Antitrust: a normal administration transition or at the precipice of transformational change?

The real action in the antitrust world is in the federal enforcement agencies and the courts, with Congress usually playing a minor role in policy and almost no role in case selection. The fundamental statutes passed in 1890 and 1914 and remain to this day with only minor amendments. "Personnel is policy" has been true for antitrust -- whomever is appointed as the Assistant Attorney General for the Antitrust Division, and to the open Commission seats at the FTC, have a more immediate and important impact on the law than anything else.

For a short while, at least, Congress is at the center of the antitrust world. The federal agencies are without pending nominations so are in a holding pattern (albeit quite busy litigating big cases). The Senate Antitrust subcommittee, meanwhile, is a beehive of activity, with the Subcommittee Chair Klobuchar introducing a bill that would radically transform existing law, and the Ranking Member Lee introducing his own bill that would affirm current legal standards but increase enforcement. The Antitrust Subcommittee will hold confirmation hearings for the AAG appointment, and influential activists have made clear they will not accept any of the "usual suspects" from the antitrust bar, including former Obama DOJ veterans. The activists are looking for someone who will push big doctrinal change, not just more aggressive enforcement under current legal theories and standards. 

The antitrust enterprise is usually a quiet backwater, more law enforcement than politics, with changes coming incrementally and over time based on case-by-case adjudication. Legal and economic scholars influence policy and case selection but theories take years to publish, test and gain traction at the agencies and then by federal courts. Those of us who make a full time practice of antitrust tend to ignore Congress but something is happening, I'm not quite sure what, but I'm definitely paying attention. The quote below from Senator Lee, among the most conservative voices in congress, should make us all take notice.