Assistant Attorney General Jonathan Kanter Delivers Farewell Address

Remarks as Prepared as Delivery

In the fall of 2023, I had the privilege of meeting with a rural farming community in Minnesota.

On one hand, you might say that I was out of place. There I was, a kid from humble beginnings in Queens, New York (and a lifelong New York Mets fan), standing as the U.S. government’s senior competition enforcer on a visit to a farm that had been in the same Minnesota family for generations. On the other hand, I felt right at home. In so many ways, that rural community reminded me of my own. I grew up in a community of schoolteachers, plumbers, police officers and transit workers that embodied the same values and work ethic as the rural farming community in Minnesota. Both communities were made up of decent, caring and hardworking middle-class people who care about their community and believe in the American dream.

For generations, the family farm embodied the American dream and was the quintessential American small business. Farms would thrive from one generation to the next. Children would work the very same land as their grandparents. Farmers were not just the engine of their family, but the engines of prosperity for their entire community as well. Farms were the paradigmatic example of economic independence.

The local family farm was integral to the success of the local community: the independent community bank offering loans to buy new equipment, the corner bookstore employing kids from the local high school, the pharmacist opening the shop after hours for the family of sick children, the community physician with full knowledge of a family’s medical history because she treated the entire family, the newspaper reporting on the local high school’s PTA meeting and so forth.

The success of the family farm was not just economic, but it was cultural. Local businesses sponsored little league teams, took ads in the newspaper, donated to the local church and so much more.

What I found that day in Minnesota was not surprising, but nonetheless a heartbreaking reminder of a phenomenon that I have witnessed in communities of all sizes across the country: corporate concentration eroding the economic engines of our communities.

When I asked why, what I heard in response was grim.

• The farmers were making less for their crops even as grocery prices and the cost of seeds rose.
• Middlemen were recording record profits and stock valuations but paying ranchers less for cattle.
• Customers at the grocery store were paying more for kitchen table staples like chicken, but the profits were leaving the community rather than going to local farmers, truck drivers and workers.
• Local repair shops were no longer allowed to fix their own tractors and farming equipment, and the cost of replacement parts was skyrocketing.

What struck me most about that conversation was how the decline of the local family farm impacted the entire community. I listened as people shared stories about how their way of life was slipping away.

But they were hopeful and optimistic too. Many of them had just recently heard the term “monopoly power” and learned about the Sherman Act. And they sent me back to Washington, D.C., with a message: the work we do right here at the Antitrust Division is not theoretical — it is real and matters in the daily lives of real people. Our work is not just about the economy but about our way of life as a nation.

Thank you all for joining me today as I reflect on my tenure at the Antitrust Division. I am honored to share these remarks with friends, family and colleagues who have joined me on this journey. I am particularly grateful today for the opportunity to share deep gratitude and unending admiration for my colleagues at the Antitrust Division.

Specifically, I would like to spend time today discussing why, how, and what we have done to invigorate and revitalize antitrust enforcement. Then, I would like to spend a few moments talking to you about my observations for what comes next.

First, “the why.”

When I took office in 2021, questions about monopoly power were no longer just a technocratic concern relegated to the narrow halls of white-shoe law firms and elite academic institutions.

Our nation was experiencing a remarkable moment unlike any I had seen in my lifetime.

Americans across the country had become acutely aware of the powerful forces that were suppressing their economic freedom. Increasingly, Americans were losing faith in the American dream due to unaccountable corporate giants imposing a system of private regulation and taxation in nearly every facet of their lives.

Higher prices were fueling greater margins in the wake of the global pandemic as people struggled to make ends meet. Price increases on nearly every household staple felt like a tax.

And private regulations were stifling the necessities of life, causing economic opportunity and meritocracy to evaporate. Let me give you some examples of private regulation:

• Manufacturers imposing rules that prevented local farmers from fixing their tractors.
• Doctors and nurses being forced to seek permission from intermediaries using spreadsheets and algorithms to dispense treatments and medicine, often in ways that compromise the care of their patients.
• The town square moving to online platforms where powerful monopolists controlled which messages to promote.
• Small tech startups encountering thickets of API restrictions, payment system limitations and platform rules that stifle innovation, restrict growth and force prices to go up.

