Four experts reflect on some of the trends that defined United States antitrust and competition in 2025.
When It Comes to Section 2, It’s the Conduct, Not the Category
Erika Douglas, Temple University
Section 2 of the Sherman Act was back in a big way in 2025, and this will continue into 2026. Courts delivered a clear message in major government and private cases: monopolization liability depends on anticompetitive effects, not technical categories of misconduct.
The law has long been that the exercise of monopoly power is not unlawful unless accompanied by an element of anticompetitive conduct. For certain types of conduct, like predatory pricing and refusals to deal with rival, courts have developed specific judicial tests to identify unlawful acts. These tests have tended to narrow Section 2 liability in recent decades.
In 2025, defendants tried time and again to limit liability by capitalizing on these specific judicial tests. In cases like Duke Energy Carolinas, LLC v. NTE Carolinas II, LLC, now on appeal to the Supreme Court, the defendants argue that since their conduct fails to meet the specific elements of a predatory pricing claim, it must be “free from antitrust scrutiny.” In both U.S. v. Google (ad tech) and U.S. v. Apple, the defendants’ primary argument is that their alleged misconduct constitutes a lawful refusal to deal with rivals—even though they imposed restrictions on customers and suppliers, not rivals.
Courts have resisted these efforts at categorical liability across the board. In all three cases, courts rejected the premise that categorical conduct tests were determinative of liability. Each confirmed that the law does not require misconduct to fit within any such established categories to violate Section 2. The Fourth Circuit explained this substance over form approach in Duke Energy:
Section 2 focuses on anticompetitive conduct, not on court-made subcategories of that conduct. To be sure, when anticompetitive conduct is alleged to be typical predatory pricing, refusing to deal, price fixing, or dividing markets, as but examples, the case law has developed tests for analyzing such claims. . . . But anticompetitive conduct comes in many different forms that cannot always be categorized. . . . Thus, when a court is faced with allegations . . .the individual components of which do not fit neatly within pre-established categories, its application of such specific conduct tests would prove too rigid.
In December 2025, the Department of Justice agreed in its amicus brief filed with the Supreme Court in Duke Energy that although the exclusionary conduct at issue did not “fit one of this court’s conduct-specific tests,” it nevertheless produced anticompetitive effects that the courts below analyzed correctly.
U.S. v. Microsoft reminds us why this must be the correct approach. Section 2 needs to remain open to judicial development because “. . . the means of illicit exclusion, like the means of legitimate competition, are myriad.” Monopolists are unendingly creative in their approaches to limiting competition. Section 2 doctrine must remain correspondingly flexible in its recognition of novel anticompetitive acts to respond and adapt to these changing anticompetitive practices. The alternative—limiting Section 2 liability to conduct within established categories—would produce a stilted and formulaic version of monopolization law that loses its power to adapt with the economy.
These decisions are not discarding the categorical liability tests where the conduct fits within them. These specific tests are useful and exist to help courts to recognize common forms of misconduct with anticompetitive effects. But allowing these categories to supersede the underlying inquiry into whether the conduct creates such harm to competition would defeat their very purpose. While new categories of conduct may be more difficult for a plaintiff to prove, there is no categorical limit on what constitutes such acts.
This function over form approach is important to bipartisan efforts to breathe new life into Section 2 liability. Significant cases like U.S. v. Apple depend on harm theories that are not a close fit to the established categories of monopolization. Instead, the government’s complaint is organized by product and service, such as super apps, cloud streaming apps and digital wallets. It claims that for each, Apple degraded or denied interoperability and functionality for third party rivals to keep customers within the Apple ecosystem. This and several other Big Tech cases have survived motions to dismiss, as well as changing administrations, which seem to share an enthusiasm for the revival of Section 2 liability. Several of these cases are ongoing or pending appeal, but so far the message is clear: it is the wine, not the label that matters to Section 2 liability.
The Year We Learned That Antitrust Is Not the Solution to Big Tech’s Most Serious Problem.
Barak Richman, George Washington University, and Doug Melamed, Stanford University
Antitrust law did not curb the harmful power of big tech in 2025, but that had little to do with events in the courtroom.
The year’s events echoed a 2021 report of a Stanford University Working Group that was chaired by Francis Fukuyama and included us as members. The report warned of the need to curtail the power of dominant tech platforms, not because of their economic power, but because of the threat to democracy posed by the platforms’ control over information dissemination. That the problem became even more serious in 2025 was made clear at President Donald Trump’s inauguration, where he was flanked by Mark Zuckerberg, Jeff Bezos, Elon Musk, Tim Cook, and Sundar Pichai, each of whose companies made sizable donations to the inauguration and who later made pilgrimages to the Oval Office.
Although antitrust enforcement has long been understood to promote democracy by restricting the aggregation and use of economic power, the antitrust laws do not deal with democracy directly. They are limited to prohibiting conduct that causes economic harm by undermining the competitive process. They do not limit corporate size or the exploitation of that size for private gain, so long as the firm’s conduct does not harm competition, and they do not prevent network effects and scale benefits in information platforms. The recently decided and pending antitrust cases against the tech platforms, regardless of how they might have been or might be decided, cannot ameliorate the information dissemination problem in any significant way.
The core problem is that tech platforms, regardless of their economic power in carefully defined markets, control widely used means of communication and information dissemination. Their algorithms and curation policies have an outsized influence on the public’s perceptions and political attitudes. Especially if that influence is manipulated by government threats or promises of private gain, the platforms’ power over information dissemination could undermine democracy by systematically favoring allies of the government and hindering their opponents. Fukuyama called this a “modern oligarchy,” and similar oligarchies have been exploited by Italy’s Silvio Berlusconi, Russia’s oligarchs, and in other countries that have lost their democratic vitality.
