
Jose Luis Magana/AP Photo
Assistant Attorney General Jonathan Kanter, of the Antitrust Division, speaks during a news conference at the Department of Justice headquarters in Washington, March 21, 2024.
Even President Biden has spoken candidly about some of the disappointments of the Department of Justice in his term. But one division of DOJ hardly disappointed: the Antitrust Division. Under the direction of Jonathan Kanter, DOJ Antitrust was one of the most active corners of the federal government in the past four years, winning the first major monopolization case in a quarter-century, blocking dozens of mergers, and restoring the posture of zealously defending competition in the U.S. economy.
I talked to Kanter last week in an exit interview about his approach to the job, the initiatives he undertook, and the work left to be done. A lightly edited transcript follows.
David Dayen: Thanks for doing this. Winning the Google monopolization case is probably what you’ll be best known for. Do you think that victory had impact beyond the particular case, as a lesson that monopolization won’t be tolerated?
Jonathan Kanter: For better or for worse, the case became a symbol of the applicability of antitrust law to protect modern economies. In many ways it was a test of whether antitrust enforcement works in the modern era. We succeeded and demonstrated that antitrust laws do apply and can work against modern tech companies. It showed that we can bring the requisite talent and skill to win.
I think one of the things we’ll be known for is the Google case. More broadly we’ll be known for revitalizing Section 2 [of the Sherman Act], revitalizing monopolization law. It’s Google, it’s Apple, it’s Visa, it’s RealPage, it’s Ticketmaster, it’s Agri Stats, it’s the case against UnitedHealthcare. It’s about getting the Department of Justice back to not just taking on the biggest problems but the biggest companies.
You were dedicated to prioritizing cases with the biggest real-world impact. Separately, you’ve repeatedly talked about your concerns on health care and the platformization of health care. I think we’ve seen real-world events speaking to the pain people feel dealing with corporate health care. You did try one case against UnitedHealth and lost. Do we need to devote more resources to health care specifically?
Health care is becoming a multisided intermediary. There’s not one level of hospitals and insurance companies and other players. To participate in the health care system you have to plug into these platforms in multiple sides. It’s changing not just the economics but the delivery of health care. There is concern from doctors about not treating patients the way they want to. There’s concern about nurses and pharmacists. We are probably today in 2025 where Big Tech was in 2014 when it comes to health care. There’s even greater awareness but we’re only growing into an appreciation of the problem. In order to address the problem we have to take a step back and think about how health care presents itself in the marketplace.
It’s interesting that you bring up doctors and nurses and pharmacists. You really made an effort to get out there and listen to people living under monopoly, to visit law schools, to take the public pulse. Why was breaking down the barriers between Washington and the rest of America so important to you?
Antitrust is the people’s law. In order to serve the people, you have to understand what they think. The people have not just the right to participate, but we have the obligation to get them to participate. And in the last few decades antitrust got so technocratic, we got away from that. I always think about who my client is. When I worked at the Department of Justice my client was the public. So I had to have an open dialogue to know what my client thinks. To see what it was perceiving in the country. And I found a very well-informed public, whether it was a physician or nurse, or farmer dealing with meatpackers. They understood the problems they were facing and who was responsible. It’s table stakes for us as enforcers to ensure open lines of communication.
Those of us who follow antitrust closely recognize your leadership on these issues. But you weren’t on 60 Minutes. You weren’t on The Daily Show. You weren’t a cultural phenomenon. Was it useful to you to have someone else be the icon? And does that public attention matter?
First of all, let me say it was warranted, the FTC and Lina Khan did great work and deserved attention and praise. I have nothing but admiration for what Chair Khan was able to do and I was proud to work with her. The Department of Justice is a different culture, a different role. My approach was to keep our head down and deliver the best result we could in the time we had. We had a very ambitious agenda: to really revive and reinvigorate antitrust law by taking on the biggest problems and the biggest companies. We had to run as fast as we could, without compromising quality and precision.
The election results show, actually, that the public broadly wasn’t that educated about the work your agency and others in the Biden administration were doing. I’m wondering if this is part of why: In a list of accomplishments your team made, you cite 18 “confidential mergers” that were abandoned, and you’ve talked about a decline in problematic mergers being proposed. It’s hard to sell people on the benefits of things not happening. What should Americans take away from that? How are they actually benefiting?
