By Brian Callaci and Sandeep Vaheesan

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After decades of operating in distinct silos, the antitrust and labor movements have lately intersected in powerful ways.[1] Progressive policymakers have taken up the cause as well. President Biden declared a clear interest in proworker antitrust with his 2021 Executive Order on promoting competition in the American economy, which singled out anti-worker trade restraints like non-compete agreements that bar employees from seeking new employment during a given period of time in the same line of work or same industry.[2] The Federal Trade Commission (FTC) and Department of Justice (DOJ) also signed agreements to coordinate more closely with the National Labor Relations Board.[3] In January 2023, the FTC proposed a rule to ban non-compete clauses in labor contracts[4] and signaled its intention not to prosecute independent contractors, at least in the gig economy, for engaging in concerted activity.[5] The antitrust division of the DOJ has aggressively prosecuted employer attempts to suppress wages through no-poach and non-hire agreements,[6] while also successfully blocking a merger—between publishers Penguin Random House and Simon & Schuster—solely on the grounds that it unfairly increased the publishers’ power as buyers vis-à-vis authors seeking to sell their work.[7]

The nascent rapprochement between labor and antitrust progressives is notable because antitrust policy in recent decades has had a decidedly mixed record with respect to workers. Under the “consumer welfare standard,” the dominant antitrust policy framework since the 1980s, antitrust enforcers and courts have concerned themselves principally with lowering consumer prices and maximizing product market output, regardless of the effects on workers.[8] Antitrust law is simply too important for the labor movement to ignore. To offer a simple overview of how the two fields relate: labor law governs the conduct of employers inside their firm boundaries, while antitrust is the body of law and regulation governing how firms behave in markets and how firms relate to  each other.[9] How legally distinct firms interact is of paramount importance to the well-being of workers and the power of organized labor. While unions have always aspired to regulate  competition between employers,[10] the antitrust regulation of interfirm conduct is becoming increasingly important for workers in an economy in which fissured workplaces and financial  ownership put power and control outside the reach of traditional collective bargaining relationships.

. . . [A]ntitrust policy in recent decades has had a decidedly mixed record with respect to workers.

Labor unions, worker centers, and other worker organizations have a chance to seize the opening created by antitrust enforcers’ newfound interest in worker welfare to shape the direction of reform. Most importantly, the labor movement can help push antitrust beyond its current preoccupation with narrow economic theories of competition and efficiency and help enforcers, practitioners, and judges recover and reinvigorate the notions of non-domination, fair competition, and worker self-government that united Progressive Era reformers like jurist Louis Brandeis with trade unionists like union presidents David Dubinsky and Sidney Hillman.[11]

Antitrust Law: The Salience of Fairness vs. Perfect Competition
The antitrust laws are rules of market governance. They regulate how individuals and companies conduct themselves in markets. The Sherman Act, which Congress enacted in 1890, governs, among other practices, restraints of trade like non-compete agreements and cartels, as well as monopolization, and attempted monopolization.[12] The two other principal federal antitrust laws are the Clayton Act and the Federal Trade Commission Act, both passed by Congress in 1914. The Clayton Act restricts  specific practices such as tying (requiring a purchaser to buy a second, undesired product as a condition of buying a first desired product) and mergers.[13] While the Clayton Act restricts specific unfair competitive tactics, the FTC Act gives the commission the broad authority to prohibit “unfair methods of competition” beyond what is already banned by the Clayton and Sherman acts.[14]

For years, the prevailing assumption in antitrust circles was that labor markets are generally “competitive” in that most workers in the United States have many prospective employers competing for their labor.

