The Antitrust Revival Has an Ambition Problem
After forty years of weak enforcement, regulators have declared war on big tech. The legal victories are real. The structural change has not arrived.
In August 2024, a federal judge ruled that Google had violated antitrust law by maintaining an illegal monopoly in the general search and search text advertising markets. It was the most significant antitrust ruling against a technology company since the Microsoft case in 2000. The remedy phase — where the Justice Department will argue for structural relief including potentially requiring Google to divest its Chrome browser or its Android operating system — is ongoing.
The ruling followed a string of antitrust enforcement actions that have defined the Biden and early Trump administration regulatory posture toward large technology companies: the FTC's antitrust suit against Meta, ongoing; the DOJ's separate antitrust action against Google's advertising technology business, resulting in a finding of monopoly maintenance in 2025; the FTC's enforcement actions against Amazon; the collapse of several large technology acquisitions under antitrust pressure.
This is a genuine shift from the enforcement posture of the previous twenty years, during which the consumer welfare standard — under which mergers and market practices are permitted if they do not demonstrably harm consumers through higher prices or reduced quality — was applied so permissively that it permitted the formation of market structures in technology that would have been unimaginable in the earlier era of American antitrust enforcement.
The shift has produced real victories in court. Whether it will produce structural changes in the technology industry is a separate question, and the answer is more uncertain.
The consumer welfare standard and its discontents
The Chicago School's consumer welfare standard, articulated most influentially by Robert Bork in The Antitrust Paradox (1978) and progressively adopted by courts over the following decades, held that antitrust law should concern itself only with effects on consumer welfare — primarily understood as price effects. Mergers that did not result in higher prices for consumers were presumptively permissible; market dominance achieved through superior efficiency was not an antitrust problem.
The standard was coherent as applied to the industries of the 1970s and 1980s. It was poorly suited to industries whose dominant products are free to consumers, whose competitive harms operate through data accumulation and platform lock-in rather than price increases, and whose acquisitions of nascent competitors (Instagram and WhatsApp for Meta; Waze and YouTube for Google) were difficult to evaluate under a price-effect framework at the time of their occurrence.
The neo-Brandeisian critique — associated with Lina Khan, who became FTC chair in 2021, and with the academic work she and others produced — argued that the consumer welfare standard was both doctrinally incorrect (antitrust law historically concerned itself with concerns beyond consumer prices, including effects on workers, small competitors, and democratic political power) and substantively inadequate for the technology industry.
Metaculus forecasts a 51 percent probability that at least one major technology company — Google, Meta, Apple, Amazon, or Microsoft — will be required by court order or consent decree to divest a major business unit before 2030. The cases are moving; the remedies are not yet determined.
The remedy problem
Winning an antitrust case is one thing. Getting effective structural relief is another.
The Microsoft case of 2000 — the last major technology antitrust victory before the current revival — resulted in a finding of monopoly maintenance but no structural remedy. The Bush administration negotiated a behavioral consent decree that permitted Microsoft to retain its operating system monopoly in exchange for constraints on certain licensing practices. The constraints were imperfectly enforced and largely superseded by the advent of the internet, which disrupted Microsoft's competitive position far more effectively than any antitrust remedy.
The Google search case is proceeding in a context where the relevant technology is changing rapidly. Google's search monopoly was built on a desktop computing paradigm; the emergence of AI-powered search alternatives has already begun to fragment the search market in ways that may erode Google's dominance more effectively than divestiture of Chrome or Android would. Requiring Google to spin off Chrome in 2027 might be less effective as an antitrust remedy than it would have been in 2015, because Chrome's role in maintaining Google's search monopoly may be declining in a world where AI assistants are becoming the primary interface for information queries.
This timing problem — antitrust remedies operating on five to ten year timescales in industries that change on two to three year cycles — is structural. It is not solved by more aggressive enforcement; it is a feature of the interaction between litigation timelines and technology cycles.
Kalshi was trading a contract on whether Google will be required to divest a major business unit (Chrome, Android, or its advertising technology stack) as part of the antitrust remedy at 33 percent. The DOJ has asked for structural remedies; the court may not agree.
Nathaniel Brooks is a contributing writer at The Auguro covering constitutional law, the Supreme Court, and the legal dimensions of technology and democracy.