Plutocracy is its own kind of dictatorship. When companies larger, wealthier and more powerful than most world governments threaten individual liberty with coercive private taxation and regulation, it threatens our way of life.

Senator Sherman taught us that in 1890. Here is what he told the Congress when urging them to pass his antimonopoly legislation.

“Monopolies,” he declared, are “inconsistent with our form of government…If we will not endure a king as a political power, we should not endure a king over the production, transportation and sale of any of the necessaries of life.”

“If we would not submit to an emperor,” he said, “we should not submit to an autocrat of trade.”[i]

That’s why the Senate passed the Sherman Act by a vote of 51–1.[ii] And it is why our work here today, 134 years later, remains so important.

But for too long, we had forgotten the “why” when it comes to antitrust enforcement. We had forgotten that antitrust enforcement preserves the fabric of our communities and the foundational freedoms that animate the American dream.

For generations, the Sherman Act functioned as the Magna Carta of free enterprise and economic liberty.

But in recent years, we lost sight of the “why” due to a deliberate and decades-long effort to dismantle the intellectual, legal, and operational infrastructure of antitrust enforcement. From the Powell Memorandum written in 1971[iii] to the Chicago School ideologues who substituted their judgment for that of Congress, to the network of academics who radicalized institutions under the guise of ‘administrability’ and error costs, a systematic effort to defang antitrust took hold.

And it stuck.

As a result, we have been asked to tolerate private taxation and regulation in return for the remote promise that the benefits to powerful corporations would trickle down to the middle class. People intentionally underenforced the antitrust laws based on a theory that monopoly power would always fix itself by evaporating in the blink of an eye.

But that promise of trickle-down corporate profits never materialized. How could it? The theory that we should intentionally under-enforce the law because markets always self-correct was proven wrong and runs contrary to our lived experiences and common sense.

Instead, corporate concentration ushered in an era of massive wealth inequality and a declining middle class. We have seen the erosion of the promise that future generations could build and sustain families on their own terms in thriving communities, be they rural, urban or anything in between.

Exploitation of market power had become more threatening to our democratic institutions than ever before and at a level we had not experienced since the Gilded Age.

Needless to say, when I arrived at the Antitrust Division in 2021, we had a clear mandate from the public to restore and revitalize antitrust enforcement for the purpose of restoring economic opportunity and hope.

I vividly recall preparing for this extraordinary task by looking back to the illustrious history of antitrust enforcement and the storied trustbusters of yesteryear for inspiration. When you take on ambitious projects, it is not enough to know what you are going to do and how you are going to do it. You need to start by knowing why.

That journey through history led me to a speech by Franklin Delano Roosevelt (FDR) in 1936. At the time, our country’s economy had been shaken by the Great Depression, and the sense of economic despair was unlike anything our nation had ever experienced.

Addressing the country, FDR delivered the resounding refrain that “freedom is no half-and-half affair.”[iv] He spoke about how equal opportunity in the polling place and the marketplace go hand in hand. FDR explained that the “age of machinery” had, alongside its promise of new frontiers, brought “with it a new problem for those who sought to remain free…New kingdoms were built upon concentration of control over material things.”[v]

Roosevelt faced a monumental choice in how to address those new kingdoms of corporate concentration. Many countries around the world rejected market economies. Communism, socialism and fascism were on the march.

But Roosevelt chose a different path. He declared that we would preserve free market capitalism by vigorously enforcing the antitrust laws to keep markets free.

Not long after he gave that speech, FDR nominated Robert Jackson to lead the Antitrust Division. Among the most celebrated leaders in the Antitrust Division’s history, Assistant Attorney General (AAG) Jackson paved the way for a new era of aggressive and effective enforcement.

AAG Jackson understood that the country faced a choice that is eerily similar to the moment we confront today: rigorous antitrust enforcement, on the one hand, or greater government regulation, on the other. Jackson subscribed to the view that regulating competition was preferable to regulating monopolies. I agree.

