In Conversation With Gail Slater

Welcome to Cleary Got Leaves Antitrust Review, a podcast focused on antitrust enforcement policy and practice. In an increasingly complex and noisy world, we strive to provide insight, clarity, wisdom and light. My name is Nick Levy and I'll be your host today. My guest today is at a glittering 30 year career in antitrust. She's worked in private practice, has, as you're here, thought a great deal about the origins and objectives of antitrust law and has served in both US antitrust agencies. She practiced competition law for a decade with a leading international law firm in London, Brussels and Washington before joining the FDC where she spent the second decade of her career. In 2018 she left the FDC to advise President Trump on technology during his first administration before working at Fox Corporation and Roku. In 2024 she served as an advisor to JD Vance on economic policy, before being appointed to serve as US Assistant Attorney General Franti Trust in President Trump's second administration, a role she held on to earlier this year. I'm delighted to welcome Gail Slater. I'd like to start at the beginning. How did you get into antitrust law, what attracted you to the field and what keeps you interested today? So I won't be laborate too much because it's quite a chunk of time. But in essence, I am a nerd girl as are many antitrusters, as you know, and that's a global phenomenon. So I'll start with that. You've already mentioned it. So I started my legal career training with Fresh Reels in London back in the day. And of course one of Cleary's competitors, but they had a powerhouse competition law practice back then and they still do today. I worked, you know, as a trainee back then and wrote in rotations through the firm and you did your corporate law scene and you did finance, et cetera, et cetera. I found competition to be the most intellectually stimulating, most fascinating rotation by far to the point where I volunteer to go to Brussels, switch not all the brits wanted to do back then, of course, and spend 18 months there working for John Davies, who I'm sure is someone, you know, big in the antitrust world, a competition law world as it is over there. And found it very, very interesting to be in Brussels in that moment in time. So this is the late 1990s. And it's back then we didn't realize it in the moment, but it was peak globalization. And so we were working on forms, the O's and very much driven by globalization, a lot of US corporations looking to buy into the EU market and so on are just expand globally. And I trust was a big part of that, a big part of enabling that process. And it was a good thing. I mean, it was a good thing for the global economy for for many at that time. And you know, I just came from the ABA antitrust section, a chair showcase where we're not talked about the impact of an I trust on economic policy more broadly and wanted to have a wider conversation about where we fit in economic policy. And we talked a bit about globalization and its importance and the role of antitrust in that. And you know, in the 1990s, it was it was it was a good thing. The S&P grew 300% during the 1990s. Many industries were able to expand and grow very quickly through the process of globalization, not least the internet, which today is, you know, 10% of US GDP and it's you have two trillion dollars worth of commerce. And so and so was very much part of that project or enthusiastic about that project. And then in 2003, first real sent me over to the DC office to work in that office also an antitrust. And I arrived in the US in a moment in time when the US was about to go into the war that the very long war with Iraq. Globalization was impacting the US economy in disparate ways. And you know, the middle of the country, a lot of manufacturing jobs are being lost to China and so on and so forth. And so my views around globalization, my views around antitrust, my views around economic policy started to reform around about them. And then that fast forward to 2015 and the rise of economic populism and so on and so forth. So so that's kind of that's kind of in very broad strokes my relationship with at our trust. It's fascinating. I hadn't realized we'd overlap in Brussels. I too was there in the 90s and remember both that it was an exciting zeitgeist time in Brussels and in antitrust. Also record working with John David. So I always found incredibly generous with his his experience. A great fellow. So, Gail, I know you've thought a great deal about the objectives of antitrust law in researching for this for this interview. I read a truly fascinating address you delivered a year ago to Notre Dame Law School and I commend it to to listeners to students to practitioners in which you set out to present a conservative case for vigorous antitrust enforcement. It's filled with rich, a historical, biblical legal references. You draw on a wide array of sources ranging from Thomas Aquinas to Thomas Moore to John Sherron and Sohab Amare to JD Vance. And in that article you championed what you term America first antitrust. A philosophy that has as its central mission, so you explain the empowerment of forgotten men and women against corporate tyranny. Now for those who aren't familiar with America first antitrust, can you explain it and describe how it differs both from traditional antitrust enforcement of a kind that we had under Republican and democratic presidents until around 2020 and from progressive enforcement of the kind we had under President Biden. So this is this is a whole podcast and it's in itself, Nicholas, but you knew that you knew that already. I knew it. So I'll do my