The Role of Antitrust Enforcement in Modern Merger Policy: Antitrust Law Protects Consumers in the Face of Big Company Mergers

Antitrust law serves as the backbone of market competition in the United States, ensuring that corporate consolidation does not override consumer rights. The Sherman Act of 1890 and the Clayton Act of 1914 regulate mergers that might “substantially lessen competition.”[1] This means that larger companies seeking to extend their influence through mergers are under close scrutiny by the Department of Justice (DOJ) and the Federal Trade Commission (FTC). These government agencies evaluate whether the combination of both businesses’ market decisions, pricing strategies, and potential reductions in consumer choice could undermine free-market competition, which antitrust statutes were designed to preserve. In an economy increasingly controlled by a small number of major corporations, these laws maintain a critical mechanism that balances growth and accountability, especially in a predatory market.[2]

In United States v. JetBlue Airways Corp. (2023),[3] the DOJ successfully blocked the proposed merger between Spirit Airlines and JetBlue, arguing that it would violate the Clayton Act because it would eliminate a low-cost competitor and raise fares. By blocking the merger, the DOJ helped maintain competition in the airline market by guaranteeing affordable options available to the public. This case represents an antitrust enactment that focuses on market share statistics and how daily consequences for consumers, such as price increases and fewer travel options, become relevant.  

Similarly, in the FTC’s challenge to the proposed Albertsons-Kroger merger, regulators argued that the combination would grant the combined company excessive power in regional grocery markets, resulting in higher prices, reduced wages, and reduced access for consumers and workers.[4] These cases highlight how courts interpret a “substantial lessening of competition” as requiring consideration not only of market share, but also its daily effects on innovation, consumer prices, and access. Additionally, these cases show how courts continue to evaluate mergers through the consumer welfare standard, as the complaint regarding the Albertsons-Kroger merger centered around lowered access, higher prices, and diminished competitive pressure. The consumer welfare standard, which has been reaffirmed through decades of precedent such as United States v. Philadelphia National Bank (1963),[5] remains the leading test for administrative purposes because it offers a consistent, consumer-focused framework that agencies can apply across numerous cases. 

Another underlying concern is the risk of irreversible market dominance. As firms grow in size, it becomes harder for new competitors to enter and survive, regardless of the industry. Antitrust laws aim to maintain a market with numerous viable players, keeping prices low while also promoting innovation and improving product quality.[6] These viewpoints shift the attention from short-term cost analysis to the long-term well-being of market structures. Regulators evaluate the potential effects of a merger, focusing on how it will impact the market rather than solely on the firms’ strategic justifications.[7] Taken together, all of these rulings affirm the independent agency’s role to explicate the open statutory goals into concrete protections for the public. 

Recent updates to the 2023 Merger Guidelines by the FTC and DOJ signal more aggressive enforcement of antitrust law, mirroring concerns about corporate concentration in technology and healthcare markets. These updated guidelines initiate intervention when mergers display risks, prompting regulators to stop negative consolidations before they make significant modifications to industries. Critics argue that such intervention risks discouraging reward size, but antitrust law’s primary legal mandate is to preserve competition. As industries consolidate more, courts and agencies will continue to define the boundaries of equal and just competition while ensuring that legal safeguards remain a primary force in defending consumer interests within the modern marketplace.[8] The new guidelines underline systematic risks, including when a merger could lead to a dominant firm’s position becoming more powerful or discouraging new competitors from joining the market. The enduring strength of antitrust law lies in its ability to evolve in the markets it regulates, keeping economic power in check while upholding fairness and equality under the law. 

Digital-platform markets display the importance of this approach. Today, beyond these immediate cases, antitrust enforcement involvement is increasingly predicated on evolving digital-platform markets, where a few dominant firms control search, advertising, and data analytics.[9] Regulators now evaluate not only traditional price effects but also harms correlated to data privacy, algorithmic control, and barriers to new entrants.[10] These considerations widen the current economy’s reliance on digital infrastructure and how modern economic power is defined by data, scale, and digital reach. As a result, merger review is becoming more proactive, anticipating harms before they occur.[11]

Furthermore, growing bipartisan support for antitrust reform suggests that enforcement will remain prevalent in the United States’ economic policy. Congressional proposals strive to tighten merger presumptions, increase funding for regulators, and impose stricter reporting requirements on big firms.[12] The goal of these reforms is to ensure that anticompetitive risks are flagged earlier in the merger review process, rather than after a deal has already progressed deep into the approval process. As long as policymakers, agencies, and courts are aligned in acknowledging the dangers of excess concentration, antitrust law will continue to serve as a critical safeguard in opposition to the consolidation of market power at consumers’ expense.[13]

