The neo-Brandeisian movement swept through antitrust like wildfire,
hurtling its adherents into prominent Biden Administration posts. But it
threatens to be a flash in the pan, for the looming election makes all those
new policy priorities uncertain: Whoever wins, it will not be Joe Biden, and
the neo-Brandeisians’ fate is up in the air. In short, the movement could use
some fresh ideas. One place to look might be the last big antitrust revolution,
when the Chicago school executed a clean law-and-economics sweep of the
field in the 1970s and 1980s.
The Chicagoans understood the importance of antitrust standing—and
today’s antitrust reformers should too. This obscure procedural backwater
determines who benefits from the antitrust laws, how much antitrust
enforcement we get, and who controls antitrust litigation. And the Chicago
experience goes to show that it is neither immutable nor apolitical. To the
contrary: Small, manageable changes in antitrust standing law had huge
implications for the law of competition. Reversing course from the Chicago
status quo (and even pushing further) could give neo-Brandeisian antitrust a
similar boost.
Policy bona fides aside, antitrust standing is politically and doctrinally
poised for its time in the spotlight. A broader view of antitrust standing enjoys
bipartisan support, even from populist figures on the right, and would thrive
in today’s text-centric legal environment. Best of all, any changes would
endure across administrations—no need to stress about the election. Antitrust
standing is the path forward.