This is the age-old challenge, how do you measure deterrence? It will take time for the public to feel the difference. When we took the job, we had a merger wave the likes of which we hadn’t seen in decades. The march to consolidation had occurred for decades at a steady pace. I saw public concern in the policy sphere that I had not experienced in my lifetime. We came in and announced that we would enforce the law and forcefully and formidably. We made some important announcements early on. I said we wouldn’t enter into cheap settlements in merger cases. We had created this patchwork quilt of divestitures and behavioral remedies, we had really created a loophole to allow mergers in.
When we started, I heard a lot of doubt that we wouldn’t succeed. By the time I was done, I heard a lot of frustration that we did succeed. We did forestall mergers that violated antitrust laws, and that helped our economy. When I assess it, I look to the words of the people who were affected, the folks who would have put together those problematic mergers. These companies that didn’t merge were not negatively affected. In fact they thrived. Instead of just merging to grow they had to innovate their way out of their problems. Those are the competitive juices we want flowing out of our economy. To the extent that small startups want to compete, we want them to stay in the economy. This is the next generation of American companies. I’m pleased that for me, in three years and a month, we were able to do that, to get on that pathway.

Graeme Sloan/Sipa USA via AP Images
Another thing you accomplished are the 2023 merger guidelines, which have now been cited in I think ten separate cases. Are you surprised by the way the courts have embraced them so quickly?
I think at least ten. And by comparison, the 2010 merger guidelines were cited four times in their first year. We took a fundamentally different approach. When we drafted the guidelines, this question of “what will the courts adopt?” was not the question we asked internally. We said, we’re not asking courts to adopt guidelines, we are writing guidelines to adopt to the courts. So for the first time in the merger guidelines, we cited to cases. As a result, they are not only more durable but more persuasive in the context of a courtroom.
When I started on the project, I gave an assignment to my team, and it was a difficult one. I said, I want you to write me a detailed memo on the state of merger law. But I don’t want you to use the merger guidelines, I want you to use the text of the statutes and existing cases. And then print out every merger decision since the Clayton Act, and put them in a big binder in my office. I read through every single merger decision in that binder. When the memo came back, the summary of merger law using the case law diverged, in some ways significantly, from the existing merger guidelines. That divergence had been occurring for decades. And the gulf was getting wider, not narrower. It demonstrated to me that anchoring the merger guidelines in the law was not only a sound approach, but likely to succeed in the context of a courtroom.
I wanted to bring up the Cargill wage-fixing settlement, because it ended up with a pretty transformative remedy reforming the tournament system that pits poultry farmers against one another. Criminal cases don’t often seek to improve the industry’s basic structure. Why was that important in that case and in your general philosophy on remedies?
That case was actually a civil settlement. But there is an example of a criminal settlement that improved market structure. It was a case against Teva and Glenmark, two generic pharmaceutical companies. We gave them big fines but the danger is that a big fine is joke, like a parking ticket for these companies. So we added a resolution that said you have to divest the assets at the center of the conspiracy. You can’t use the business units at the source of the criminal violation. When you think about accountability, that’s a good example of moving the ball forward.
As enforcers we don’t want to get overzealous to fix every problem with a regulatory solution. We try to make sure that market is competitive. In gnarly conduct cases, how you remedy the violation can get tricky and overly regulatory. We developed ways to do it internally. Look to the law, deny the company the fruits of the violation, prevent recurrence, and make sure that the public doesn’t shoulder the burden of a failed remedy. It should be burdened by the folks who violated the law.
A remedy is only good in the context of enforcement. A conclusion that a practice was illegal is important to fight for. We wanted to fight for strong remedies with a likelihood of success. The best remedy is one you enter into early on. If you have illegal conduct lasting over decades, the remedy is going to be messier. It’s going to require forward-looking insights into where the markets are going, to ensure that the next generation of competitors have the opportunity to flourish.
I can sort of hear some hints about the Google remedy in that answer. This was a case initially pursued by Trump’s Justice Department. You won the verdict that Google monopolized search, now the remedy phase is up to them. What’s your case for them to follow the remedy you have laid out?
There’s no way to know what the next administration is going to do until they take the reins and make decisions. We’ve continued what they started. We continued developing the law and litigating cases or taking on investigations initiated before we got there, to ensure we’re pursuing continuity but also that we’re solving the biggest problems. The biggest problems on the day before an administration changes are the same on the day after. The pace should be dictated by the needs of the public, what’s happening in the wild. The issues we took on are front of mind for people. The high cost of rent for a family, or the price of selling livestock to a meatpacker, or a small app developer and their relationship to Big Tech companies, or a media company looking to sell advertising. Or somebody going to a concert and wanting to afford their groceries at the same time. These issues have a deep resonance for the public and that’s going to continue. To the extent that the next crew is allowing the pace of concern existing in the public sphere as a guiding light on where to go, I hope that will continue without much of a difference.
