The following is a transcript of Principal Deputy Assistant Attorney General Roger Alford and former Principle Deputy Assistant Attorney Doha Mekki in conversation with Bloomberg reporter Josh Sisco.
Guy Rolnick
Please allow me to briefly introduce our speakers.
Roger Alford is the Principal Deputy Assistant Attorney General for antitrust at the US Department of Justice. He previously served in the first Trump administration as Deputy Assistant Attorney General for antitrust. Prior to returning to the DOJ, he was a member of the Notre Dame law faculty for nearly thirteen years. During that time he also consulted on antitrust matters, including as an expert witness in the landmark 2023 litigation against the National Association of Realtors, and consulting for Texas AG Ken Paxton in Texas v. Google. He previously clerked for several judges, and practiced law in DC.
Doha Mekki is a senior fellow at the Berkeley Center for Consumer Law and Economic Justice. Previously she served in multiple senior roles at the DOJ over ten years, including as the Principal Deputy Assistant Attorney General and Acting Assistant Attorney General for the Antitrust Division. Before the DOJ she was an associate in the antitrust and financial services groups of an international law firm in New York.
Our moderator today is Josh Sisco, who is an antitrust reporter at Bloomberg. He follows civil and criminal antitrust litigation and government investigation with a focus on live court coverage and analysis, reporting on competition policy as it relates to Silicon Valley and the broader tech industry.
Thank you all for being here and making the time. Now I turn it over to our speakers.
Josh Sisco
Hi, thanks so much for having us.
I wanted to just start off with, we’re about two… It’s not even the first 100 days. We’re still in the first 100 days, and you guys have been in the building for about five or six weeks. I wanted to turn it over to Roger just for a couple minutes to give the lay of the land, how you guys are thinking about your approach to enforcement and policy, and then we’ll take it from there.
Roger Alford
Thank you Josh, and thank you Doha, for the opportunity to be here, and Guy Rolnick for inviting me to be here. I should say that Guy invited me to give a speech here when Gail regretfully declined to be able to attend, and I said, “I’m not giving a speech before Gail gives a speech. She’s going to be the first person to give a speech before I am.” So you were very accommodating and had this fireside approach.
Gail Slater is the AAG for antitrust and I think is a very hopeful sign about the future of where we’re headed with antitrust. I know all of you are trying to read the tea leaves about the direction that we’re headed, and there’s only a few data points that you can really rely on. I would encourage you to look at her Senate Judiciary testimony, her QFRs in response to questions from the Senate, her fireside chats. I think she did three fireside chats last week. Also some of the initial impressions from the early cases on mergers, and on conduct cases, and statements of interest, and oral arguments that have been done in those statements of interest. And then of course, coming up very soon, the hearing in Google Search remedies. I think those are all very useful indicators of the direction that she’s going. The term that’s the, sort of, slogan that you hear a lot from her is “vigorous and fair antitrust enforcement with clear rules.” That’s really what I think her goal is.
The other thing I would emphasize is her very strong desire to make sure that antitrust is serving the needs of the average American worker. As I said in my Senate Judiciary testimony on December 17, and also I testified in November in the Senate Judiciary Committee on the credit card proposal by Senator Durbin, there is essentially a realignment that’s happening in the Republican party, in which there’s a very significant push toward economic populism and the desire to be populist in the way that we do antitrust enforcement. That’s reflected in the choice of Gail Slater, and also that’s selected in the choice by President Trump of JD Vance. So, I think that that’s what you should expect. There’s a desire to make sure antitrust works for the average American person.
One of the things that that really means very significantly is, look at the things that matter most to the average American. Are those markets competitive? Housing, health care, transportation, entertainment, food, groceries, entertainment. There’s so many different areas that you think of; what does the average American spend their money on? We need to make sure that those markets are competitive. It’s very clear that many of them are not.
Fortunately, a lot of those exact core pocketbook issues have been addressed in recent years. We really are in an incredibly amazing time in antitrust enforcement. When I was starting in 2017, we were like, “Gosh, look at all the things that the Europeans are doing. Maybe we should do some of that.” I would travel the world and the question was, where are the Americans? Why aren’t the Americans more involved in this kind of stuff?