The antitrust laws include several labor-specific provisions. In the early years of federal antitrust law, the government and employers used antitrust to target labor activity.[15] To limit such misuses of antitrust, Congress passed two statutes directly protecting workers’ right to engage in concerted activity. The 1914 Clayton Act limits the application of the antitrust law to labor organizations (the “labor exemption to antitrust”) and allows workers to “lawfully carry out the legitimate objects” of these organizations.[16] Furthermore, in the Norris-LaGuardia Act of 1932, Congress restricted the federal courts’ jurisdiction in labor disputes and their ability to issue injunctions against strikes and boycotts.[17]

An underlying theme of the antitrust laws is justice and fairness. The familial connection between antitrust and labor policy is especially evident in the Fair Labor Standards Act of 1938. Congress echoed the Clayton and Federal Trade Commission Acts when it declared “the existence . . . of labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers . . . (3) constitutes an unfair method of competition in commerce . . . .”[18] In this landmark employment law, the federal government used a term of art from antitrust law and the FTC Act.[19]

Labor Impacts of Mergers
For years, the prevailing assumption in antitrust circles was that labor markets are generally “competitive” in that most workers in the United States have many prospective employers  competing for their labor.[20] A growing body of research has undercut this assumption in the antitrust community.[21] The DOJ and FTC can address labor market concentration. When they review mergers, they should evaluate their effects on concentration in labor markets and markets for other inputs, not just in consumer-facing markets. In November 2022, the DOJ successfully blocked a merger solely on employer power grounds. A federal court ruled that Penguin Random House’s proposed acquisition of Simon & Schuster (two of the big five publishing houses) would hurt best-selling authors and stopped the completion of the merger.[22]

While increasing competition among employers for workers’ services is one way to reduce employer power, collective bargaining is even more effective. It is always an option, while breaking up large employers into smaller firms is not often feasible. The labor movement thus has a role to play in teaching the antitrust movement about the role of collective bargaining in fighting employer power. The Communications Workers of America (CWA) recently proposed a promising framework. When Microsoft announced it would acquire videogame developer Activision, CWA reached a neutrality agreement with Microsoft: Microsoft agreed not to interfere with the right of Activision workers to unionize, an accord that would mitigate any harms to workers from the merger and its further concentration of the relevant labor markets.[23] While the FTC ultimately sued to block the merger, it did so because the merger could harm rivals to Microsoft in the gaming console and service markets and the purchasers of videogames, and the FTC was unwilling to trade off worker gains at the expense of consumers. CWA’s framework nonetheless remains a viable one for mergers where the harms at issue are to the labor side of the market, and it should be a model for future mergers.[24]

Antitrust: An Antidote to the Exploitation of the Fissured Workplace
While labor law gives workers collective bargaining rights against their immediate employers, the real power determining wage levels and working conditions often lies elsewhere. Workers at a local Subway fast food restaurant might form a union and bargain with the local franchisee that employs them, but the franchisee’s own basic business decisions, like what prices to charge and what sandwiches to offer, are determined by another, more powerful company—Subway the corporate franchisor. These types of business structures in which the locus of power is outside the workers’ immediate employer are examples of what economist and former head of the Wage & Hour Division of the Department of Labor David Weil has called the “fissured workplace.”[25] While labor law today is confined to a worker’s immediate employer, with some limited exceptions for “joint employers,” antitrust law governs how firms relate to each other. Thus, antitrust offers several tools for tackling the fissured workplace.

The anti-union Taft-Hartley Act of 1947 laid the legal groundwork for corporate outsourcing strategies like franchising and spinning off upstream suppliers that put workers outside the protections of labor law. First, Taft-Hartley outlawed secondary boycotts. Today, this means that workers at local McDonald’s franchisees, Amazon Delivery Service Partners companies, and GM suppliers are legally barred from engaging in collective action against the corporations that actually control their working conditions. Second, Taft-Hartley excluded independent contractors from the National Labor Relations Act, denying taxi drivers and similar workers access to collective bargaining, and made the misclassification of workers as independent contractors an attractive tactic for employers. Before the rise of two-tier contracts, workplace fissuring created a two-tier labor force, as unions were unable to extend contracts to outsourced suppliers or workers classified as independent contractors.[26]