At the outset of his tenure, AAG Jackson announced that “Our solution of the anti-monopoly problems must be in terms of our ideals,” which he correctly identified as “the ideals of political and economic democracy.”[vi] He clearly understood “the why” when it comes to antitrust enforcement.

This storied institution led by AAG Jackson and his successor Thurmond Arnold brought dozens of actions, including landmark cases against the most significant monopolies of the era: Alcoa[vii] and Socony-Vacuum.[viii] The Antitrust Division helped restore a more competitive economy, and the middle class saw a thirty-year period of growth in the 50’s, 60’s and 70’s that was fueled by an unprecedented pace of innovation that was geographically dispersed throughout the nation.

In 2021, the similarities to 1936 were unmistakable. They say that history rhymes. Well, it sure does. And this time it had “bars,” as the youth say.

And so, in 2021, I asked the same question as AAG Jackson: why do we enforce the antitrust laws?

Here is what I know about the answer to that essential question:

• Antitrust enforcement lowers prices by limiting the market power and resulting taxes businesses can impose on customers. But it’s not just about that.
• Antitrust enforcement increases innovation, economic growth, and prosperity by limiting the private regulation that saps entrepreneurs of opportunity. But it’s not just about that.
• Antitrust enforcement leads to greater mobility and higher wages for workers by limiting the monopsony power tax businesses can impose on their employees. But it’s not just about that.

Antitrust enforcement and competition policy have always been about restoring a healthy, fair and free economy and society that benefits all Americans and makes our lives better. “The heart of our national economic policy,” the Supreme Court said in Standard Oil v. FTC, “long has been faith in the value of competition.”[ix]

To paraphrase the Supreme Court in Northern Pacific, antitrust promotes material progress, quality, and innovation, “at the same time” that it supports our democracy and preserves a society of choice and opportunity.[x] Antitrust helps make us both prosperous and free.

This is why antitrust laws exist. This is why we enforce the law. This is why our work matters.

In 2021, we confronted the Herculean task of operationalizing our mandate to restore, revive, and reimagine antitrust enforcement for our nation. We had a clear sense of why, but the how was anything but clear.

From the beginning, we understood with deep clarity the importance and enormity of the task at hand. But Washington, D.C., is a place with a lot of thinkers and not quite enough doers. The city is filled with ideas and opinions. But the hard part is turning those ideas into action. Executing a vision to make real change is hard — really hard.

With this incredible task ahead of us, we got to work by setting forth a simple but ambitious agenda: to transform antitrust from a technocratic and bureaucratic exercise to a matter of law enforcement by going back to first principles.

We pursued an agenda of decisive action built on a rock-solid foundation of facts and law. To do so, we needed to build an infrastructure that was capable of simultaneously moving with urgency while at the same time maintaining precision and excellence. We embarked on our journey to build an antitrust enforcement agency and agenda that was fit for the modern economy and responsive to the needs of today.

I would now like to discuss how we did that.

1. Invest in our greatest asset — the people of the Antitrust Division.

At the outset, let me be clear. I inherited a talented and mission-driven workforce. The finest antitrust professionals in the world reside at the Antitrust Division.

But the team was overworked, under-resourced and swimming upstream in a merger tidal wave backed by a decades-long effort to undermine the mission of the Antitrust Division. Our headcount was down by more than 350 people compared to 1979.[xi] Meanwhile, our budget had remained practically flat for decades, despite the growing importance and complexity of the work of the division.

So, our efforts to restore antitrust enforcement began first by investing in our most valuable asset — our people. We pursued an ambitious and relentless effort to improve our budget and grow our ranks, an effort that continues to this day.

We made progress — a lot of progress. Today, our budget has increased, and our ranks have expanded. We are now about 150 people larger than the day I took office.

Our talent is off the charts. Day after day, the lawyers, economists, paralegals, professionals, and staff of this division never cease to amaze and impress me with their knowledge, expertise and dedication.

2. Develop the infrastructure to litigate at scale.

Antitrust is a matter of the enforcement of law. Our ability to litigate with excellence and to do so at scale is a critical ingredient to our success.

Early in my tenure, I announced to the Antitrust Division that we should build toward the audacious but achievable goal of being able to sustain 30 civil and 30 criminal antitrust litigation matters at any given moment in time.

