The FTC and Antitrust Division held a workshop last week focused on labor issues, which superficially appears to be a continuation of the last Administration's policies. Since 2016 the agencies have warned the business community that agreements not to compete for workers may be charged criminally, and indeed have followed through on that threat. The DOJ has also alleged "monopsony" effects in a few merger cases, most recently in the publishing industry, claiming the transaction would depress what publishers paid to authors in certain circumstances. All of these cases fit easily into a traditional view of antitrust where the law is intended to protect the competitive process, not pick sides between management and labor in the way that labor laws do in an explicit way. Congress and the courts have navigated a coherent set of rules for when and how the labor laws and the antitrust laws interact with each other, with antitrust being about efficiency of markets and labor laws making policy choices about when labor's interests should override efficiency concerns. The antitrust laws have both statutory and non-statutory exemptions to accommodate Congress's policy directives about the traditional importance of labor interests in American economic life. Congress is the correct place for such policy trade-offs, as it is explicitly meant to accommodate rival political interests. The antitrust laws have enjoyed long-standing, bipartisan support because enforcement is politically neutral, instead of rewarding friends and punishing enemies it is concerned with stopping private restraints on free competition. Whoever's political interests are helped or harmed by enforcement should be of no concern to the agencies.
A quick glance at the workshop's speakers and agenda makes clear that the current FTC and DOJ appear to favor labor as a political interest group over the efficient functioning of labor markets free of anti-competitive restraints. There was discussion around the "problem" of employer power in the absence of market concentration (in universities of all places!), the need for collective bargaining rights for gig workers, and why restraints on worker mobility were bad. The speakers included the Assistant Secretary of Treasury discussing wage stagnation, the Assistant Secretary of Labor discussing worker protections, and the president of the Economic Policy Institute, a labor union think tank. One entire session was devoted to hearing from the representatives of labor unions.
If congress wishes to enact a pro-labor agenda into law then so be it. It has that power. If the FTC and Antitrust Division start using the antitrust laws for explicitly political purposes it will undermine the Sherman and Clayton Act's legitimacy, and ironically the political support that the FTC and DOJ have long enjoyed.