Antitrust Now: Lina Khan, Jonathan Kanter, and the Platform Cases

The Enforcement Shift

From roughly 1980 through 2020, US federal antitrust enforcement operated within the framework Robert Bork developed in The Antitrust Paradox: the only legitimate goal of antitrust law is consumer welfare measured by short-run prices. Concentration as such was not the concern. The framework produced a long period of permissive merger review and minimal monopolization enforcement, even as concentration rose across many sectors.

The Khan-Kanter enforcement shift from 2021 onward represents the first sustained departure from the Bork framework. Lina Khan at the FTC and Jonathan Kanter at DOJ Antitrust have explicitly invoked an earlier antitrust tradition that incorporates effects on suppliers, on labor markets, on long-run innovation, and on political-economic concentration alongside short-run consumer prices.

US v. Google: The Search-Default Case

The DOJ won a substantial ruling against Google in August 2024. The court found that Google's payments to Apple and other distribution partners — payments running into the tens of billions of dollars annually to keep Google as the default search engine — constituted illegal monopoly maintenance. The ruling found that without these exclusionary contracts, the search-engine market would likely have produced more competition than Google's roughly 90% share allowed.

The remedy phase, currently underway, is where the case will be decided in practice. Plaintiffs have argued for structural relief, potentially including divestiture of Chrome and Android. Defendant has argued for narrower behavioral remedies. The court's eventual decision will shape what platform remedies are available for similar cases.

FTC v. Meta

The FTC is pursuing the Instagram (2012) and WhatsApp (2014) acquisitions on "killer acquisition" grounds — the theory that Meta acquired these firms specifically to neutralize potential competition in personal social networking. The legal challenge is substantial because the consumer-welfare framework does not naturally accommodate the killer-acquisition theory, and the acquisitions were approved at the time without challenge.

The case will require demonstrating that competition in personal social networking is meaningfully affected by the absence of independent Instagram and WhatsApp, which is harder to prove than it appears. The eventual ruling will set a major precedent for whether historical acquisitions can be unwound on monopolization grounds.

FTC v. Amazon

The September 2023 complaint alleges that Amazon used its marketplace position to discriminate against third-party sellers through self-preferencing, opaque pricing rules, and forced participation in Prime fulfillment. The theory of harm tracks closely with Khan's 2017 Yale Law Journal article framing of platform power.

The case is in early procedural stages. Discovery will run for years; trial is unlikely before 2026. The case's eventual outcome will substantially shape how marketplace platforms can operate going forward, and whether the FTC can sustain the broader Khan framework in court.

Epic v. Apple

Epic Games' challenge to Apple's App Store policies — particularly the 30% commission on in-app purchases and the anti-steering rules that prevent developers from telling users about alternative payment methods — has produced mixed results. The District Court in 2021 rejected Epic's monopolization claim but found Apple in violation of California's Unfair Competition Law for the anti-steering rules.

The Ninth Circuit largely affirmed the lower court in 2023. The Supreme Court declined to hear the appeals from both sides in 2024. Apple has been forced to allow some alternative payment processing but the changes have been narrower than Epic sought.

The EU Counterpart

The European Union's Digital Markets Act, in force from 2024, implements much of the Khan framework legislatively rather than through case-by-case litigation. Designated "gatekeepers" — Amazon, Apple, Meta, Google, Microsoft, ByteDance — face ex ante interoperability requirements, restrictions on self-preferencing, and limits on data combination across services.

The DMA's effects are already visible. Apple has had to allow third-party app stores on iOS in the EU. Google has had to provide search-engine choice screens. Meta has had to offer ad-free subscriptions. Whether the DMA produces durable competitive entry or merely procedural changes that incumbents can absorb is the empirical question for the next several years.

What Comes After the Cases

Whether the Khan framework survives at the FTC and DOJ depends on administration changes and on whether the courts sustain the theories of harm. Legislative reform — the American Innovation and Choice Online Act, the Open App Markets Act — has not moved through Congress. The framework therefore depends heavily on judicial willingness to accept theories of harm that the Bork-era doctrine did not naturally accommodate.

The 2030s will produce the test of whether the platform-antitrust push is a generational reshaping of US competition policy or a short-term shift that recedes when the political conditions change. The current enforcement leadership has put substantial precedents in motion; the courts will determine whether they hold.

Reading List

• Lina Khan, "Amazon's Antitrust Paradox" (Yale Law Journal, 2017)
• Jonathan Tepper and Denise Hearn, The Myth of Capitalism (2018)
• Tim Wu, The Curse of Bigness (2018)
• Matt Stoller, Goliath (2019)
• Cory Doctorow, Chokepoint Capitalism (2022, with Rebecca Giblin)

The Long Arc

Antitrust law was originally a populist response to Gilded Age trust concentration. It oscillated through twentieth-century cycles of aggressive enforcement (the trust-busting era, the post-war era), moderate enforcement (the 1950s and 1960s), and near-dormancy (the Bork era from 1980 to about 2020). Each phase has been driven less by changes in the underlying economics than by changes in what the political system would tolerate. The 2020s appear to be the beginning of another aggressive phase, and the test will be whether it has the institutional staying power that the post-war era did.

The cases now in litigation will shape the practical reach of antitrust for the next generation. Win or lose, the cases set precedents that subsequent administrations will operate within. The institutional precedents established now will outlast any single administration's preferences, which is one of the reasons the current enforcement leadership has invested heavily in the biggest possible cases rather than smaller incremental wins.