In the past year, the threat to democracy has become more serious. While much attention has been paid to recent rulings in antitrust cases against Google and Meta, the year’s more important developments—and the ones that demand more attention—began with Trump’s second inauguration. Since then, Zuckerberg has “pivoted” Meta’s policies to favor the Trump Administration. Musk illustrated the dangers of combining ownership of a communication platform with multiple other interests in government regulatory and procurement policy. Oracle CEO Larry Ellison’s interest in and subsequent purchase of CBS forced editorial decisions at the outlet favoring the Trump Administration, and he Ellison received the president’s assistance in purchasing TikTok. Most recently, Trump suggested that the administration might try to block Netflix’s acquisition of Warner Brothers, reportedly because he would prefer Paramount to buy and change the editorial content of CNN.
The threat to democratic institutions is growing. There is evidence of a global retreat from content moderation, with one consequence that foreign interests now routinely use platforms to recirculate support for the Trump administration. We are now confronted with the risk, not just of big platforms controlling the dissemination of information, but of their being induced to do so in a parallel and maybe even coordinated manner.
With Fukuyama, our working group proposed a technology-based solution: requiring the dominant platforms to allow users to select and install “middleware” that would transfer editorial control from a small number of technology platforms to a diversity of competitive firms and would enable users to tailor their online experiences to their needs and wishes. We believed that such requirements might be part of an antitrust remedy, but recent thinking now suggests that enabling the use of such middleware will require legislative or regulatory interventions.
We remain hopeful that modern oligarchy does not become an entrenched reality in the United States, but the lesson of 2025 is that antitrust law will not be able to stop it.
Politics, All the Way Down
Jennifer E. Sturiale, Widener University Delaware Law School
A recurring story over the past year has been the politicization—indeed, the weaponization—of the antitrust laws. Such attacks have come from all types: progressives, conservatives, politicians, and practicing lawyers alike. Perhaps most notably, a group of Democratic senators wrote to Attorney General Pam Bondi to express their concern over the Department of Justice’s settlement of its challenge to the $14 billion acquisition of Juniper Networks, Inc. by Hewlett Packard Enterprise (HPE) under pressure by lobbyists loyal to President Donald Trump. In their letter, the Democratic senators admonished that the enforcement of pending antitrust matters “should not be subject to political interference or weaponized as a means to reward the President’s political allies and punish his enemies.”
That such an admonition would come from a group of Democratic senators was perhaps not surprising. But it was shocking when months earlier we learned that the call was coming from inside the house. Roger Alford, a former Trump deputy assistant attorney general who was dismissed for insubordination, first brought the matter to the public’s attention in a scathing attack of the lobbyists doing HPE’s bidding.
The HPE/Juniper matter may be the most sensational example of the weaponization of antitrust. But it certainly is not the only example. Earlier this year, Diana Moss criticized the Omnicom-IPG, Nippon-U.S. Steel, and Paramount-Skydance deals for being tainted by political interference, as well as the government’s lawsuit against Live-Nation Ticketmaster. Since then, the plot has thickened. In December 2025, Netflix announced its intentions to acquire Warner Brothers Discovery’s studio. But the newly formed Paramount-Skydance made a hostile takeover bid to acquire all of Warner Bros., and Trump’s son-in-law, Jared Kushner, is an investor in Parmount’s bid. Trump assured us, “I’ll be involved in that decision.”
There was also Federal Trade Commission Chairman Andrew Ferguson’s letter in August to Alphabet regarding “potential FTC Act violations” for supposed “partisan methods” Gmail employed to flag emails as spams.
And my personal favorite was the suggestion, floated in 2024 by Ferguson and FTC Commissioner Melissa Holyoak, that the FTC investigate whether technology platforms had been unlawfully colluding over their content moderation policies and suppressing conservative speech. The enforcement of Section 1 of the Sherman Act in this manner is certainly novel (some might say unprecedented). And, but for the flaws in the theory, it might even be commendable. But it was hard to take Holyoak’s suggestion as anything but political when, in January 2025, she again raised this idea during a speech only moments after criticizing former FTC Chair Lina Khan for her “unprecedented” actions and lamenting that she “hope[d] to see a return to normalcy.”
With so many attention-grabbing headlines, one may forget that this is not the first time we have encountered claims of the politicization of antitrust. Back in 2013, DOJ settled a suit challenging a merger between American Airlines and US Airways, clearing the way for the two airlines to merge and form the world’s largest airline. A New York Times article queried whether the DOJ had “cave[d],” noting the extensive lobbying campaign the airlines undertook; the headline described the settlement as “baffling.” And, of course, the origin story of the Tunney Act is one of backroom deals, embarrassing Nixon tapes, and the primary target, the International Telephone & Telegraph Corp. (ITT), making a substantial donation ($400,000 in 1972) to the Republican National Convention, resulting in Nixon’s DOJ settling the case.
But the weaponization of antitrust over the past year has been different. Rather than it being a string of isolated incidents, it has been employed as a strategy to assert and strengthen the power of the president. It is a strategy that has challenged the status of not only the FTC, but of all independent agencies, resulting in the firing—in violation of Humphrey’s Executor—of FTC Commissioners Alvaro Bedoya and Rebecca Slaughter, yes, but also of members of the National Labor Relations Board, the Merit Systems Protection Board, and the Consumer Product Safety Commission. It is a strategy that has deployed the DOJ to retaliate against Trump’s political adversaries, such as former FBI Director James Comey, New York Attorney General Letitia James, and former National Security Advisor John Bolton. It is a strategy that, in violation of longstanding norms, is premised on presidential control over all elements of the executive branch. In short, it is a strategy to deliberately and unabashedly make it politics all the way down.
Authors’ Disclosures: The authors report no conflicts of interest. You can read our disclosure policy here.
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
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