Contracts known as “vertical restraints” in the antitrust community are a key mechanism in creating fissured workplaces. Businesses use vertical restraints to limit the competitive activities of another business or individual at a different level of competition. For example, McDonald’s corporation restricts local McDonald’s franchisees from setting their own prices, choosing their own suppliers or hours of operation, and until recently, recruiting or “poaching” workers from other McDonald’s franchisees.[27] Vertical restraints allow McDonald’s to control a national uniform chain, despite most restaurants being owned and operated by nominally independent franchisees. Similarly, Amazon uses vertical restraints like exclusive contracts, price controls, and route prescriptions to control the independent fleets of Amazon-branded vans that deliver packages to customers’ homes and businesses.[28]

In November 2022, the Department of Justice successfully blocked a merger solely on employer power grounds.

By using vertical restraints instead of directly owning restaurants or delivery trucks, McDonald’s and Amazon outsource employment responsibilities and legal liabilities to separate businesses. In a related strategy, so-called “gig” companies like Uber and DoorDash go the extra step of using vertical restraints not merely to displace employment responsibilities to third parties but to misclassify each worker as an independent contractor.[29] Gig employers allocate customers and dictate pay and prices through contract terms rather than traditional employment  relationships, thus excluding workers from collective bargaining, minimum wage, and other legal rights.

Judicial reinterpretations of antitrust doctrine on vertical restraints were key to enabling this type of fissuring. From the 1940s through the 1970s, corporations had limited ability to control independent contractors and businesses through contracts. If they wanted to exercise such control, they had to vertically integrate through corporate ownership and make the workers at the vertical affiliate employees (workers entitled to collective bargaining rights under the new National Labor Relations Act and minimum wage and overtime rights under the Fair Labor Standards Act).

Antitrust law has multiple tools to combat the maintenance and growth of . . . supply chain buyer power.

Franchisors and their allies undertook a campaign of lobbying and litigation to change the antitrust laws. Their efforts bore fruit in 1977, when in Continental T.V. v. GTE Sylvania, the Supreme Court dismissed traditional concerns about freedom from corporate control and reasoned that vertical restraints, such as territorial restrictions, could increase economic efficiency.[30] Sylvania was the first in a series of Supreme Court rulings that remade antitrust law on vertical restraints. While rarely recognized as such by labor scholars, these decisions were an important part of the deregulatory push of the neoliberal era, as they put increasing numbers of workers outside the protection of labor and employment laws and into the far more employer-friendly terrain of contract law and a new big business-friendly antitrust law. The post-1977 change in antitrust treatment of vertical restraints was a policy choice, which could be reversed today. As we have argued elsewhere, the FTC can re-regulate vertical restraints using its broad Section 5 ability to prohibit unfair methods of competition. It should do so now, to combat abuses prevalent in the fissured workplace.[31]

Protecting Supply Chain Workers’ Wages against the Power of Large Retailers
Large corporations today exercise monopsony power over their entire supply chains.[32] Major retailers such as Amazon, Target, and Walmart are important outlets for manufacturers and suppliers of a wide array of goods. Accordingly, these retailers can place downward pressure on wholesale prices and demand other concessions from their suppliers.

As suppliers are squeezed by power buyers, they have, in turn, sought to maintain their margins by squeezing their own workers through wage cuts, reductions in benefits, and layoffs. One empirical analysis found that the increased buying clout of retailers since the late 1970s accounts for about 10 percent of wage stagnation (the divergence between average worker productivity and average wages) between 1978 and 2014.[33] The suppliers’ own suppliers may feel the pain of downstream buyer power. Carolina Mills, a yarn maker, blamed its rapid decline on Walmart depressing the prices it paid to its apparel suppliers. Under pressure from Walmart, the apparel makers, in turn, pressured the yarn maker to grant them unsustainable price discounts.[34]