We quickly announced and built a state-of-the-art Litigation Program to achieve this ambitious and essential goal. We hired over 20 experienced and talented trial lawyers, recruiting many of the finest trial lawyers in the country. These litigators bring experience from U.S. Attorneys’ and State Attorney Offices, private practice, as well as expert and trial consultant practices.

The Litigation Program has enhanced our readiness across the civil and criminal programs by providing experienced litigators to support and partner with trial teams. In our civil cases, we litigated in an unprecedented number of trials with more than 110 attorneys taking witnesses — 55 for the first time.[xii] Along the way, the newly created Document Review Unit increased our efficiency as a shared resource, assisting with priority litigation matters and performing targeted document review.

Alongside the litigators across the division, the Litigation Program and its corps of first-chair trial lawyers have ushered in a new era at the division with unprecedented success in the courtroom.

We now have our very own antitrust litigation flywheel. As more people throughout the division gain litigation experience, it creates and reinforces an ecosystem of experienced and skilled antitrust litigators. The rising tide is lifting all boats.

3. Reimagine and rebuild our technology infrastructure.

The cost of investigating and litigating had become debilitating. The sheer amount of information and data increased the strain on our technology and people, challenging our ability to keep up.

Advances in technology can enable the division to lower these costs and become more efficient. To address this, we sought out resources like the Technology Modernization Fund to overhaul our tech stack.[xiii] We worked to develop in-house AI tools and other discovery technology built for the purposes of the division — a project we called “Buster.” Through these initiatives, we have paved the way for the modernizations that are needed, but we have only just started.

4. Deepen and expand our in-house expertise.

We also made strategic steps to both deepen and to broaden our expertise. We hired experts in additional areas — data scientists who understand AI, technologists who understand the newest technological innovations and behavioral and labor economists who understand how businesses, consumers and workers act. The Division’s Economic Analysis Group became the Expert Analysis Group to reflect the broader base of skills.[xiv] This expertise is crucial to our investigations, as well as our litigation, and this bench of expertise will help us understand these issues with greater sophistication and depth.

5. Take the conversation outside of Washington, D.C.

Antitrust affects real people, but for too long the antitrust bar was having an insular conversation with itself. The only people outside the beltway that were involved in the antitrust conversation were the rich and powerful companies that were most often the targets of enforcement. We were not hearing from the people and the small businesses that depend on sound and effective enforcement.

We needed to do a better job listening to farmers, writers and little tech entrepreneurs. We needed to listen to the people most impacted by the growth and expansion of monopoly power.

To address this, we developed our Access to Antitrust Justice Initiative, which began important work to change the language of antitrust so that it is more accessible and responsive to the needs of the public.[xv] There are people with valuable input from all over the country, but we cannot invite and digest that input without giving them the right vocabulary and inviting them to the conversation.

A great example of this was our work to revise the merger guidelines. We embarked on that project with an eye toward more direct, accessible language, and we sought comments from the public.[xvi] The response was overwhelming. We received an outpouring of comments — tens of thousands of comments, not only from attorneys and economists, but also business owners, workers, farmers and consumers.[xvii]

We also engaged with the next generation of antitrust lawyers. I have had the privilege to engage with students at more than 30 schools,[xviii] and I have been blown away by their genuine excitement and belief in in the need to confront issues of corporate and monopoly power.

The next generation of budding antitrust advocates is already drawing on their lived experiences and academic work to question staid assumptions about self-correcting markets and trickle-down economics. They understand that the promise of self-determination and freedom in our society depends on freedom from the tyranny of private regulation. They believe in the importance of antitrust enforcement to our society and to our communities.

I have a great deal of optimism because of the next generation. This is just the beginning of an antitrust transformation that will last for generations. These ideas are here to stay.

6. Look to tomorrow to solve the problems of today.

Effective antitrust enforcement must always look forward. As important as it is to protect competition today, it is even more important to protect the framework for change that comes tomorrow. We are the most effective when we skate to where the puck is going, not where it has been.