It is really quite remarkable how much was accomplished in the first Trump administration, to show clear signals of desires for more aggressive antitrust enforcement. Labor markets and no poach, for example. A vertical merger case that was the first in the door when, the first day Makan Delrahim started at the Trump administration. You could say we lost the battle but won the war on vertical mergers because of the fact that it was acceptable to challenge vertical mergers either for foreclosure reasons or for raising rivals’ costs. We’ve seen a renaissance of challenges to vertical mergers. And then of course most importantly of all, the desire to really take seriously the monopoly conduct of companies, both at the FTC with Facebook and with the Google case in 2020.
Those are signals of a genuine bipartisan interest. It is in everyone’s interest in all parties that we reflect a shared commitment to address conduct abuses, cartel behavior, and monopoly abuse. I think that’s where we’re headed in the future.
I also had some influence on where Gail Slater’s first speech would be. I said, “You can’t speak at the University of Chicago when just an hour and a half away is the great University of Notre Dame!” So her first speech is going to be at Notre Dame on April 28. The title of the speech is “the conservative case for vigorous antitrust enforcement.”
Josh Sisco
All right, thanks Roger. To go from there, you were in the first Trump administration with Doha, and then, Doha, you continued that into Biden, and so there’s been this kind of through line. There’s been a lot discussed about the new consensus about populism and competition policy. I’m wondering if you guys could speak briefly about how things have shaken out. What continuity there is between the administrations. How things are different, particularly between the first Trump administration and now, even though there’s limited data points so far here.
How has it changed? How is it the same?
Roger Alford
You go ahead. You’ve seen all three.
Doha Mekki
All right.
I had the great privilege of serving as counsel to Makan Delrahim when I was a career public servant at the DOJ. I saw firsthand the AT&T/Time Warner merger challenge. I saw the filing of the Visa/Plaid merger challenge. The inquiry into the market power of dominant internet platforms, which was really a project of then Attorney General Bill Barr and his deputy, Jeff Rosen. Of course, the filing of the Google Search case, as well as the indictment of the first labor market conspiracy cases that we could find in the history of the Antitrust Division. It was really a privilege to have all of those things in my portfolio when I was working there at the time.
I think that this break from Republican orthodoxy really shouldn’t be missed. There are a lot of ways in which you might look at other enforcement metrics and take issue of how pro-enforcement it was, but I can’t say enough, especially now that I am not in government and don’t have the same constraints as my friend Roger. It’s really hard to do things differently. These public roles are very high pressure. And doing the things that matter, when it’s hard, that’s exactly what we want public officials to do. I think there were real elements of that in the first Trump administration.
When I came back as principal deputy under Jonathan Kanter—and then ultimately helping to quarterback the Google Search trial, the JetBlue/Spirit filing and trial, and other examples of enforcement, the Visa case, the Live Nation monopolization case, and others—we felt like we had a platform to run and to take on the biggest, most intractable problems. Because fundamentally, the role of the Justice Department is to take on the biggest, most intractable fights. When you’re talking about trillion dollar companies, the average person can’t vindicate their economic liberty. They can’t take on those fights, and so that is the proper role for the DOJ.
I should also say that, because Makan was willing to embrace a policy that came down at the end of the Obama administration about concern for labor, trying to proffer explanations for why there was a two-tiered recovery from the financial crisis, why there is reduced labor dynamism, why there was reduced business dynamism, why markups had increased, why more industries were concentrated over the last 40 to 50 years… A lot of those recommendations, particularly around no-poach agreements, were ultimately embraced by the first Trump administration, at least in the Antitrust Division, and so we were able to come in and indict more labor market conspiracies. We were able to focus on worker misclassification. We were able to focus on amicus briefs that really set the law in the right direction.
The nub of consensus, such as it is, is twofold. First, it’s reverence for law. This is a fundamentally conservative principle. It’s often conservatives, traditionally, who’ve told us concern for rule of law, textual approaches to law, is very important. That was something that we tried to champion when we were in office.
The second thing is that we focused on market realities. What is breaking with orthodoxy, really, when the rubber meets the road? It’s accepting markets as they are. It’s shedding the ridiculousness that, like, vertical math can tell you something about whether horizontal mergers or platform mergers actually are harmful to competition. Making sure that we’re learning the most that we can about these big, difficult problems—healthcare, agriculture, labor, tech, and more—was really very important.
