WASHINGTON — When John Oliver skewered lax enforcement of antitrust laws in a segment last year on “Last Week Tonight,” he had a fan in the Trump administration: Makan Delrahim, the chief of the Justice Department’s antitrust division.
“He did a great piece, about 17 minutes on antitrust law, and he goes through all this, and it makes for great entertainment. Some of this stuff is probably true,” Delrahim said, with some levity, of the segment, which ran in September.
Delrahim was speaking to students at an event on Tuesday at George Washington University Law School, his alma mater.
In the segment, Oliver pointed to industries like airlines, cable TV and eyewear that have consolidated to the point where a handful of players control the market, or consumers are faced with just one option. He also took aim at AT&T, and noted its plans to buy HBO’s parent, Time Warner.
That merger, of course, is top on Delrahim’s agenda: The Justice Department is suing to block the merger, with a trial set to begin on March 19.
Delrahim told the students that the AT&T-Time Warner transaction “will affect the way that all of us view content,” but he declined to comment on the case itself.
“I am very respectful of the judge and the judicial process,” he said. “I have all faith in the system, and we will see what happens over the next few weeks.”
As there has been more questioning of whether existing antirust law is adequate to address the current marketplace, particularly with the dominance of tech giants, Delrahim said that he thinks that the laws “are fine” and the consumer welfare standard for assessing transactions has worked “quite well.”
“One of the great things about the antitrust laws is that they have been resilient,” he said. “We have had a good 35 years where law and economics have merged together to produce good results in antitrust enforcement, in merger policy. Sadly, antitrust recently in the last two years has become a political tool for certain folks who would like to complain about one side or the other, that you haven’t been aggressive enough on antitrust.” He said that the argument then is that mergers and market concentration are blamed for “broader areas of social policy, the haves and have nots. ‘Look at what has happened. Your life isn’t as great because these guys have allowed greater consolidation.'”
“Is there greater consolidation? Yes. But are there greater consumer benefits that have resulted from such consolidation? Probably,” he said, adding that the Antitrust Division is bound by laws and doesn’t “have the power to all of the sudden say, ‘We don’t like this merger. We’re not going to let it happen.’ No, we have to go to court, we bear the burden of proof and we have to prove it to an independent judge that this violates the law, and the law is based on the precedents in economic understanding.”
But he said that the decision to challenge the AT&T-Time Warner merger and another lawsuit against a Michigan hospital showed that they are willing to challenge transactions if they believe that it “crosses the line.”
“I don’t think anyone can accuse us of being shy about enforcing the law,” he said.
Delrahim served in the White House as legal counsel before he was confirmed as antitrust chief in September.
At his GWU talk, Delrahim also talked about his experience working as chief counsel to the Senate Judiciary Committee in the late 1990s. He pushed back against the notion that conservatives aren’t willing to enforce antitrust law, and pointed to its chairman, Sen. Orrin Hatch (R-Utah), who took on Microsoft for anticompetitive behavior in the browser market. Sharing that view were other prominent conservatives including Robert Bork and Douglas Ginsburg. Ginsburg was on the panel that wrote the Microsoft opinion.
“These guys are not flimsy lefties, but they stood for proper antitrust enforcement,” Delrahim said.
The case was filed by the Clinton-era Justice Department and settled in 2001. Delrahim said that without the challenge to Microsoft’s market dominance, “you wouldn’t have seen a lot of the technological innovation today. Do you think the operating system on your phone and the app store would exist had the Microsoft case not been brought by the Justice Department?..I don’t think so.”