At the outset of my tenure, we launched an ambitious effort called “Project Gretzky.” The goal was to identify and study emerging issues and industrial changes. For example, we examined AI before Large Language Models and pricing algorithms were subjects of everyday conversation. We examined healthcare platformization, which was rapidly emerging as a concern to providers and patients alike. Indeed, Project Gretzky incubated many of the subject areas and issues that are now driving the direction of the Antitrust Division.

The same is true for remedies. We developed a framework for effective, forward-looking remedies in conduct cases that look ahead to protecting the next generation of competitors and competitive alternatives. This work, which remains ongoing, is enabling us to look around the corners when proposing remedies in monopolization and collusion cases.

7. Focus on the necessities of life.

It is a reality of antitrust enforcement that, in order to be effective, we have to make hard decisions about what to prioritize. This is no easy task. To address this challenge, we developed and employed what we called the HiPs methodology — a focus on High-Impact, Programmatically Significant investigations and cases.

We decided to focus our scarce resources on the issues that matter the most to our society — issues like healthcare, housing, food, information, labor, technology. As Senator John Sherman put it: “we should not endure a king over the production, transportation, and sale of any of the necessaries of life.”[xix] We made the important decision to prioritize and focus our scarce resources on these necessities of life.

In doing so, we addressed the biggest problems by taking on wrongdoing from the biggest companies in our country: Google, Apple, Ticketmaster, UnitedHealth, Visa, American Airlines, RealPage, Agri Stats and the meat processors, just to name a handful.

We also focused issues critical to our supply chains, such as ocean shipping. And, of course, we continued intense focus on rooting our fraud and collusion in public procurement through our work at the Procurement Collusion Strike Force.

We enforced the law meaningfully and fairly. We represented the American people with courage, excellence, and unwavering adherence to the rule of law by focusing on the stuff that matters most to the everyday lives of everyday Americans.

The why and how only matter if we follow through and do the actual work of law enforcement. My third topic is to focus on what we did.

Growing up, I collected baseball cards. I would spend hours compiling cards and reviewing the stats on the back. I was fascinated with the ability to assess the performance of my favorite players and teams.

As I near the end of my tenure, I am thrilled to share the back of our “baseball card,” which reflects a historic record of activity and success.[xx] When people ask what we did during this period and what success did we achieve, the answer is: a heckuva lot!

We set forth an ambitious agenda, and we delivered with action across our entire program.

1. Monopolization

We said that we would revitalize Section 2 civil enforcement, and we did it. At the time critics said Section 2 cases were too hard, that Trinko was too big of an obstacle and that courts would not apply Section 2 to modern market realities.

Well, we proved them all wrong. We won Google Search, the first monopolization case litigated by the Antitrust Division in over 20 years, and only the second major Section 2 victory by the division in nearly 50 years.[xxi] And beyond Google Search, we are litigating numerous other major Section 2 cases involving residential housing, debit cards, smartphones, transmigrante services, concert tickets and more.

Our amicus program has helped us drive this shift in private cases as well. For example, in Chase Manufacturing, the 10th Circuit agreed with the position of the division’s amicus brief and properly distinguished a refusal to deal with a rival from a refusal to deal with a customer or third party.[xxii]

Though our hard work, I am proud to stand here and say that Section 2 is alive and well. Monopoly enforcement is the cornerstone of antitrust law. Illegal monopolies are a form of private regulation. When firms acquire and consolidate power in the market so that they can suppress competition, exclude rivals and build moats, Section 2 of the Sherman Act is the tool to restore free and fair competition. Enforcement restores conditions for innovation and paves the way for new entrepreneurs and competitive markets.

This goes for criminal enforcement as well. We said that we would bring criminal Section 2 cases, and we did it. Congress made clear how seriously it took monopolization by making violation of Section 2 a felony, and we said that we would take Congress’s choice seriously by prosecuting criminal monopolization. In 2022, We obtained a guilty plea in the first criminal Section 2 case that the Division had brought since 1977.[xxiii] In 2024, we obtained two more criminal Section 2 convictions — one in Texas and one in Idaho[xxiv] — and we are preparing for trial of the remaining defendants in a criminal Section 2 case this coming February, when a jury in the Southern District of Texas will decide whether seven defendants conspired to fix prices, allocate markets and monopolize the market for transmigrante services.[xxv]

2. Merger Enforcement

We said that we would overhaul merger enforcement, and we did it. When I started, we were confronting a massive merger wave. We faced the stark reality merging parties rarely considered antitrust risk at the front end of a negotiation but instead viewed antitrust as a navigable obstacle. That led to a new normal: patchwork quilts of carveout divestitures with high failure rates.

