A moralist, economist, and lawyer walk into a bar. The economist claims they should lead antitrust inquiries. After all, antitrust is about markets and who knows more about markets than economists? The lawyer scoffs. Economists may know about supply and demand, but they don’t know the first thing about how to design regulations to achieve the ideal market. The moralist downs his drink and says, look, friends, my buddies Theodore Roosevelt and Woodrow Wilson made it quite clear that me and my colleagues should take the lead. 

There’s no punchline. There’s just the historical record that confirms that the leading designers of our antitrust frameworks very much intended for moral conceptions of good and evil corporate behavior to inform antitrust regulation. 

The recent decision by Judge Amit Mehta in United States et al. v. Google–the first major antitrust decision against Big Tech in two decades–hues closer to this original understanding of antitrust law than more recent conceptions. A search of the opinion returns no mention of “consumer welfare.” 

Judge Mehta leaned heavily into language characteristic of the emerging and, increasingly, common understanding of antitrust law–one grounded in notions of fair play in a dynamic, competitive marketplace. For example, he spent significant time assessing the extent to which Google exploited “choice friction,” or the tendency of users to stick with default settings, to benefit its bottom line and keep users within its ecosystem. The opinion notes that Google was well aware of the fact that many users didn’t know about a default search engine nor their ability to opt-out. Nevertheless, Google relied and benefited from the lack of active choice among users. Judge Mehta also took care to thoroughly outline that some of the company’s questionable privacy practices were in direct opposition to user preferences and often disconnected from any clear business rationale. Concern for user well-being rather than just their wallets was also clear in Judge Mehta calling out Google for having the ability to change its products and policies without fear of users leaving for a different site. This new understanding of relevant factors in antitrust law, however, harkens back to century-old ideas.

President Wilson, who signed the FTC Act into law, offered the most detailed account for the role of moralists in shaping competition and consumer protection policies. Before diving into his desired role for moralists, this essay does not explore Wilson’s own morals, which have undergone extensive debate. Those discussions can and should occur elsewhere. 

Wilson’s antitrust concerns were never confined to economic factors but instead included concern for individual freedom and economic liberty. Wilson spoke in terms of righteous and unrighteous corporate behavior. The latter could not be tolerated. As Governor of New Jersey, he asked a crowd whether they wanted “big business to beneficently take care of you, or do you want to take care of yourselves? Are you wards or are you men? . . . Are you old enough to take care of yourselves?” I’m not sure if he used a mic in that speech but I sure hope he dropped it after that challenge to the American people.

The upshot is that Wilson’s unit of analysis was not price nor any measure of efficiency but rather the individual. That said, he did not anticipate nor desire that an expanded emphasis on morals would undermine rational, predictable economic policies. In fact, he called out then-President William Howard Taft for advancing policies that left “everyone guessing.” Wilson rightfully noted that “you cannot conduct sound business upon a test of guessing.” Though some may feel as though a moral standard and a predictable one are like silk and sandpaper, Wilson and others at the time believed in a shared, recognizable, and enforceable set of moral principles.

As evidence of that common belief, Wilson wasn’t alone in tying morals into antitrust policies and frameworks. Senator Francis Newlands, who played an active role in shaping the FTC, likewise envisioned a moral approach to identifying the “unfair competition” addressed in Section 5 of the Act. President Theodore Roosevelt, heralded as the original trustbuster, likewise analyzed antitrust policies in moral terms. He regarded the Sherman Act as “profoundly immoral” because, as interpreted at the time, it “forbid honest men from doing what must be done under modern business conditions.”

Is there a barstool for the moralist at today’s antitrust happy hour? Some may quickly respond, “No.” There’s no shortage of blogs to cite and polls to point to that suggest too many fundamental differences among Americans to allow for any stable application of moral principles. Well, there’s a litany of support that Americans do share some common ground when it comes to identifying bad corporate actors. It’s true that these widely held concerns are not yet clear principles but an increased appreciation for the historical role of morals in antitrust conversations may help distill those guiding standards. 

Take data privacy, for example. According to a 2023 Pew poll, seven in ten American adults say they have “little to no trust in companies to make responsible decisions about how they use AI in their products.” That same poll uncovered that nearly eight in ten Americans “trust themselves to make the right decisions about their personal information.” Those data points suggest that the extent to which companies deny individuals meaningful control over their data is a broadly held concern. Popular concerns about certain business practices don’t end there. As of 2022, six in ten Americans cite corporate greed as a major cause of inflation. A few companies seem to have drawn a disproportionate amount of the public’s skepticism. From 2018 to 2021, American confidence in Amazon, Google, and Microsoft dropped by at least 13 percent. The tremendous growth experienced by each of those companies didn’t distract Americans from the untrustworthy practices relied on to boost their respective bottom lines.

“Trust.” “Responsibility.” “Greed.” These are not concepts that can be easily transformed into economic formulas. Yet, they underpin public perception of what makes or breaks a just economy. The ongoing use of these terms by lawmakers and citizens alike to evaluate our markets shows that Americans have long insisted that corporate growth not come at the cost of shared morals. 

Those still convinced that there are clear enough moral principles to inform some of the most important policy questions of our day are more than justified in remaining skeptical. Rather than try to develop other proxies–be it price, surplus, etc.–for those principles, however, those skeptics should grab a seat at the bar and join an overdue conversation about what a just economy would look like in 2024 America.

The conversation over the morals that should shape our regulation of corporations and the economy on the whole, however, must be a broad one. It is not clear the FTC has woken up to that reality. For instance, in a recent interim reporton pharmacy benefit managers, the FTC seemed quite fine with deferring to public comments as a proxy for public sentiments. In theory, public comments may provide insight into how the average Joe or Jane regards a certain business practice. In reality, those who have the time and interest in submitting such comments are once hardly representative of people on Main Street and hardly acceptable substitutes for expert, neutral analysis of such questions. 

The FTC should adopt a default practice of assuming that it would benefit from sustained public and expert consultation with respect to identifying emerging notions of what distinguishes a good business practice from a bad one. This humble regulatory posture will leave space for good corporate citizens, astute jurists, and the public to participate in an open process of identifying the outer bounds of acceptable behavior. This posture will also ensure robust and thorough use of the FTC’s Rule 6(b) powers. Such an approach would align with that taken by the original trustbusters. As Louis Brandeis pointed out: 

The public interest is made up of a number of things. The consumer should get a good article at the lowest price that he reasonably can, consistently with good quality and good business. But there is another interest that the public has, the interest of the rest of the public, the dealer and his clerks and the producer and his employees. We are all part of the public and we must find a rule of law that permits a business practice which is consistent with the welfare of all the people.

No economic formula can pinpoint the public interest, as described by Brandeis. Nor can any set of lawyers locate the answer solely in statutes. Finding an accurate conception of the public interest–to use Brandeis’s words–is necessarily a process that must include economists, lawyers, and moralists. 

At last check, few are listed as “moralists” on LinkedIn. The modern moralist may not be an individual so much as it is a process — this process involves the slow, steady identification of moral and immoral practices via transparent, regular, and rigorous hearings and investigations by the FTC and others.

Antitrust policy is no joke, but it is also not an abstract practice of merely calculating or defining a “good” economy–that difficult task is one that must involve the political community given the necessary trade-offs and tremendous stakes. 

Kevin Frazier is an Assistant Professor at St. Thomas University College of Law.