One big initiative in competition policy in the Biden administration was the whole-of-government approach, working with other agencies. What did you learn from that, how did it help both DOJ Antitrust and those agencies in terms of gaining knowledge and expertise?
I feel like we only scratched the surface. I think you would hear the same from a lot of those agencies. These were untapped resources and collaborations that should have been undertaken generations ago. If we learned how to work together better and more, we would gain a lot of knowledge. USDA [the U.S. Department of Agriculture] and DOT [the Department of Transportation] have a lot of knowledge about what they oversee that was helpful to us as we worked in those markets. The other piece, the connection with labor, whether with the Department of Labor or the NLRB [National Labor Relations Board], was extraordinarily productive. They wanted to work with us. It showed me that the instincts to bridge labor and antitrust were right. People in the labor world understand asymmetries of power. They know that when businesses have power over workers, it’s difficult to counteract. It’s very natural for the two sides to work together, and a lot more that can be done.
Right, and the Simon & Schuster case was certainly groundbreaking in terms of blocking a merger due to labor harms. But then Simon & Schuster was sold to a private equity firm. Are there limits of what antitrust can do in terms of labor?
I think there are always limits in every area, and it’s important to be mindful of that. But I think that’s where working hand in glove with other enforcement agencies can be valuable. Early on in my tenure, we submitted a briefing note in an NLRB matter that ended up changing how people operated in the gig economy. The approach in Cargill that you mentioned laid out a remedy for the tournament system that ended up in rules laid out by USDA. Taking the baton and handing it off to a regulatory agency can be very valuable. Participating in the process as appropriate can help move the needle. We can’t lose sight of our own enforcement efforts. We have to look at our own backyard, while also having knowledge of what’s on our block.
You’ve talked about this kind of outsourcing that goes on in the agency with regard to expert witnesses. How you have to keep hiring witnesses to counter the other side. It’s an extension of the privatization and use of contractors across the government. But how do you actually slow that down when experts are valued in court cases?
It’s spiraling out of control. The cost of hiring experts and dealing with the arms race in litigation can run into tens of millions of dollars just for a single case. Many of those experts never end up testifying. You’re putting experts on a list so you have a rebuttal witness to the other side. It’s spiraling out of control and it’s wasteful for taxpayers and courts. We need to do a better job of limiting experts to testify. And if we’re calling experts, we should call people who really have industry knowledge, and are not just hired to take the stand. We’ve veered from expertise that’s rooted in actual knowledge and expertise about something, about a service and a market. Now we’re just hiring someone with credentials. We need to reorient around when the use of an expert is persuasive and when it’s used to neutralize someone else’s expert.
That’s interesting that it becomes a kind of escalation.
It becomes a very expensive arms race that ends up providing little or no value to the court. When the experts testify, you hear they netted each out, and the courts are more interested in what the facts were. Sometimes expertise is valuable, if you’re trying to understand how code works and they can figure it out. But it’s verged into the concept of hiring a person with general knowledge and asking them what they think. I don’t think that’s the proper role of experts in litigation. It should be to offer specific and direct expertise, helping to interpret facts as a piece of the puzzle.
What would you tell your successor is the most important thing about the job?
I think the most important thing is to pick your true north and then keep that as your guide. Because it’s really easy in a job like this to get distracted. It’s easy to get overwhelmed by competing priorities and obligations. It goes by fast and there’s a lot to do. But if you have your true north, it’s a lot easier to make hard decisions. I kept a compass on my desk for that reason. You have to make hard decisions. My true north is, my client is the public, what’s in the best interest of my client. It’s easier to make decisions if you know where you’re going.
Forty years of underenforcement was never going to turn around in one term. What needs to be done to keep up the momentum? Do you think private litigation and state-level enforcement is enough?
I think it’s filing cases and seeing cases through litigation. When courts render decisions and clarify the law it changes behavior. If you’re going to have vigorous law enforcement, you can’t depend on private plaintiffs. They won’t take on the cases that will protect the public, they will seek relief for personal needs. Which is appropriate for them to do. We need the Department of Justice and the FTC bringing cases that are necessary to protect the public, and help the law keep pace with market realities. We lost that way. It’s been decades since DOJ has been a litigant at the Supreme Court in a case where it filed an enforcement action, the last time was only shortly after I was born. During that period, we saw the law in my view deteriorate in its applicability, to the extent that it reflects market realities. When DOJ is not there with a seat at the table, the consequences are significant. We need to continue being there and having a voice.