best, but it was for me that speech was about an effort to start a conversation about conservative antitrust versus more libertarian neoliberal antitrust. And I can drill down into that a bit. The construct that I had in mind was something that I talked about actually in the brief sort of five minutes you get a Senate confirmation hearing to introduce yourself and how you see the world. And so the construct I use was this idea of tyranny.com and tyranny.gov. And this is something the kids use online. And so I thought I was being quite worth it using it in front of these United States senators. And Republicans very much so the libertarian part of the Republican coalition have been rightly concerned about tyranny.gov, which is overreach by government into people's lives and encroachment some people's freedom overall. So think about surveillance, overreach and use of force by governments and so on. Because obviously governments haven't been awfully overuse of force. And so that's something that's been a big part of the Republican coalition for quite some time. In the past 40 to 50 decades, Republican economic policy has tilted more towards the neoliberal libertarian mode. And there's been a lot of difference paid to the two large businesses. And that's of course appropriate. I mean, they drive a lot of the economy, they're great American companies and so forth. But there was also a movement to take the foot off the gas. So just be he when it came to antitrust enforcement. And again, I'm not saying it's a bad thing. It's a good thing. But it was something that was a feature of antitrust, I think, for quite some time. And they didn't always get it right. They often got it right. They didn't always get it right. And so what what what what I was talking about in that brief introduction and Senate, but a greater length in the speeches, yes, it's part of the Republican coalition to think about this tyranny.gov, what that means for citizens. But let's also start a conversation about tyranny.com, which is the the abuse of economic power at a highest level. I know that sounds quite lofty, but you have to start somewhere. And so it did spark quite the conversation. I think another person to point to in this regard who's thinking about the world in a similar way as Mark matter, the commissioner about the FTC. And he's he's done a lot of similar thinking. So I would command his speeches, his law review articles and so on. And if you want to find out more about that. And so, you know, that was that was thing number one in the speech. A second point of departure from more traditional, more recent Chicago school, neoliberal, libertarian economic thinking was the business of whether or not the unitrust laws would apply to labor to to to and that's that's a newer thing. That's actually something that's a through line from the first Trump term, Trump 45 through the Biden era in and into today. And so that's that's also very much about sort of the interactions between labor, between individual workers and corporations and so on. And whether anti antitrust has an appropriate role to play there. It's not a fantasy, it's not a cure roll for all economic policy, but I think it's worth having a conversation about whether or not there is a role for antitrust in those markets where traditionally at least for 40 years, it hadn't really been given much thought. There's more to this beach than that, but it's a way of thinking, it's a framework, it's a set of principles that I want to put out there for further discussion, and it's also something that I'm going to bring to the recent announcement that I just made, which is that I will join American Compass, which is what they call a new right thing, Turing, that's also thinking about economic policy in a similar vein beyond that. I trust, of course, and it's looking at labor markets, it's looking at trade, it's looking at the interaction between trade and foreign policy and so on. So that's where I always come in. So, Gail, that's super interesting. I need to explore the relationship between America First Antitrust and the progressive hipster antitrust advanced by Lina Kahn and Jonathan Canter under Biden. And just a little scene setting first, this will be familiar to you and perhaps to others. During the 90s, as you know, there was a sense of divergence often between Europe and the US culminating maybe in a Honeywell in the early 2000s. And then over about 20 years, I think really consensus between the US and the EU, the consumer welfare standard, lack of divergence for the most part. And that began to fracture in the 2020s. Most obviously, I think around digital regulation, which will come to in a second, but also around the break, if you like, that the Biden administration appointees seem to signal. JD Vance, so I know as someone you know well, I indeed, I don't think I've spoken to anyone who knows him as well. As you do, he's a polarizing figure in some ways, but a fascinating one in others was reportedly an admirer of Lina Kahn. And so this is a long way to get to my question is, can you explain how close America First Antitrust is to the progressive enforcement of the Lina Kahn, Jonathan Kanta pursued, and if their differences help us understand what they are? Yeah, that's a great question too. All your questions are good, by the way. I'll just say that going forward. So look the way I visualize it is, and maybe this is helpful for people in Europe in particular too, is we have two horseshoes. So the idea of the horseshoes is you have people on the right and people on the left, and at a certain point they join up and they form the horseshoes. And so we have what I would call a fully-baked