I will acknowledge my hubris. I think that the Trump 47 folks have a real baton that they’re taking. Ultimately it’ll be their choice how they make use of it, but they’re not starting from green field here.
So, if the president is taken at his word—that he’s concerned about Big Tech monopolies and other kinds of monopolies that are really immiserating the American people—it’s really the DOJ Antitrust Division that has a big platform to run.
Roger Alford
Yeah, I would say that the first Trump administration handed the Biden administration a very light and easy baton to seize, and then now we have a very heavy and full baton that we are seizing.
There’s so many cases right now. It’s really quite remarkable. What a great time to come in. Two weeks in, a month in, you get to do Google remedies. That’s an amazing opportunity. One can assume in the coming years, not just at the trial level but appellate and Supreme Court level on some of these cases (isn’t it strange, though, that we’ve been talking about Microsoft for 50 years? When are we going to stop talking about Microsoft and talk about the next Supreme Court… That’s a DC Circuit case, not even a Supreme Court case). So, it’s exciting to think about where we might be in two or three years, in terms of clarity on some of these laws.
I would agree and echo what you’re saying. Obama administration, October 2016, announced the no-poach initiative. Makan Delrahim’s efforts were really on no- poach, but really only no-poach. The Biden administration focused on other labor issues, that’s certainly notable, on merger reviews, Kroger/Albertsons, and Penguin, there are various examples of that. There’s now more merger cases that have labor issues.
The other interesting thing is monopsony power in labor markets. That’s another new, really interesting thing. That’s something that is percolating up and will be an area of genuine interest. Honestly, there’s a lot of new emerging issues that are incredibly interesting. We were talking about tacit collusion five years ago; now we have genuine, actual cases involving algorithmic collusion, with opportunities for real case law on algorithmic collusion. We have academic articles suggesting that the next big risk is autonomous algorithmic collusion; basically, robots acting like parties in a room, and how they would maximize profits. If you just tell a robot to maximize profits, they’ll autonomously lead to cartel-like pricing behavior. That’s a cause of great concern. There’s a lot of real interest in the monopoly cases, the amount, the number of cases.
The only downside of all of the cases that you guys gave us is it’s going to take a year just to get through all of those cases before we can even start thinking about a lot of really new other cases that we want to bring. There’s just so many cases that one would want to bring.
Am I right that this is the same problem you had? You would get a menu of options of things. These are all the problems that you’re seeing in all the different markets. Which ones should we prioritize? You’re literally making choices about incredibly hard… It’s just so many different cases you could bring. And then, what has the biggest impact on the greatest number of people? That’s sort of the dilemma that we’re in. There’s so much bad behavior out there in the market that needs to be addressed.
Doha Mekki
The PDAAG in me sees the PDAAG in you.
Roger Alford
Yeah, Josh was going to introduce us as, I’m Doha 2, and I said, well we have Terminator 1 and Terminator 2 so you could say that.
Doha Mekki
I can’t miss an opportunity to say, this is exactly why Congress should restore the Antitrust Division’s merger filing fees, which have funded the Antitrust Division for decades.
It is also an important opportunity for me to tell you what I spent many years telling Congress, which is that, for every dollar the Congress appropriates to the Antitrust Division, the US economy gets $11 back.
I’d like to point out, too…
Roger Alford
Oh, good stat. I need that one.
Doha Mekki
Yeah, that’s good.
The other thing you should know is that the Antitrust Division had DOGE before there was DOGE. There’s a Procurement Collusion Strike Force that, at this point, has indicted for felony violations of Title 18 and Title 15 (which is where the antitrust laws live) just on procurement contracts with the federal government. Everything from scams affecting the intelligence community, the defense community, agriculture, they really run the gamut. They have already been going after “waste, fraud, and abuse” and returning hundreds of millions of dollars back to the federal coffers.
I just think the value of the Antitrust Division is plain.
And now, in a position where the Republican party has total control of the federal government, there’s no time like the present to fund the Antitrust Division. You can’t police a multi-trillion dollar economy with $233 million of fees.
Josh Sisco
I wanted to go to the bipartisan sort of consensus on this issue. Mark Meador, the third Republican on the FTC, was just confirmed yesterday; party-line vote, I think it was like 50 to 46. Historically, antitrust was not—and competition policy was not—a political issue. It has become much more political over the last several administrations.
