Current antitrust legislation will fail in the face of Big Tech, but their threat to free speech, privacy and democratic legitimacy continue every day

Head of the FTC Lina Khan, using Amazon as an example, argued in a 2017 Yale Law Journal article that the consumer welfare standard, which she described as particularly concerned with price and output effects, is “unequipped to capture the architecture of market power in the modern economy.” Then a third-year law student at Yale, Khan asserted that the potential harms posed by Amazon’s market dominance are underappreciated by the prevailing antitrust framework partly because concerns about the competitive harms of predatory pricing and vertical integration have waned in recent decades—but also because “the undue focus on consumer welfare is misguided” and ignores “a host of political economic ends” that Congress intended in passing antitrust legislation. In other words, according to Khan and other reformers, allowing companies to get too big can have negative societal consequences even when prices don’t go up. Massive economic power can be translated into massive political power, undermining democratic legitimacy. Pervasive control over digital communications can threaten free speech and privacy. A few banks with enormous influence in the financial system can lead to instability. But is antitrust the best tool for addressing all those concerns? The US has the FTC to help regulate privacy (along with its role in promoting competitive markets), the Federal Reserve to help keep the banking system steady, and campaign-finance laws enforced by the Federal Election Commission to safeguard democracy. If those institutions are inadequate to their tasks, is it the role of antitrust enforcement to backstop them?