We decided to address the reality of that failure head on by announcing that we would only accept merger remedies that fully restore competition.[xxvi] No more patchwork quilts.

We stopped spending public resources on attempting to fix transactions that never should have left the boardroom in the first place. Instead, we used our resources to challenge illegal mergers by exercising our new litigation prowess. And our record is strong.

• We won the first ever labor monopsony merger challenge in Penguin/Random House.[xxvii]
• In the Northeast Alliance case, we won the first litigated judgment to protect airline competition in decades.[xxviii]
• And then we did it again in JetBlue/Spirit.[xxix]
• We saw more than 25 mergers abandoned in the face of Antitrust Division scrutiny.
• Perhaps most importantly, we experienced a notable decline in problematic mergers being proposed in the first place. Far fewer problematic mergers are even making it out of the boardroom. In our line of work, deterrence is the ultimate sign of success. Our track record here is off the charts.

As we updated our approach to litigating mergers, we did the same for the Merger Guidelines.[xxx] For the first time in 40 years, we set out to completely overhaul the Merger Guidelines.

We started from the core principle that our work is a matter of law enforcement. This means starting with the law itself. In 2022, we performed a comprehensive review of merger decisions. We reviewed every merger decision ever decided by the Supreme Court or a Court of Appeals. In doing so, we realized that the preexisting merger guidelines had diverged from the current state of the law.

Additionally, the preexisting guidelines had not kept pace with developments in modern analysis and market realities, especially in areas involving technology platforms, labor, entrenchment of dominant firms and private equity rollups. So, we set out to revise the merger guidelines around statutory text, binding precedent and modern economic realities.

People questioned whether the courts would adopt the 2023 Merger Guidelines. But that was the wrong question. Rather than asking courts to adopt the Merger Guidelines, we wrote the 2023 Merger Guidelines to adopt the courts. The results so far have been stellar: nine court cases have cited the Merger Guidelines — all favorable — in their first year alone.[xxxi] People said: how could we possibly cite to court decisions in the Merger Guidelines? My response: how could we not cite to court decisions in the Merger Guidelines?

3. Interlocking Directorates         

Section 2 and mergers are not the only areas where we have returned to a law-first approach. We have, for the first time in history, systematically enforced Section 8 of the Clayton Act. In 1914, Congress was concerned enough about having shared directors on the boards of competing companies that it made it a per se violation of the antitrust laws. But for decades, the law went underenforced and all but ignored.

We said that we would bring back Section 8 enforcement, and we have done it. To date, the division’s enforcement efforts have unwound or prevented interlocks involving at least two dozen companies with widespread awareness and compliance across corporate America.[xxxii]

4. Criminal Enforcement

We took on some of our most ambitious challenges on the criminal front. Our leniency program is incredibly successful, but we became too dependent on leniency applications to generate new cases. So, we undertook a case generation project. We invested in wiretaps, data analysis, expanding the Procurement Collusion Strike Force (PCSF), and growing referrals from other agencies. These efforts are bearing fruit and filling the pipeline of investigations for the next generation of criminal antitrust enforcement.

The PCSF and the Antitrust Division have opened over 150 criminal investigations and obtained over 60 convictions for crimes involving over $575 million worth of government contracts and kickbacks.[xxxiii] These cases protect our citizens and taxpayers, ensuring that government spending is not tainted by bid rigging and collusion. The PCSF would not be what it is today without the hard work and countless hours spent on outreach and forming relationships with our partner agencies. Forming bonds across disparate agencies with competing priorities can be a difficult dance, but this investment has surely paid off.

And there is much more. For example, they said we could not bring criminal Section 2 cases, but we did. They said we could not order divestiture as a remedy in a criminal antitrust case. Guess what? We did.

