Mark Meador, an experienced antitrust lawyer and Washington insider who is President-elect Donald Trump’s pick to the fifth seat at the US Federal Trade Commission, believes there are societal benefits to limiting the concentration of power and doesn’t hide his criticism of Big Tech. The nomination signals the president’s intent to maintain rigorous antitrust enforcement, particularly in the tech sector.
Mark Meador, an experienced antitrust lawyer and Washington insider who is President-elect Donald Trump’s pick to the fifth seat at the US Federal Trade Commission, believes there are societal benefits to limiting the concentration of power and doesn’t hide his criticism of Big Tech.The nomination signals the president’s intent to maintain rigorous antitrust enforcement, particularly in the tech sector.
Meador has spent time both at the FTC and at the US Department of Justice, as well as at the Senate as deputy chief counsel for antitrust and competition policy for Utah Senator Mike Lee. He says there are political benefits to the antitrust laws and societal benefits to limiting the concentration of power in society.
‘‘For some reason, we've become seduced by the Libertarians and have forgotten the dangers of concentrated economic power, and antitrust law is really meant to help deal with that,’’ he said in an interview with American Moment last year.
Meador said fighting economic power is a goal that favors the application of the antitrust laws, addressing concerns about false negatives and under-deterring — examples of his pro-enforcement and populism approach.
Many questions about concentrated power have come up in the context of the tech sector, but Meador said finance, agriculture and the airline industry are areas of concern.
‘‘Who's happy with their experience in an airport today, and who thinks that the culture and mood you find in an airport today is good for American society?’’ Meador asked in the American Moment interview. Because "it's not hard to see how massive concentration of literal economic power [and] control over where wealth is distributed, has immediate effects on communities.’’
— Mergers —
On other antitrust topics, Meador doesn’t speak against all the current regulatory policies. For example, he hasn’t been a big critic of new merger guidelines issued in 2023, further indicating he doesn’t support radical change at the FTC.
Meador told American Moment that when he read through the guidelines for the first time, he saw a list of everything that he had looked at when he was an attorney at the FTC between 2011 and 2016 and at the DOJ between 2019 and 2021. The differences are in the emphasis, he said.
‘‘I think what went wrong was the 'exception to the rule' became the 'rule,' kind of became the 'assumption',’’ he said, talking about the structural presumptions the guidelines adopt.
In addition to putting more emphasis on structural presumptions, the guidelines are also more skeptical of economic and efficiency claims, of pro-competitive benefits and other things that would offset the potential risk of harm, he said.
‘‘There's certainly stuff in [the guidelines] that I wouldn't have embraced or endorsed. But I think the disagreement with the underlying policy ultimately boils down to, 'are you more concerned about over deterrence or under deterrence'?’’ Meador said.
Meador believes that false positives — when there's a block on a deal that could have been procompetitive — were avoided, but at the cost of a lot of false negatives — not blocking anticompetitive deals. He said the guidelines represent the view that the government needs to dial back on its concerns of false positives and be more skeptical of justifications. “[I]t turns out there are significant costs to under enforcement of the antitrust laws,’’ he said.
— Litigation —
Antitrust cases need to be picked carefully, Meador said, and they need to be very fact-specific. “There's a strategy at a higher level as well, of making sure you pick a case where you can get good law, because bad facts make bad law, right?” he said.
On some of the cases brought by the current administration that he didn’t think it should have been brought, Meador said the FTC’s challenge to the Meta-Within merger is ‘‘definitely a head scratcher for a lot of folks.’’ Potential-competition theory was already a viable theory and that just cost a lot of resources, he said.
As for the best case under the Biden administration, Meador said he’s biased, but it's the DOJ's lawsuit against Google alleging monopolization of the advertising technology markets. ‘‘I think it's a very sound theory. I think I've been looking at those issues for a long time, and I've been saying for that entire time that that was really Google's weak spot. It’s how they're running their whole ad tech Empire,’’ he said.
Through a series of acquisitions in the early 2000s culminating with their acquisition of DoubleClick in 2008, Google acquired basically the dominant players across the entire ad tech stack, he said. Google is fighting three similar lawsuits in parallel across US federal courts in New York, Texas and Virginia. Trial in the DOJ’s lawsuit in Virginia just wrapped up, with the government seeking a remedy that would split DoubleClick and AdMeld from Google (see here).