horseshoes, and you've just alluded to that, which is sort of neoliberal. This is how we think about antitrust, and it's very much grounded in a consumer welfare standard. And it becomes sort of a glupble thing. It's been a global way of thinking about antitrust. And then we have another horseshoes, and it's not entirely separate from the first one. And it's not as fully-baked as the first one. Obviously it hasn't been around for as long as the other, which is 40, 50 years now of thinking and writing and debating and so on. So the second horseshoes is you have folks on the left, obviously this neobround isians in the con and counter school of thought. And then you have folks on the right, and at a certain point they join up, but that doesn't mean they're the same thing. And I don't want to give you sort of a laundry list of all the points of departure. But I'd say in broad strokes again, the way that the folks on the right of that second horse you see the world, it's very much an enforcement first model. And so obviously at the antitrust division, you didn't have encounters, someone who had willmaking authority, but Leonic Khan did. And she was very invested in willmaking, competition rulemaking and made some like big to bold moves in that direction. They didn't all pan out. And that's not something that this administration has been pushing for at least nowhere near as aggressively as Leonic Khan. So that's like one point of departure. The other point I guess is, and we get work, I think probably going to get into this, but the ways in which both sides of that horse you would look at mergers and merger review. Security from a process standpoint, you know, so one of the things I said very early on at Senate confirmation was unlike the con and the counters of the world. We don't, I don't think see a need to litigate every merger case. And we can negotiate thoughtful settlements. They have to be thoughtful, but we will negotiate settlements. So that's like one point of departure there between the two sides, the two pros of the second horseshoes, so to speak. But it sounds gale that there are differences, but there's a common thread at least as I understand your thesis and Leonic Khan's, which is that antitrust hadn't been serving the forgotten men and women as well as it should. And some disruption was necessary. Yeah, I think that's fair. So let's turn to the consumer welfare standard. As you know, well, there's been a lively debate in recent years as to whether it's too narrow on its own terms or has been applied to narrowly, whether agencies should consider a broader range of harms, broader than just static price effects. You've expressed concern about the importance of maintaining freedom of expression and have argued its legitimate use antitrust cases to challenge viewpoint discrimination. At the same time, you've argued strongly that antitrust law enforcement should adhere to the rule of law and respect binding precedent. So my questions are, is there a tension between these positions? Do you think generally antitrust agencies should stick to their historic lanes? And if it's appropriate to challenge a viewpoint discrimination, does that risk a broader expansion of what antitrust agencies do or expected to do? So, so I think the first building block there, an obvious point to make is the consumer welfare standard is the law and it's the precedent. And so, you know, in the US, we were given these framework statutes and told to go color between the lines and we evolved into the consumer welfare standard, which is not in the statutes, but it is the precedent. And so within that, we have different variables, different dimensions of competition that matter. And so that's within the precedent, you know, there's an innovation to output, to quality competition, to price. One thing that, because I did spend a decent amount of time at an agency and curious if you agree with this or not from a European standpoint, but one thing that I think is safe to say and a point of agreement is that from an agency practice standpoint, so separate from the court precedent and litigated cases. There is a very, very strong difference given only two price effects as a dimension of competition that matters under the consumer welfare standard to the point where, you know, often as a matter of prosecutorial discretion, the antitrust agencies were afraid to or didn't want to bring cases absent. And they're very, very compelling evidence of price effects. Right. And so this is a guess a point of departure from say prior Republican administration, so would demand that sort of exacting standard. I personally thought that's an over read of the consumer welfare standard as even as itself as the precedent stands. So often you would find, you know, economists doing the sort of thing of using an analogy looking for the keys under this time. It's dark. You've lost your car keys and you go to the street lamp to find the car keys, but it doesn't necessarily mean the keys are there. And then you ask an economist at the, you know, the agency, why are you doing this? Why are you doing all of this? So I think what I was saying was there's an openness to looking at the precedent, respecting it as the precedent, but other important ways in which competition can be lost as a result of a merger or unilateral conduct. And so you asked about the speech thing in particular and viewpoint diversity. And maybe if I could grant that an example. So there was a case, it wasn't our case. It was a privately filed case that came before the division with a request for a statement of interest. So a statement of interest is in what the department does. It's the equivalent of Amicus brief