Antitrust law has multiple tools to combat the maintenance and growth of this supply chain buyer power. The DOJ and the FTC can stop mergers that further augment buyer power, such as the proposed tie-up between Kroger and Albertsons now being reviewed by the FTC. The antitrust agencies can also combat unfair competitive practices that permit these firms to gain a leg up over rivals. For instance, they can challenge below-cost pricing under Section 2 of the Sherman Act and Section 5 of the FTC Act. Uber has similarly been accused of using aggressive pricing to steal market share away from taxis, only to use its newfound power over drivers. Large retailers have allegedly used such aggressive pricing to obtain dominant positions in local markets.[35] More ambitiously, the FTC can also challenge violations of generally applicable laws, such as labor law, as an unfair method of competition. Retailers such as Walmart have thwarted unionizing by their workers and thereby obtained a significant—and unfair—competitive advantage over highroad rivals that comply with labor and employment laws.[36]

Antitrust reformer Louis D. Brandeis . . . believed the government should set out rules of fair competition to . . . discourage competition based on unfair tactics like predatory pricing, product adulteration, or exploitation of workers.

Finally, the agencies should revive the Robinson-Patman Act as a means of targeting the misuses of buyer power.[37] The Robinson-Patman Act prohibits the seeking or granting of special discounts to buyers that are not justified by distribution or manufacturing cost savings but are instead the result of raw buyer power. An example might be Amazon requiring a discount from book publishers, unrelated to any cost saving, which gives Amazon an important competitive advantage and can place upward pressure on the publishers’ wholesale prices to other book retailers.[38] The federal government has followed a policy of non-enforcement of this law for decades.[39] Encouragingly, the Biden administration has signaled an interest in enforcing the law once again.[40] Enforcement of the Robinson-Patman Act would target one important form of buyer power abuse and aid independent firms that lack buying clout and cannot use it as a competitive weapon.

Fair Competition: A Pro-Worker Framework for Antitrust Policy
While the economics informing antitrust law today idealizes markets with “perfect competition” free from government “intervention,” such “unregulated markets” do not exist in the real world. All markets are governed by a set of rules and norms governing how market participants compete. The question is which rules, and who sets them?[41] Antitrust reformer Louis D. Brandeis, architect of the FTC, believed the government should set out rules of fair competition to encourage companies to compete on the basis of socially beneficial innovation and product quality and to discourage competition based on unfair tactics like predatory pricing, product adulteration, or exploitation of workers.[42] Brandeis and his allies wanted to prevent companies from reaching monopolistic size through these illegitimate tactics, while allowing companies a pathway to growth through the attainment of genuine economies of scale. This antitrust philosophy has been openly embraced by reformers like current FTC commissioner Alvaro Bedoya.[43] These officials still need to hear more from labor to understand how best to protect worker interests.

While labor and the antimonopoly movements will not always see eye to eye, the common ground is growing. The Athena Coalition, for example, contains both worker centers and antimonopoly groups united by their opposition to Amazon’s corporate power.[44] Furthermore, even as antimonopoly groups oppose high prices when they are driven by monopoly power, they also consistently oppose low prices resulting from predatory pricing or from unfair methods of competition like squeezing suppliers.[45]