Do you think that that is going to make it more difficult to have this consensus across party lines on economic populism? Whether or not it’s a policy disagreement, or whether it just is a political disagreement that is going to get in the way.
Roger Alford
You mean because of what happened at the FTC?
Josh Sisco
Because of what happened at the FTC, and because of what is happening across the federal government. There’s just much more overarching concern about political interference. I’m wondering if that is going to make this sort of cooperation more difficult.
Roger Alford
We all know and we all are watching different actors that are in the crosshairs, trying to see what they can do, to find soft spots in the administration. Everyone is aware that that is happening. What I would recommend that you do is watch and see what happens in the coming two to three months, whether those efforts are getting any traction or not.
Josh Sisco
Efforts to lobby?
Roger Alford
Or to modify, or to weaken, or to settle, or whatever. Are all those cases getting any traction? Let’s see where we are in two or three months.
A fair-minded interpretation of what happened with the FTC is that this is a reflection of the administration’s views on independent agencies. The fact that it was not the first—it was like the third or fourth or whatever of the independent agencies—suggests to me that this is really a bigger constitutional… It truly, I think, is a bigger constitutional question. It’s not about competition.
Doha Mekki
Competition policy is a very small and often happy place for bipartisan interests to live. Obviously the Congress, the American people are thinking about all politics, and not thinking about competition in a vacuum.
What makes the decision to try to remove Rebecca Slaughter and Alvaro Bedoya from the FTC so problematic is that—even if you take the administration at its word that it was seeking to just launch, like, a facial assault on Humphrey’s Executor, the independence of agencies—attempting to remove the two Democratic commissioners is an odd choice. If someone was really focused on this, you might have removed a Republican and a Democrat. Or attempted to.
That’s setting aside whether it is a good idea to try to make a frontal challenge to independent agencies. Independence doesn’t actually mean independence. In the FTC’s case, it just means “for cause.” They’re still subject to oversight; they’re still receiving the policy priorities of the president and so forth. So I think all of this becomes very fraught.
Last week I was at a really wonderful gathering in Washington, put on by Y Combinator. It was really an interesting opportunity to hear from folks on the left and on the right. I would just note that in my fireside, Mike Davis—who’s very much a conservative legal movement firebrand—said it was his opinion that it was very stupid to attempt to remove them, and that if you were trying to conceive of all of the ways that you could really do nice things for monopolies, that seems like one.
Josh Sisco
It’s been reported over the last few weeks, there’s a major DOJ restructuring underway. The proposals affecting antitrust in particular are to close two of the field offices, fold in the economists into other department-wide offices, and a couple other things. That hasn’t been finalized, but how is that unfolding internally at the Antitrust Division? The San Francisco office, in particular, is where much of the tech cases have come out of; I think that office led the Apple investigation. Closing those offices and some of this other restructuring is at odds with the stated priorities of being aggressive against tech and other sectors.
How do you see that unfolding?
Roger Alford
The big picture idea of having government be more efficient and eliminate waste, fraud, and abuse is a laudable goal. It’s a goal that has been pursued by previous administrations. The other really successful example is the Peace Dividend Initiative by the Clinton administration, where they tried to really significantly reduce the size of the government. One can have a whole variety of different viewpoints about the manner in which that is being effectuated in the current administration, but the goal—of more efficiency and eliminating waste, fraud, and abuse—is a good one.
To your point, the Department of Justice is an absolutely critical agency for trying to effectuate the goals of the administration, including the goals with respect to antitrust. Everyone knows that. That the antitrust priorities are very, very significant. The way that Gail Slater was announced in her nomination so early and so strongly reflects a pretty good idea about where the administration’s position is on antitrust. We are aligned with the career staff, career attorneys, everyone at the Department of Justice in terms of the desire to make sure that there’s vigorous and effective antitrust enforcement.
It’s really a two-fold fight right now, Josh. One is trying to make sure we can be as effective as we can in keeping the budget. Doha mentioned the 233 million budget; that was your last year, right, it was 233 million? At a bare minimum, keeping that number and also trying to recapture the merger filing fee funds that are supposed to be earmarked for the Department of Justice. If we can win that battle, then all of the concerns about making sure we’re living within our means are reduced.
