks benefiting incumbents with deeper pockets and better connections—the very sort of anti-consumer cronyism that antitrust law is intended to combat.

Under Slater’s leadership, the Antitrust Division should prioritize targeting the most egregious anticompetitive behavior rather than cases in which evolving markets make determinations of such behavior more difficult. This means focusing on clear instances where dominant firms harm competition by abusing their market position to exclude rivals, engage in predatory pricing that eliminates competition, or implement exclusionary contracts that foreclose market access.

That is precisely what Slater has said she intends to do. She said at her confirmation hearing, “resources are of course a very important consideration in antitrust litigation.” By concentrating those resources on unequivocal abuses of dominant market power, Slater’s Antitrust Division can achieve meaningful victories that benefit market participants and consumers alike, while at the same time establishing clear precedent that guides future enforcement actions. Rather than pursuing novel theories in rapidly changing markets where competitive dynamics are still developing, Slater should direct the Division’s limited resources toward cases where anticompetitive behavior causes demonstrable and substantial harm to consumers.

The Antitrust Division should also strive to exercise greater humility when evaluating rapidly evolving markets, particularly those driven by technological innovation. That’s because, in such contexts, today’s apparent monopolist may be tomorrow’s cautionary tale of creative destruction. Consider how MySpace dominated social media before Facebook’s rise, or how BlackBerry controlled the smartphone market until Apple and Android entered the scene. Regulatory attempts to artificially constrain dynamic competition through overzealous enforcement without evidence of consumer harm risks stifling the very innovation that has made American economic growth the envy of the world.

Slater can also help champion a return to per se rules that simplify compliance and enforcement—a win for companies and consumers alike. In recent decades, antitrust jurisprudence has increasingly relied on the rule of reason, necessitating complex, fact-intensive inquiries that create uncertainty for businesses and strain the Division’s resources. Slater can trade out this method for bright-line prohibitions of clearly anticompetitive conduct; this would provide businesses with greater certainty about compliance obligations while enabling more efficient enforcement actions. For instance, naked self-preferencing arrangements would get expedited treatment under per se rules. This approach would allow the Division to resolve straightforward cases more efficiently while reserving complex rule of reason analyses for truly novel circumstances where competitive effects are genuinely ambiguous.

Slater has a historic opportunity to reorient the Antitrust Division. By emphasizing clear per se rules, focusing on egregious violations, and prioritizing consumer welfare above political ideology, she can fulfill her promise to enforce the law “both vigorously and fairly.” This approach will both preserve economic liberty and support President Trump’s vision of making America competitive again—not through government intervention, but by allowing markets to function as they should. The result will be an antitrust regime that protects competition rather than competitors, promotes innovation rather than stagnation, and serves the interests of American consumers rather than radical political agendas.