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Notes
1. Suresh Naidu, Eric A. Posner, and Glen Weyl, “Antitrust Remedies for Labor Market Power,” Harvard Law Review 132, no. 2 (2018): 536-601; Sanjukta Paul, “Recovering Labor Antimonopoly,” New Labor Forum 28, no. 3 (September 1, 2019): 34-41; Eric A. Posner, How Antitrust Failed Workers, 1st ed. (New York: Oxford University Press, 2021); Hiba Hafiz, “Labor Antitrust’s Paradox Symposium: Reassessing the Chicago School of Antitrust Law,” University of Chicago Law Review 87, no. 2 (2020): 381-412; Sanjukta Paul, “Antitrust as Allocator of Coordination Rights,” UCLA Law Review 67 (2020): 378–431.
2. Joseph R. Biden, “Executive Order on Promoting Competition in the American Economy,” White House, July 9, 2021, available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-inthe-american-economy/.
3. “Memorandum of Understanding between the Federal Trade Commission and the National Labor Relations Board,” July 19, 2022, available at https://www.ftc.gov/system/files/ftc_gov/pdf/ftcnlrb%20mou%2071922.pdf; “Memorandum of Understanding between the U.S. Department of Justice and the National Labor Relations Board,” July 26, 2022, available at https://www.nlrb.gov/sites/default/files/attachments/pages/node-7857/dojantitrust-nlrbmou-72622.pdf.
4. Non-Compete Clause Rule, 88 Fed. Reg. 3482 (proposed January 19, 2023), available at https://www.ftc.gov/system/files/ftc_gov/pdf/p201000noncompetenprm.pdf.
5. “FTC Policy Statement on Enforcement Related to Gig Work,” September 15, 2022, available at https://www.ftc.gov/system/files/ftc_gov/pdf/Matter%20No.%20P227600%20Gig%20Policy%20Statement.pdf, footnote 68, page 14.One commissioner, Rebecca Kelly Slaughter, wrote that “there is a case to be made that even properly classified independent contractors should get the benefit of the labor exemption for labor organizing efforts.” “Statement of Commissioner Rebecca Kelly Slaughter FTC Policy Statement on Enforcement Related to Gig Work,” September 15, 2022, available at https://www.ftc.gov/system/files/ftc_gov/pdf/rks-gig-worker-policy-statement.pdf.
6. United States v. VDA OC, LLC, No. 2:21-cr-00098 (D. Nev., 2022)
7. United States v. Bertelsmann SE, 2022 WL 16949715 (D.D.C 2022).
8. The Supreme Court stated in a 1990 decision, “Low prices benefit consumers regardless of how they are set.” Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328,329 (1990).
9. Marshall Steinbaum, “Common Ownership and the Corporate Governance Channel for Employer Power in Labor Markets,” The Antitrust Bulletin 66, no. 1 (2021): 138.
10. Brian Callaci, “Labor and the Problem of Monopoly: Collective Bargaining and Market Governance 1890-Present,” Politics & Society, July 16, 2023, available at https://doi.org/10.1177/00323292231183818; Colin Gordon, “The Lost City of Solidarity: Metropolitan Unionism in Historical Perspective,” Politics & Society 27, no. 4 (1999): 561-85; Ruth Milkman, L.A. Story: Immigrant Workers and the Future of the U.S. Labor Movement (New York: Russell Sage Foundation, 2006).
11. Brandeis brokered the Protocol of Peace between the International Ladies Garment Workers Union and the clothing manufacturers association following the Uprising of the 20,000 in 1909. He believed that unions could prevent concentration and monopolization, by preventing employers from engaging in the cutthroat price- and wage-cutting that he believed led to bankruptcies and mergers. By channeling competition away from ruthless price-cutting and toward quality and technical efficiency, he believed unions played a key role in governing markets and upholding fair competition. He also shared with the garment union leaders a belief in unions as incubators of democratic politics on the shop floor and in the political sphere. (Nonetheless, Brandeis was not a full-hearted trade unionist: he opposed the closed shop.) See Richard A. Greenwald, The Triangle Fire, the Protocols of Peace, and Industrial Democracy in Progressive Era New York (Philadelphia: Temple University Press, 2005).