In the generic drug industry, we realized after many years of investigation that merely forcing the co-conspirators to admit to their crime and pay a fine was not enough. We needed to go further to repair the harm caused by a years-long price-fixing conspiracy. So, in addition to negotiating a fine to the tune of $255 million for the American public, we required the defendant to divest the portion of its business that was responsible for the price fixing, preventing the company from benefitting from the fruits of its conspiracy in the future.[xxxiv] This is what accountability in a criminal antitrust case looks like.

And last but certainly not least in the criminal sphere, we demonstrated to courts that labor market conspiracies are simply a form of fixing prices and rigging bids for individuals’ livelihoods.[xxxv] Criminal labor market cases are now a viable criminal charge that we have added to our collusion prevention toolbox. I am proud of how we shaped the law in this area, and our work remains ongoing with a major case set for trial in 2025.

5. Advocacy

Our influence is now being felt far beyond our own civil and criminal cases. Through our amicus and statement of interest programs, we are protecting our enforcement interests and helping courts understand and apply the antitrust laws in more cases than ever. We implemented the Real Time Antitrust Filing program so that we could weigh in on cases in “real time AF.”

In just three years, we have filed 43 amicus briefs in appellate courts and statements of interest in district courts, often with incredible results. In Deslandes v. McDonald’s, for example, we filed an amicus brief explaining that franchise no-poach agreements can be per se violations of the antitrust laws.[xxxvi] And the Seventh Circuit agreed, issuing a landmark decision affirming that the antitrust laws protect competition for labor.[xxxvii]

Just a couple of weeks ago, a district court in Washington State relied on the division’s statement of interest in concluding that algorithmic price-fixing can also be subject to the per se rule.[xxxviii]

6. Whole of Government

In June 2021, just a few months into the current administration, President Biden issued an executive order establishing a whole-of-government approach to competition.[xxxix] We took that mandate to heart, investing in our partnerships with agencies across the federal government to increase antitrust enforcement and promote competition. Nothing exemplifies those efforts better than our partnership with the U.S. Department of Agriculture (USDA). We have worked closely with the USDA to bring multiple cases under the Packers and Stockyards Act, revitalizing enforcement of a century-old law written to promote fairness for livestock and poultry producers.[xl] And that’s just one example.

We have expanded our partnerships with the Department of Labor, the National Labor Relations Board, the Consumer Financial Protection Bureau, the Department of Health and Human Services, the Department of Labor, Department of Transportation and many others.[xli] We have worked to ensure that competition is considered in every corner of the federal government.

7. International

We made it clear at the outset that our goal was to enforce the U.S. antitrust laws for the benefit of Americans. We never wavered from that mission. But we also recognize the reality that we live in a global economy and there are global antitrust regimes. Our ability to enforce our laws effectively depends on the ability to have open, candid dialogues with foreign enforcers. It makes us better enforcers domestically and helps elevate our practices and our understanding of economics and market realities.

For as much work as we did to build bridges at home, we also worked to strengthen our bonds with international enforcers and recapture our leadership role on the world stage in order to bolster our success domestically.[xlii] And, importantly, we have championed the idea that antitrust enforcement is critical for reinforcing and sustaining democratic institutions, a view that is shared by so many of our international counterparts.

This is just the tip of the iceberg. We have had an unprecedented run of success and action-oriented work.

Collectively, the why, the how, and the what have resulted in an enforcement program that is firing on all cylinders and delivering results for people throughout the country on the issues that matter most to the daily lives of Americans.

As my time comes to a close, I look to the future with optimism and offer a few words of advice for future generations, for my successor and for future antitrust enforcers.

1. Properly fund the Antitrust Division.

For the past three years, we have had historic impact at zero cost to taxpayers. But our work is not done. For example, the division still has not been able to access fees collected under the Hart Scott Rodino Act and the Merger Filing Fee Modernization Act. This is an existential threat to the division and future antitrust enforcement.