in in other for other private plaintiffs. So what the statement of interest does is weigh in on a case and say United States thinks that this is a fair reading of the law. And it can carry a lot of weight in an individual case because it's the United States providing its opinion. So we had a case that came in last summer and involved a group of media companies, including the BBC and some of the large platform companies who had during the pandemic, during 2020, 2021 formed a group called the Trusted News Initiative. Okay, so I'm trying to illustrate by example here for you on the viewpoint diversity issue. And so this group came together, Trusted News Initiative, they took it on themselves collectively, not unilaterally, to content moderate for what they deemed to be co-vitness information. And the impact of that on a number of websites was the equivalent of a whole site take down. And some websites were demonetized. They obviously lost all of their traffic and so on and so forth. These some of these websites came forward, including a group called the Children's Health Initiative. And they filed under Section 1 and said that what had happened, given that this was a group of competitors getting together with the NARGETEC platforms, demonetizing a competitor website that that could be a Section 1 violation. Now we didn't say it was a Section 1 violation, but we weighed in in this SOI, the possibility that it could be and that that case should be allowed to move forward because amongst other things viewpoint diversity matters, immediate plurality matters. So we granted it in the anti-trust laws in Section 1. We said it was potentially a group boycott that economic harm had occurred and the case should be allowed move forward to discovery. And that was something I felt was important. There were a lot of people on the right who felt that during the COVID years and during for other reasons the COVID years politically things had been skewed and and information had disappeared from the internet in a way that was not helpful to to wider political debate. I'm still grappling I guess with one of the core thesis in your Notre Dame speech which is the importance of precedent, importance of law. I understand the consumer welfare standard is not prescribed in law, it's established over time, it's evolved over time. It has as its basic thesis that the objectives of merger control certainly and that's just more broadly, protect consumer welfare and that's most obviously determined by looking at price effect or whether volume may be reduced or whether innovation may be harmed. And I think in New York we've seen a lot of cases over the last decade where there's been a concern about innovation. What worries me slightly is the spread towards reading into consumer welfare, anything that might impact a consumer and using antitrust because it's an established tool that broadly speaking works well as a vehicle to try to advance a whole lot of other objectives that may or may not be worthy or desirable for society but aren't always easy to quantify or to attribute to a particular transaction or particular agreement. And if you load too much on antitrust, I think it risks making its enforcement less predictable, more subjective, more political, potentially more susceptible to political pressure, to political whim. And while I hate the phrase of being kind of a dangerous slide and so forth, that I think some of the concerns about it, so I'll be interested in your reaction to that. No, that's all fair, that's all fair. And I agree with you and I would sort of restate what I said at the top, which is I am much more of the view that consumer welfare standard is the law. And there are, however, in some cases, under enforcement of the law where there's a relentless focus only on prices as a dimension of competition that matters under the standard. So that's much more where I was coming from. And you know, on the going back to the viewpoint diversity, media plurality point, I think what we were saying in that brief is this can move forward, but obviously there has to be an underlying antitrust violation. And here's how we think that could occur. Without the evidence, without all of the discovery being done, it was just to give the court a roadmap as to how to land there, but it was very much grounded in antitrust in section one. So, Gail, thank you. I'd like to turn to your experiences at the FTC and the Department of Justice. As I mentioned in the lead in, you spent a decade at the FTC between 2004 and 2014, seven as a staff attorney, three as an attorney advisor to Commissioner Julie Brill, can you tell us about that experience, how it shaped your views, and how it prepared you for overseeing the hundreds of lawyers and economists at the Department of Justice and Strust Division? So, that another good question. So one thing that I brought to the DOJ from the FTC, as it was back then, things have changed obviously since in the past 10 to 15 years, in very recent years, the past year things have been disrupted at the FTC, but was an appreciation for bipartisanship around antitrust, which matters a lot to the political support for going forward. And that was something that was very much a feature, not a bug of the FTC, because it was by design, by partisan commission. And so that was thing number one that whereas at the antitrust division, it's part of the executive branch, it was a more partisan group of people who ran it. You didn't have two minority commissioners by design. And that's something that I think actually still holds today in Congress. So I went to the Senate thinking I'd get the same split vote that every other nominee got in this