12. 15 U.S.C. §§ 1-2.
13. 15 U.S.C. §§ 14, 18.
14. 15 U.S.C. § 45.
15. Loewe v. Lawlor, 208 U.S. 274 (1908). Sandeep Vaheesan, “Accommodating Capital and Policing Labor: Antitrust in the Two Gilded Ages,” Maryland Law Review 78, no. 4 (2019): 766.
16. 15 U.S.C. § 17.
17. 29 U.S.C. § 101.
18. 29 U.S.C. § 101 (emphasis added).
19. Indeed, Donald Richberg, a former head of the National Recovery Administration who testified in support of federal minimum wage and overtime legislation, favored using antitrust law and making “work under substandard labor conditions an unfair method of competition subject to the jurisdiction of the Federal Trade Commission.” See John S. Forsythe, “Legislative History of the Fair Labor Standards Act,” Law and Contemporary Problems 6 (1939): 465.
20. Eric Posner, How Antitrust Failed Workers (New York: Oxford University Press, 2021).
21. David Card, “Who Set Your Wage?” American Economic Review 112, no. 4 (2022): 1075-90; José Azar, Ioana Marinescu, Marshall Steinbaum and Bledi Taska, “Concentration in US Labor Markets: Evidence from Online Vacancy Data,” Labor Economics 66 (October 1, 2020): 101886; José A. Azar, Steven T. Berry, and Ioana Marinescu, “Estimating Labor Market Power,” Working Paper, Working Paper Series, National Bureau of Economic Research, August 2022, available at https://www.nber.org/papers/w30365.
22. United States v. Bertelsmann SE, 2022 WL 16949715 (D.D.C 2022).
23. Chris Shelton, “For Once, the FTC Is Considering a Merger That Helps the Workers,” The Hill (blog), December 5, 2022, available at https://thehill.com/opinion/technology/3762122-for-once-the-ftc-is-considering-a-merger-that-helps-the-workers/.
24. Antitrust reformers do not always fully grasp the role of unions in labor markets. For example, when the Federal Trade Commission blocked a hospital merger in Rhode Island in 2022, the two Democratic commissioners issued a concurring statement claiming they did so partially to protect workers from monopsony power. They did so over the voices of workers themselves though, ignoring that most of the affected workers were represented by unions, who, far from fearing employer monopsony, supported the merger. In a highly unionized labor market, workers have little to fear from monopsony, and in the case of Rhode Island, the most likely alternative to a non-profit monopoly was anti-union private and private equity buyers. Available at https://www.abc6.com/unap-totestify-in-favor-of-lifespan-and-care-new-england-merger-at-public-comments-meeting/
25. David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It (Cambridge: Harvard University Press, 2014).
26. For example, the Teamsters Union complained to Congress in 1963 that Taft-Hartley gave oil companies “double-barreled immunity” from both antitrust and labor laws, pointing out that oil companies were classifying franchised dealers as independent contractors, which denied them collective bargaining rights, while at the same time using vertical restraints to control dealers as if they were employees. See H.R. REP. NO. 88-1943, at 83 (1963), available at https://books.google.com/books?id=uWUT9yrFVE4C&newbks=1&newbks_redir=0&dq=Impact%20Upon%20Small%20Business%20of%20Dual%20Distribution%20and%20Related%20Vertical%20Integration&pg=PR1#v=onepage&q=Impact%20Upon%20Small%20Business%20of%20Dual%20Distribution%20and%20Related%20Vertical%20Integration&f=false. Meanwhile in 1965, the UAW asked for an  antitrust investigation into the monopsony power auto companies enjoyed over newly outsourced parts spun off from the big Detroit automakers. See Robert T. Averitt, The Dual Economy:  Dynamics of American Industry Structure (New York: W.W. Norton & Company, 1968), 144.
27. Available at https://www.atg.wa.gov/news/newsreleases/ag-report-ferguson-s-initiative-ends-nopoach-practices-nationally-237-corporate.