— Big Tech critic —
When the DOJ and multiple states sued Live Nation and Ticketmaster for monopolizing the live events and ticketing industry, Meador cheered the agency on.
"Great to see DOJ tackle this monopoly head-on," he wrote in a LinkedIn post. The lawsuit by the DOJ and multiple US states seeks to split the companies apart.
Meador, who wears another hat as president of the Fan Fairness Coalition, has repeatedly called for Live Nation to be broken up. The 2010 merger of Live Nation and Ticketmaster was ill-advised, he said.
Aside from demanding a breakup, the coalition seeks changes in live-event ticketing, access to ticket purchases with ease and without surprise fees, and the right for fans to own the tickets they purchase with the right to transfer or resell them.
"This is foremost an antitrust issue, and addressing it as such is the first hurdle we need to clear if we want the market to function competitively. Ticketmaster must be broken up to restore market competition," he said in a May 2024 post on X.
Meador has supported the "TikTok bill" or the Protecting Americans from Foreign Adversary Controlled Applications Act, writing in an opinion for The Hill that it is constitutional. The bill would make it illegal for foreign adversaries of the US — mainly the governments of China, Russia, Iran, and North Korea — to operate or own an app or website in the country.
— Politics, power and more enforcement —
Meador believes conservatives are coming around on the use of political power as well, and it's not about punishing your enemies or an eye for an eye, or being vindictive, but acknowledging that the government has a legitimate role to play in protecting economic liberties and cultural values, and not just offload everything to the private sector or a free market and assume that a free market is self perpetuating.
‘‘What we're seeing now in terms of antitrust policy is almost a return to the authentically conservative understanding that concentrated economic power is just as dangerous as concentrated political power,’’ Meador said, citing DOJ Assistant Attorney General Jonathan Kanter, his former mentor at law firm Paul Weiss, though he said Kanter stole it from him.
‘‘If you're gonna have a free market, it has to be fair. You have to have rules of the road,’’ he said. ‘‘And we're not talking about blowing up industries and micromanaging the economy, far from it. We don't have to go full ...far-left regulatory state. It's just saying we have laws on the books. Why don't we step in and enforce them to protect our constituents?’’
Meador said a lot of talk in antitrust has centered around Big Tech, but antitrust enforcement is coming to other industries, as well.
‘Some people are concerned with how the antitrust enforcement agencies are approaching [Big Tech]. You know, the constant refrain is, okay, it starts at Big Tech, but it's heading to other industries. I don't know if a lot of people listen to that, but that's definitely where it's going,’’ Meador said. ‘‘[W]hether it will gain as much political traction when it's applied to industries remains to be seen, but I think that's definitely coming.’’
Meador cited the banking sector as the low-hanging fruit. “Think of industries like … where you have a concentrated industry and high levels of consumer dissatisfaction,’’ he said about the types of industries where more scrutiny is expected.
Meador played a key role in the DOJ's successful challenge of Visa’s $5.3 billion acquisition of financial-technology company Plaid. The challenge was brought during Trump’s first term and included ideas of entrenchment or ecosystem theories of harm that are arising now and have been criticized by some practitioners as overreaching. His participation in bringing the lawsuit shows that he’s open to advance more novel theories of harm.
The DOJ alleged in the suit that the deal would eliminate a nascent competitive threat to Visa’s monopoly power in online debit transactions. Officials filed the lawsuit using the traditional Section 7 of the Clayton Act to say the deal would substantially lessen competition or tend to create a monopoly, but also under Section 2 of the Sherman Act, alleging that the acquisition constitutes a monopolization of the online debit market.
Meador said the new merger guidelines provide a good approach by setting principles that inform each other and that interact with one another. “I think that's better than creating a more formulaic approach where you feel like you're really boxed in and you can't consider other theories that might come to play,” he said.
Meador was asked for his advice for the next Republican president, and he said “personnel is policy.”
“I think some of the worst mistakes in antitrust enforcement in the last 20 years have been cowardice in the agencies, people ... not bringing the cases they could have, getting ... too worried about losing in court. Obviously, again, we don't want to be wasting resources and just firing off complaints willingly, but it's a temperamental bias thing, right?” Meador said.