administration, except for the Secretary of State, but he was a former senator and there's a tradition that they vote for one another when they come up for confirmation. But what occurred to me coming out of that process was simmer to my days at the FTC. The vote that I got at the end of the day was 78 to 19. And there's this rule of thumb that something's an 80/20 issue, meaning it's a very popular bipartisan issue. That's just something that's applied across the board. And I think that still applies to antitrust. I think that vote reflects that. Things are things, as I said, are revolving at the commission and it's been a lot of change in the past year or so. The other thing that I brought to the antitrust division having been at the FTC was what I like to think was a certain amount of humility when it came to the role and an ability to just let go and to trust the career of Anconvile that they know what they're doing because they do. And there is this concept, as I'm sure you're aware, even from over there that, you know, in at the DOJ there were pockets of what they call the deep state. So the deep state is, again, another construct in it sort of a reference to career civil servants who are there at individual agencies for decades and basically run the country, regardless of who's in charge of top. I don't think there's an antitrust deep state in the US. However, there are very committed career civil servants who stick around from administration to administration. And I think that's in large part because they're very passionate about antitrust and that's something that I learned very, very early on at the division. So that would be thing number two. And then with that comes a certain style that's different from a lot of people who might come in from law firms, who haven't come from staff as they say, who haven't worked their way up through the ranks. And so one thing that I did during my tenure, which surprised some people, was survey the career sections, the career staff to see sort of how their lives could be made easier. And so there were some little fixes like we need more printers because they were doing road depositions and they had to print exhibits. And you need a lot of high-speed printers to get ready for a road deposition. That's something that you learn as a staff attorney. But another thing that I learned from them across the board was that they were facing challenges with subpoena compliance, with discovery. And what they call discovery abuses, I know not everybody at law firms loves that term. And that they would have they welcomed help and support and a spotlight being put on that from the front office, from the top of the organization. And so we put together internally in response to that sort of overwhelming feedback from the career rank and file, a program I call comply with care, which was a team within the front office that was pulling together the ways in which these discovery challenges were slowing down the speed of investigations for the career rank and file. And whether there could be put together a team internally that would look at sort of tackling those issues, head on, up to and including subpoena enforcement before before a judge. And so that's something that I think only someone who's been a staff attorney who's experienced that first hand might bring to the table. So. Yeah, there's so much interesting to talk about there. Yeah, I mean, I'm intrigued, particularly about what you said about the deep state, Steve Bannon, who I'm going to quote again in a second, as you know, believe strongly that the swamp needed to be drained, you spoke about the deep state not having infected antitrust. And I'm just curious as to why you think it didn't. Yeah. So the deep state, it sounds like a very broad idea. The concept mostly applies to like national security. the FBI, CIA, and so on and so forth. Different set of incentives there versus the anti-trust lawyers. Again, they're nerds first. They care deeply about the correct, the right application of anti-trust law. And they also have the discipline of having to go before an article to reach judge to prove every case. It's not just a matter of pure policy. It's not purely at their discretion. And so I think that's probably one important difference. And they're just very grounded in empiricism. They're generally quite objective, very fair lawyers in my experience. I think the same can be said of the rank and file at the FTC, by the way. And in their generally just like good people doing good work. I'll call that one group in particular. Isn't a palette law section within the anti-trust division. I would submit some of the best anti-trust appellate lawyers in the country or in that section. A small but mighty team of lawyers who do sterling work. And in particular in this slew of monopolization cases that have been brought forward in the past five or so years. And I call them lovingly the guardians of the galaxy. And they really like that. They like that term of endearing. So let's turn to your time at the Department of Justice. You came to the role with incredible experience and insights. Ten years at a law firm. Ten years at the FTC. You'd worked with President Trump. You worked with JD Vance. I've been lucky enough to interview a number of agency heads. And I think it's not fully appreciated how hard it is to set a course. I read an interesting profile in Politico that cited comments you reportedly made shortly after your appointment. In which you cited Steve Bannon in calling for action action action. And in a more recent article for regulatory review. You told a story of how you wrote on a whiteboard for your team, your core mission. Which you said