Progressives are portraying Judge Amit Mehta’s opinion in the Google antitrust case this week as a whiff for the ages.
Matt Stoller quickly penned a piece headlined “A Judge Lets Google Get Away with Monopoly.” Nidhi Hegde of the American Economic Liberties Project told HuffPost, “you don’t find someone guilty of robbing a bank and then sentence him to writing a thank you note for the loot.”
David Dayen called federal Judge Amit Mehta’s opinion “one of the most cowardly, contradictory rulings I have ever seen.”
Dayen is the author of Monopolized: Life in the Age of Corporate Power, which the Kirkus Reviews found to be a call to arms against “a system whose goal is complete control.” To believe this, however, one must ignore the biggest monopoly in the United States, one with a realistic goal of complete control. It is called government, and it currently controls 36 percent of the U.S. gross domestic product.
The federal government (24 percent of GDP) enjoys powers no business has or wants – the ability to knock down your door at dawn and drag you off to prison. During the Biden regency, regulators modeled antitrust as heavy-handed law enforcement based on advisor Tim Wu’s proposal to place “a policeman at the elbow” of practically every business of size.
You might think that the incoming Trump regulators would be different, but they’re zealously continuing the Biden guidelines for antitrust enforcement. Like their predecessors, America First antitrusters focus on shifting concerns that can allow regulators to bring a case against anyone at any time. They are proudly advancing the progressive theories of former Federal Trade Commission Chair Lina Khan and Department of Justice antitrust chief Jonathan Kanter to support Biden’s headliner lawsuits against tech companies. Gail Slater, Trump’s antitrust chief at Justice, even supported the Biden remedies for Google’s monopoly, including the spin-off of this premier search company’s world-leading browser, Chrome.
But Chrome will remain part of Google thanks to Judge Mehta’s adherence to the consumer welfare standard, the doctrine courts have applied to antitrust since 1979. Under this standard, business practices and mergers are judged by their impacts on consumers. This approach is rooted in economic analysis, shunning exotic theories and vague standards that empower the whims of judges and regulators alike.
Judge Mehta’s opinion on Google’s antitrust case is a sharp reminder to regulators in both parties that consumer welfare is still the governing principle of antitrust enforcement.
For example, Judge Mehta considered the government’s request for a ban on Google’s payments to Apple and others to make Google their default search engine. The judge outlined many possible dire consequences to equipment manufacturers like Apple and Samsung, as well as to browser developers and carriers, if these payments ended. Judge Mehta concluded that if “one or more of these adverse market impacts were to come to pass, it would harm consumer welfare. That could manifest in various ways, including higher prices, less innovation, and less competition.”
The judge also applied consumer welfare standard logic to the Department of Justice’s recommendation that Google be forced to divest Chrome, in which the company has invested billions of dollars and years of sweat to construct from the ground up.
Judge Mehta found that a divestiture of Chrome would be “incredibly messy and highly risky” because it is not equipped to work as a standalone business. Divorcing it from Google’s back-end systems, engineering personnel, data storage and software rules and protocols would make Chrome “a shell of the product that it is today.” Judge Mehta added that he is “highly skeptical that a Chrome divestiture” would “not come at the expense of substantial product degradation and a loss of consumer welfare.”
The judge did not shrink from imposing penalties on the company. It was Mehta, after all, who first declared Google a monopolist. He imposed penalties that include a mandate to share data with competitors. When faced with exotic and far-reaching remedies favored by Biden and Trump regulators, however, he consistently came back to a commitment to first do no harm. Judge Mehta refused to gaze into a “crystal ball.” He wrote that courts cannot be “myopic” and “consider the harms that might befall other market actors, even if that means, as here, forgoing a remedy that could help restore competition.”
Judge Mehta’s humility contrasts with the bombastic hubris of progressive and American First antitrusters. This Obama-nominated judge may have sidestepped a chance for lionizing headlines like the ones heaped on him after he declared Google at fault a year ago. Instead, he stuck to the facts and stayed true to his judicial principles.
There’s nothing “cowardly” about that. In his own understated way, Judge Mehta displayed independence and considerable courage.
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