“You need people who are willing to ... be thoughtful, but take risks and have a deliberate plan to pursue, to improve enforcement, and obviously it's going to depend on what the next Republican President's views are, but the personnel are really what makes the difference,’’ he said.
— Republicans won’t be a monolith —
In July 2024, Meador authored a blog post for The Federalist Society titled, "Not Enforcing the Robinson-Patman Act is Lawless and Likely Harms Consumers."
"The craziest part of the debate over Robinson-Patman Act enforcement to me has been the number of conservatives arguing that the executive should simply not enforce a validly enacted law because they disagree with the underlying policy," Meador wrote on LinkedIn at the same time.
While enforcers can't simply choose not to enforce a constitutionally enacted law, they do have prosecutorial discretion to choose which cases are the best use of enforcement resources. "A better question is how best to enforce the RPA," he said in the blog post.
Commissioner Andrew Ferguson, who will take over as chair of the FTC after Donald Trump is sworn in as US president, was critical of the Democrats' push this week to bring a Robinson-Patman Act lawsuit. Similarly, fellow Commissioner Melissa Holyoak issued an unprecedented 88-page dissent vocalizing her opposition after the Lina Khan-led Democratic majority voted Thursday to bring a lawsuit against Southern Glazer’s Wine and Spirits for alleged price discrimination (see here).
Meador's views indicate that while the Republican commissioners will collectively be a source of headache for Big Tech, it also shows that the FTC majority will not be a monolith, and some disagreements on critical matters can be expected.
— Antitrust bills —
In 2023, Meador launched his own boutique law firm with partner Brandon Kressin which has since expanded.
Just before that, he spent three years as counsel to the Senate's top Republican on antitrust matters, Mike Lee.
"It is the most fun job I've ever had," Meador said while departing from the role.
Meador is one of the architects of the State Antitrust Enforcement Venue Act, which became law in December 2022 (see here).
The bill, sponsored by his former boss Mike Lee, had bipartisan support and allows state enforcers to prevent their antitrust cases from being transferred to other courts. The bill was responsible for defeating Google's attempt to transfer the venue of a Texas-led multistate AdTech monopoly lawsuit in a case which heads to trial in March 2025.
Meador was also instrumental in drafting the AMERICA Act, or the Advertising Middlemen Endangering Rigorous Internet Competition Accountability Act. Sponsored by Lee and with bipartisan support from antitrust advocates such as Democratic Senator Amy Klobuchar, the bill aims to restore and protect competition in digital advertising by eliminating conflicts of interest that have allowed the leading platforms to manipulate ad auctions and impose monopoly rents.
In 2021, he helped draft the Tougher Enforcement Against Monopolies Act, or TEAM Act, to reform US antitrust laws. The bill also aims to consolidate US antitrust enforcement agencies into a single streamlined agency. The bills didn't become laws in the 118th Congress.
The TEAM Act is similar to another one of Lee's controversial bills — the One Agency Act — which aims to fold the FTC’s antitrust enforcement powers into the Department of Justice. With Republicans now controlling both the House and Senate, there will be support for this bill (see here). Meador was Lee's advisor when it was introduced in November 2020.
When Meador worked on the Hill for Lee, he talked about his job in a podcast. “I felt like it was a dance where you kind of have to keep one foot in. The policy side of things, working on the Hill, and one foot in litigation and the actual practice of law.”
“The skill sets overlap quite a bit,” he told the American Bar Association’s “Our Curious Amalgam” podcast in April 2023.
“A lot of the same sort of tactics and strategy that can be effective when you're negotiating a deal or working on a trial come into play. Navigating the political process, and [to] negotiate a second request, it can be very similar to negotiating with someone from another office who's on the other side of the aisle. The general skills of being able to negotiate and manage relationships are very important,” Meador said.
These skills and his diverse background – as an associate at the law firm Paul Weiss, trial attorney at the DOJ’s antitrust division, attorney at the FTC’s Bureau of Competition, deputy chief counsel for antitrust policy at the US Senate and a partner in a boutique firm – shows Meador’s malleability in various roles that will suit him well in his new job.
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