was to keep the main thing the main thing. So as you prepared to start work at the DOJ. Did you have a plan? A roadmap of what you wanted to do. How easy is it to set a course? And as you look back, if you had your time again, would you do anything differently? So there's that which you can control and that which you can't control. So this is going into any job, right? Anywhere in any organization. So why would it be any different going into the anti-trust division? So under the bucket of that which you can control, there absolutely was a plan. And again, I go back to the Senate confirmation process because you have to be able to talk through and make commitments to the senator is about what it is you want to do. Circumstances can change, but. And so so when I was talking to them, it was very much about, you know, taking stewardship of the existing docket. There were a lot of cases that had been filed by the Biden administration in particular the section two cases which were very new section two have not been. In force for a couple of decades. And so so so sort of getting my arms around that was obviously a very important task. And then figuring out which cases with move forward and which cases could be settled and so on so forth. And I didn't know at that time because I wasn't in office, but you know certainly made that commitment. And so that was that was sort of the work stream number one. And then work stream number two was when that's settled. And then we would have as a front office the opportunity the time and the commitment to bring forward our own positive agenda. The focus would absolutely be on what I call what the Americans call pocket folk issues so very consumer facing products and with a cost of living focused. And so we're in a time of inflation we're still in a time of basically high inflation. And so how can I trust again it's not the cure all. But how can I trust the role in tackling inflation in keeping markets competitive and keeping a price is lower. So that was kind of thing number two. And then there's also that which you can control right and so that which we couldn't control and I didn't fully understand until I landed in the job on day one. And so the role that doge was playing throughout the federal government in the early days of the administration so early last year. And so doge Department of government efficiency was busy going through all of government operations looking at the ways in which money could be saved and therefore the deficit could be lowered. So it's no secret the US is thirty eight trillion dollars and dad it's an unfathomable number. Thirty six trillion dollars this time last year so we've added to in one year I think that's just interest payments alone. And so it was a very key priority both at the DOJ but also elsewhere in the government that the doge exercise be work through. And so the task despite thinking I got to do lots of fun case work was a lot of doge related work early on. And so that was the responsibility of the front office. And so the balance there for us was to say you know the ways in which and I trust could play a role in doge while defending the operations of the division and the important work that we felt we were doing to the higher up people within DOJ. And a key priority within that exercise was because they were slated for closure was keeping open the three field offices that the division has used to have many more field offices but today the division has field offices in in Chicago and in New York and San Francisco. So so big part of the work early on which we didn't control was defending those field offices and the important work they were doing and some of the some of the reason we were able to move forward to the headline keep them open was because in the Chicago office we were doing and and and starting up setting up a lot of the cost of living work around eggs and then later on beef and so on and so we had a great story to tell. And we were also able to explain the ways in which the antitrust division within the DOJ is not a cost center it's actually profit center because we the division brings in and filing fees and and for future and criminal cases and so on so forth so so that was that was that those were a lot of the early on work strings. In terms of I think part of your question was what what would you do differently try try not to have regrets and in life in general and so and so you know I think I think it's easy to look back and hindsight and say good to shoot a water but in in in the early days it was just it was it was enough to just keep up with the do the doge work and so and so and we did we did keep open those field offices. We did to find our budget in fact we grew the budget and so so so so no regrets on that one. So yeah one of the interesting features of our world particularly in the last few years has been political interest in antitrust enforcement we've seen the UK government give a very clear steer to the CMA to pursue our pro growth agenda commission president Von der Lyon and then the central mission letter to incoming executive vice president to raise a repair encouraging her to an effect embrace the draggy agenda. So how much of a steer did you get or doing coming department of justice antitrust heads or chairs of the FTC get from the White House or the senior figures in government as to what they want you to do. So within the DOJ early on people were so focused on higher priorities not much of a steer the way administration policies communicated in the US is through executive orders through presidential memoranda and so we in the first year received a number of signals through that process so the executive order