The other issue is reorganization questions. Reorganizations for the sake of reorganization means that we just have to make strong arguments about why this proposal is a bad idea, or that proposed idea is more plausible, and to suggest alternatives. Thankfully, the re-org memo from the ODAG very clearly said, “This is a proposal. We want input from all of the relevant units within the Department of Justice.” We have provided that in executive summary, in detailed summary, in meetings, in phone calls.
It’s extremely helpful to have Gail Slater in the position that she’s in because she has the trust of leadership within the Justice Department and within the White House. The fact that there is trust means that if she recommends this path instead of that path, I think it will go a long way. So, you know, to be determined, right? To be to be seen. But I do think that we’re making good progress in our responses to the re-org memo.
Josh Sisco
We only have a few minutes left. One thing I wanted to get into was non-tech enforcement. Everybody wants to talk about tech and the antitrust cases against the biggest tech companies. I think that’s what has amplified this issue so much over the last 6 years—the focus on Google and Amazon and Facebook and Apple, etc.
You were saying at the beginning, this focus on the average American. The average American worker. It’s certainly debatable that some of the tech issues, while important, don’t capture the average American’s attention as much as the price of food, or the price of healthcare, or the price of housing, or anything along those lines.
Given that there’s already lawsuits against most of the major tech companies (with a couple exceptions), do you think that the focus on the investigative side is going to move away from tech and towards some of those other, sort of, kitchen table issues?
Roger Alford
When you say move away, I don’t interpret your question to mean try to resolve the existing cases. So, like, if we had more attorney time, and more money, and as we’re entertaining new conduct cases, what kind of things would we focus on? I would encourage you to look at her fireside chat comments; she talks about consumer-facing concerns and public-facing issues and the desire to try to make sure that we’re helping the average American. I do think that’s front of mind in the focus that we will have. There’s a lot of incredibly difficult work in that space. Looking at the healthcare market, for example, you can imagine a half dozen different major problems.
She said this publicly, so I’ll give you a little anecdote. In the conference room where the DAAGs meet with Gail, on the big bulletin board, the quote that she has is, “Keep the main thing the main thing.” That’s an admonition to make sure that we remain laser focused on what the average American that supported this administration really, really cares about. Inflation and the cost of goods and services is a significant part of that. So, the answer to your question is yes, to the premise.
Josh Sisco
I’m going to switch gears really quickly. I am not a trade expert by any means but, given everything that’s been in the news in the last several weeks, how does that intersect with competition policy? It seems like it would tee up concerns of collusion, trade, increased prices from tariffs is like cover for collusion, and the way that inflation has been talked about by some. How are you guys thinking about that?
Roger Alford
Doha, do you want to… I can say what I can say and then you can say more.
I actually got the same question at The Capitol Forum last week. In the last administration, inflation gave companies cover to do things that were really harmful to the American society and the American workers and consumers. Tariff increases give people cover opportunities to consider engaging in really harmful conduct. Dynamic pricing behavior is a polite word for it. We can imagine that they will take action, especially if they see a market that used to have five competitors now has four competitors because the tariff rates are so high that it essentially forecloses the market.
I teach international trade in addition to antitrust, and I see what happens when anti-dumping duties are imposed at 100% levels. You see what happens to the market. They’re essentially closed out of the market completely. If 100% anti-dumping duty is imposed, it’s essentially closing them out of the market altogether. That also might impact merger review analysis, in terms of who the players are, if there’s merger in the context of a situation where an actor that was in the market is essentially foreclosed.
There absolutely are issues related to trade that are going to be relevant, both with respect to collusion and with respect to market analysis.
Doha Mekki
As Roger predicted, I can say more.
Antitrust and trade have always moved together. It’s really a three-legged stool. There’s antitrust, there’s trade, and there’s industrial policy.
Roger is exactly right that merger review probably should take into account not just the tariff regime, but the arguments that companies with market power often make to Commerce about the imposition of tariffs, and how they sometimes can weaponize a tariff regime to boost market power.