2. Continue updating our analytical tools and expertise to reflect evolving market realities.

As algorithms increasingly power our economy, we need to strengthen our ability to scrutinize these algorithms. Price fixing is price fixing whether it is done by a human or a robot.[xliii]

Dominant platforms continue to emerge in every area of our economy, especially in healthcare where it poses an existential threat to our health and well-being.[xliv] We need to put less focus on labels like horizontal and vertical and more focus on concepts like moats and conflicts of interest.

3. Engage with people outside the D.C. Beltway.

Antitrust enforcers make decisions that affect our entire country. We must not lose sight that our client is the American public. We have started this work, but there is so much left to do.

4. Make it less expensive to bring new cases.

We must lower costs by investing in technology to help review the swelling tidal wave of documents and data we receive. It also means containing runaway expert costs. Right now, we accrue expert fees of up to 30 million dollars — for just a single case. Experts play an important role in antitrust cases, but the costs are out of control.[xlv] We can and should do more expert analysis internally and ask courts to help end the arms race where defendants hire five experts and so we hire five too.

5. Dispel the myth that less competition at home helps the U.S. compete more abroad.

The United States is at its best when we create opportunities for U.S. businesses to emerge, innovative and thrive. Competition means the creation of more successful U.S. companies. More innovation. More opportunity. We do not need to tolerate anticompetitive behavior by a dominant U.S. firm against a small U.S. firm in order to compete abroad.

But today we have allowed our economy to become dependent on a small number of companies. For example, in the past two years, 57% of the rise in the S&P 500 has come from just seven firms.[xlvi] That makes our economy less competitive, less dynamic, and less resilient at home and abroad. We can do better. That starts with giving entrepreneurs more opportunities to grow their businesses into public companies so exit by acquisition is not the only path to financial success.

6. Protect the integrity of the process from the influence machine.

We are seeing a pervasive breakdown in the distinction between expertise and advocacy in competition policy. All over the world, money from powerful actors is finding its way into the academic and expert communities. This insidious influence has contributed to the decline of our intellectual infrastructure.

We need an open and candid conversation on how to distinguish between expertise and advocacy and build a consensus around how to address the problem of paid influencers posing as neutral observers.

7. Repeatedly remind ourselves and the public about why our work matters.

Competitive markets promote freedom, democracy and the American dream.[xlvii] That is my North Star. Since day one, I have kept a compass on my desk to remind me of that. I hope it continues to be our North Star in the future because our democratic experiment will not succeed if a few powerful companies and individuals dominate our economy.

Let me conclude by just saying thank you.

I have so many people that I want to thank at the end of my time here at the Antitrust Division.

I have so much gratitude to our international partners, who have been extraordinary. I am proud of our track record of collaboration and cooperation.

It has been a privilege and an honor to work alongside state attorneys general, who I said at the outset would be critical to our success. Our economic freedom and the success of antitrust policy is interdependent with strong state enforcement.

I want to thank our fellow federal competition agencies, which really includes so many agencies: the USDA, Department of Transportation, Department of Health and Human Services and of course, the Federal Trade Commission (FTC). It has been a true privilege and personally rewarding to work with my friend, FTC Chair Lina Khan. The relationship between the Antitrust Division and the FTC may be the best that it has ever been, and I am proud of that. We have worked together to enforce the law and protect free and fair competition.

I would like to thank the President for nominating me for this position, which has been the career honor of a lifetime, and for prioritizing competition policy as a pillar of the country’s economic success.

I am extremely grateful to the Attorney General for his leadership and unending support for our ambitious agenda at the Antitrust Division.

Finally, the staff of the Antitrust Division. This is truly a team effort, and you are all the most extraordinary group of people I have ever had the privilege to work alongside.

A special thank you to Denise Adams and Janet Ficco, without whom I would not have been able to function.

Thank you to our leadership teams — all the Deputy Assistant Attorneys General and Chiefs of Staff, my Front Office counsel and the Directors.

Finally, it will be my privilege, on Dec. 20, to hand leadership of the Antitrust Division to the finest lawyer I know — my Principal Deputy, Doha Mekki.

I will look on my tenure with deep appreciation, gratitude and unending admiration for my colleagues and unwavering belief in our mission. It has been the privilege of a lifetime to represent the American public at this important moment in antitrust history.