Moreover, antitrust agencies increasingly recognize that competition is more than prices alone. Essential components of a competitive market include, at the very least, choice, access, innovation, and transparency.[14] Particularly in digital markets, pricing is rarely straightforward,  as it is often embedded in advertiser-funded models, subscription tiers, or bundled services that obscure the true costs to consumers. By gauging these intricate relationships, regulators can understand how a merger leads to a reduction in autonomy or limits meaningful alternatives. And consequently, the recent implementation actions demonstrate a change towards preventive antitrust law. Agencies are now trying to recognize what may happen if a commanding firm expands more, rather than solely assessing current market influences.[15] In rapidly growing industries, a single merger can reshape entire sectors overnight. By anticipating harm, regulators can block mergers that would stifle innovation, inhibit access, or undermine fair competition. Looking to the future, this approach underscores the need for antitrust law to keep its responsibility of ensuring that marketplace consolidation cannot occur quickly and quietly.[16]

Ultimately, the strength of antitrust law lies in its capabilities to grow beyond the markets it controls. Through cases like JetBlue-Spirit and Microsoft-Activision, modernized merger guidelines, digital market scrutiny, and bipartisan improvement efforts, the law continuously adjusts to protect its consumers from the dominance of unregulated concentration.[17] As industries grow in consolidation, antitrust enforcement will still be the center of ensuring corporate power does not overshadow consumer welfare in the modern economy, so it must be safeguarded.

[1] 15 U.S.C. § 18 (2012) 

[2] Federal Trade Commission & U.S. Department of Justice, 2023 Merger Guidelines (2023), https://www.justice.gov/atr/2023-merger-guidelines.

[3] U.S. Department of Justice, Justice Department Wins Challenge to JetBlue’s Proposed Acquisition of Spirit Airlines (Mar. 7, 2023), 

https://www.justice.gov/archives/opa/pr/justice-department-statements-jetblue-terminating-acquisition-spirit-airlines.

[4] Federal Trade Commission, FTC Challenges Kroger’s Acquisition of Albertsons (February 26, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/02/ftc-challenges-krogers-acquisition-albertsons 5 United States v. Philadelphia National Bank, 374 U.S. 321 (1963), 

https://supreme.justia.com/cases/federal/us/374/321/.

[5] United States v. Philadelphia National Bank, 374 U.S. 321 (1963), https://supreme.justia.com/cases/federal/us/374/321/.

[6] United States v. Philadelphia National Bank, 374 U.S. 321 (1963). https://supreme.justia.com/cases/federal/us/374/321/.

[7] Federal Trade Commission & U.S. Department of Justice. 2023 Merger Guidelines. 2023. https://www.justice.gov/atr/2023-merger-guidelines.

[8] U.S. Department of Justice, Antitrust Division Mission Statement (n.d.), https://www.justice.gov/atr/mission.

[9] Federal Trade Commission & U.S. Department of Justice. 2023 Merger Guidelines. 2023. https://www.justice.gov/atr/2023-merger-guidelines.

[10] Federal Trade Commission. FTC Seeks Temporary Restraining Order to Prevent Microsoft–Activision Merger. June 12, 2023. 

https://www.ftc.gov/news-events/news/press-releases/2022/12/ftc-seeks-block-microsoft-corps-acquisition-activisio n-blizzard-inc.

[11] U.S. Dep’t of Justice, Antitrust Division Mission, supra, note 7 

[12]  U.S. Department of Justice. Justice Department Wins Challenge to JetBlue’s Proposed Acquisition of Spirit Airlines. March 7, 2023. https://www.justice.gov/archives/opa/pr/justice-department-statements-jetblue-terminating-acquisition-spirit-airlines.

[13] U.S. Department of Justice. Antitrust Division Mission Statement. n.d. https://www.justice.gov/atr/mission.

[14] Ibid. 

[15] U.S. Dep’t of Justice, Mission Statement, supra note 12 

[16] FTC & U.S. Dep’t of Justice, Merger Guidelines, supra note 14 

[17] Federal Trade Commission & U.S. Department of Justice. 2023 Merger Guidelines. 2023. https://www.justice.gov/atr/2023-merger-guidelines.