To zoom out, there’s a broader macro point. I’m still a little bit seasick after watching what happened to markets over the last week or so. The American economy has plenty of challenges, addressable challenges, no doubt. But, the US economy is the envy of the world. It is a wonderful, extraordinary thing. American ingenuity is a wonderful, extraordinary thing. The decision to go headlong into an uncertain and extreme tariff regime… I know there’s all sorts of retrofitted explanations about whether this was a master plan or not. It did not strike me as a master plan. There’s nothing wrong with a thoughtful approach; but to go all in on tariffs, and not consider expanding the US industrial capacity and a lot of the industries that were affected, struck me as bad policy.
There are geopolitical ramifications. Driving Europe into the arms of China strikes me as a terrible consequence of these kinds of policies. I have to go on faith that people who think about tariffs full-time, people who think about industrial policy… I’m an antitrust lawyer. I just know how to do one thing. I hope that people are thinking about all of these policy adjacencies together because something very catastrophic will come of not thinking about the three-legged stool.
Roger Alford
One data point that’s interesting is Whirlpool and the tariffs on washers in the first Trump administration.
Whirlpool merged with Maytag like 10 years before that and argued that there was vigorous competition because of LG. Then 10 years later, they’re asking for essentially safeguard remedy, safeguard tariffs on LG products. Then after the tariffs were imposed against LG, two things happened. Whirlpool raised their prices, not just on washers but also on dryers, and LG rushed their construction of their factory in the United States to try to restore competition.
All of those dynamics could play out in a bunch of different markets if these tariffs happen.
Josh Sisco
I think we’re out of time. Do you want to add any final comments?
Doha Mekki
I don’t know. Roger, do you have final comments?
Roger Alford
You start, I’ll finish.
Doha Mekki
Okay. Look, I think this is a really exciting time. The Trump 47 folks are not even at the end of their first 100 days, so there’s a lot of distance to cover in terms of where we’re going in competition policy.
I want to revisit a question that I didn’t get a chance to respond to earlier, which is about the impact of some of the office closures in the deputy attorney general’s memo. I saw the copy of that memo that wound up in the New York Times, and my first reaction was that, whatever AI product recommended to pregnant women that they smoke cigarettes or put glue on pizza… It just struck me that that’s the kind of recommendation that you get from bad AI.
The Antitrust Division is really an extraordinary institution. You can look back to other efforts to close offices, particularly during the Obama administration, and see how that just set back criminal enforcement—by some estimates—generations. When I think about the Antitrust Division staff, I think about an extraordinary law firm of antitrust lawyers who could make a lot more money in the private sector but choose to bring their talent and intellect and hard work to the public interest, and they do so for like, what, $150,000 a year in some of the most expensive cities in the country. On that score, I don’t know why anyone would even posit dismembering the Antitrust Division unless you’re trying to do a really big favor to monopolies of all kinds. The San Francisco office has people who have PhDs in… There’s a French labor historian who’s also an amazing lawyer. There’s people who have PhDs in economics who are on the front lines of the most difficult tech issues. When we left on January 20, Chicago was becoming a center of excellence for farming and food and agriculture. The policy shop was doing incredible work on merger guidelines and really just, like, syncing up our domestic and international policy.
I know that the recommendations in that memo could not possibly have come from folks as thoughtful as Gail and Roger and the rest of their front office. So it is my hope that every single recommendation about the Antitrust Division will be rejected. The staff deserves better, and the country deserves better.
Josh Sisco
All right, I think we’re getting the hook but I don’t want to cut off the federal government.
Roger Alford
Oh, I’ll just, a couple quick things.
I want to give a shout out to Eleanor Fox. When I was a law student at NYU law school she was my antitrust professor, so my first introduction to antitrust was Eleanor Fox. I never told her this but the reason I got an A in her class was because, not only did I take very careful, copious notes, I read all of her articles before the exam and I just tried to copy what she said in all of her articles. I think that’s why I got an A. But, in reading all of those articles, I sort of got the bug, and I went and did my LLM in competition law at Edinburgh University. So I just want to give a shout out to her because, you know, the grand dame of antitrust.
[applause]
But, yeah, we’re fully aware of everything Doha has said. And actually we’re benefiting from the mistakes the Obama administration made with the closings of those four offices and the retrospective on what happened with those offices. The good news is we’re aligned on the goal and the objective, and the need for all of these attorneys and these economists and these paralegals. We know that it’s necessary to achieve that; and, Gail Slater is not an AI chatbot, so you know the second and third iterations are going to reflect her input.
Josh Sisco
Thanks.
[applause]
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