28. Josh Eidelson and Matt Day, “Amazon Work Rules Govern Tweets, Body Odor of Contract Drivers,” Bloomberg.Com, May 5, 2021, available at https://www.bloomberg.com/news/articles/2021-05-05/amazon-work-rules-govern-tweets-body-odor-of-contract-drivers.
29. V. B. Dubal, “Winning the Battle, Losing the War: Assessing the Impact of Misclassification Litigation on Workers in the Gig Economy,” Wisconsin Law Review 2017 (2017): 739; Marshall Steinbaum, “Antitrust, the Gig Economy, and Labor Market Power Work after the End of Employment,” Law and Contemporary Problems 82, no. 3 (2019): 45-64; Hiba Hafiz, “The Brand Defense,” Berkeley Journal of Employment and Labor Law 43, no. 1 (2022): 1-78; Andrew Elmore, “Regulating Mobility Limitations in the Franchise Relationship as Dependency in the Joint Employment Doctrine,” UC Davis Law Review 55 (2021): 1227; Andrew Elmore and Kati L. Griffith, “Franchisor Power as Employment Control,” California Law Review 109 (2021): 1317.
30. Continental TV, Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977).
31. Brian Callaci and Sandeep Vaheesan, “Antitrust Remedies for Fissured Work,” Cornell Law Review Online 108, no. 27 (2023): 27-60.
32. Richard Appelbaum and Nelson Lichtenstein, “A New World of Retail Supremacy: Supply Chains and Workers’ Chains in the Age of WalMart,” International Labor and Working-Class History 70 (2006): 106-25; Nelson Lichtenstein, The Retail Revolution: How Wal-Mart Created a Brave New World of Business (New York: Picador, 2010).
33. Nathan Wilmers, “Wage Stagnation and Buyer Power: How Buyer-Suppliers Relations Affect U.S. Workers’ Wages, 1978 to 2014,” American Sociological Review 83, no. 2 (March 2018): 231.
34. Charles Fishman, “The Wal-Mart You Don’t Know,” Fast Company, December 1, 2003, available at https://www.fastcompany.com/47593/wal-mart-you-dont-know.
35. Wal-Mart Stores, Inc. v. American Drugs, Inc., 319 Ark. 214 (1995).
36. Susan Berfield, “How Walmart Keeps an Eye on Its Massive Workforce,” Bloomberg Businessweek, November 24, 2015, available at https://www.bloomberg.com/features/2015-walmart-union-surveillance/.
37. 15 U.S.C. § 13.
38. Hal Singer and Ted Tatos, “Protecting the U.S. Postal Service from Amazon’s Anticompetitive Assault,” econOne, 2022, available at https://www.econone.com/news-article/read-hal-singer-and-ted-tatos-article-protecting-the-u-s-postal-service-from-amazons-anticompetitive-assault/.
39. Ryan Luchs, Tansev Geylani, Anthony Dukes, and Kannan Srinivasan, “The End of the Robinson-Patman Act? Evidence from Legal Case Data,” Management Science 56, no. 12 (December 2010): 2125.
40. Executive Order on Promoting Competition in the American Economy § 5(i)(iv), available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/.
41. Steven K. Vogel, Marketcraft: How Governments Make Markets Work (New York: Oxford University Press, 2018).
42. Gerald Berk, Louis D. Brandeis and the Making of Regulated Competition, 1900-1932 (New York: Cambridge University Press, 2009).
43. Alvaro Bedoya, “Returning to Fairness,” Midwest Forum on Fair Markets: What the New Antimonopoly Vision Means for Main Street, Minneapolis, September 22, 2022, available at
https://www.ftc.gov/system/files/ftc_gov/pdf/returning_to_fairness_prepared_remarks_commissioner_alvaro_bedoya.pdf.
44. The Open Markets Institute, where both authors work, is a member of the Athena Coalition.
45. Stacy Mitchell, Kennedy Smith, and Susan Holmberg, The Dollar Store Invasion (Institute for Local Self-Reliance, 2023), available at https://cdn.ilsr.org/wp-content/uploads/2023/01/ILSR-Report-The-Dollar-Store-Invasion-2023.pdf.

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Author Biographies
Brian Callaci is the Chief Economist at the Open Markets Institute. He previously worked at the Strategic Organizing Center and Workers United.

Sandeep Vaheesan is the Legal Director at the Open Markets Institute.