on live entertainment for example that came out March so this time last year. It was very focused on ticket pricing and a competitive conduct in the live entertainment market and so we took that as a signal it's an executive order signed by the president has moved forward with the live nation section two case which had already been filed and so we went discovery in that case. We had a presidential memoranda merrion on cost of living which was way beyond antitrust obviously but you know we took that to heart and thought well how can we play a role in keeping prices consumer prices down again tackling inflation and so on. And so there were various executive orders that came out during the course of last year and obviously once you see one of them you get to call to action and so you you get to work the meet packers that's another example of an executive order I don't know if you saw that over there but that was November last year again executive order saying to go sort of look at the beef supply chain and the role that the big four beef packers may or may not play from a competition. Standpoint and how they impact ranchers margins and so on so forth so that's it that's an investigation that obviously we stood up. Thanks, Gail. I like to turn to merger control some including most notably the Wall Street Journal which apparently published a critical article. about Lienicarn every 10 days of her tenure at the FTC. So they believe the agencies, as you know, under President Biden, chilled transactional activity, challenge lawful mergers, because of a bias against a big business. Be interested in your view. Do you think the agencies under Biden overstep the mark? And if so, were you intent on a course correction? - I think the view from the bar was that they felt a sense of loss in terms of their relationship with both agencies when it came to merger review. I wasn't a practitioner at that time, so I didn't experience it first term, but I took to heart the feedback, again, going back to the Senate confirmation process, senators raised it, and they had heard from companies in their states about the ways in which they felt like merger review had been suboptimal for them. And so the two things that very early on were implemented in the early stages of the second term were, one, let's reinstate early termination of merger reviews of the HSR rating period. It seems like a small enough thing, but when you add it up, it's actually a very significant thing, and it can mean a lot to deal with, and deal certain things so on. And I think added up to in the first year, the equivalent of about 600 early terminations, and many billions of dollars in commerce that was just sort of given back to the private sector. And I think that's a good thing. Not every merger is an antitrust violation, it just doesn't work that way. We have the notification process we have, but that doesn't mean that every merger is an antitrust violation, so the early termination was a way of like recognizing that. And so that's at the front end of the review process. And at the back end of the review process, this is again another thing that came up as early as the confirmation hearing was, whether you reinstate merger settlements, which was something that the Biden people had not done. And so the decision tree there for companies was quite different than with prior administrations. And I obviously agreed to that in the process and made that commitment upfront. I thought it was an important signal to send. With the caveat that we should do it right, we should have robust merger consent decrees and that are enforceable that have the T's cross and the I started and so on and so forth. And so that was another departure point from the previous four years. - Right, right. I mean, suddenly it seems that you maintain continuity in some respects, the HSR form the merger guidelines, but as you said, you brought back consent decrees, early terminations, you jettish so much of the business critical rhetoric. And for those who are looking at enforcement action, you didn't bring many challenges and we've seen obviously a tremendous spurt in M&A over the last year. So a couple of questions, have we seen effectively a return to traditional pro-business merger control? Is this consistent with the America First Anti-Trust philosophy? And what do you say to those who worry about the role of political lobbying in merger control? - Yeah, so I'll tread reasonably carefully here because it's still pending litigation, but a lot of what you're talking about is rooted in the Huat Packard case and what happened there, because that actually was filed by the Trump people, albeit before I got there. And so it was a fully fledged section seven challenge in this record. It's ended up in obviously a different posture because now it's a very extended, tonnex review in the same district court. And so I can't speak to all of that, but as far as the lobbying piece, 'cause I have been asked about this multiple times, and I do think it's a really important conversation to have. I look under the US system, there is absolutely a first amendment protected right for companies to lobby their government. And that includes the DOJ, and it includes the unotrust division within the DOJ. Tactically in the past, that's been a matter of persuasion, that's been people calling for access, people calling for updates. The kinds of things that some antitrust lawyers do, and they're like, so sometimes they could be a fine line between being a member of the bar and being an antitrust lobbyist. I think because it's very public now, tactically there's been a change in how antitrust lobbying is conducted in very recent times. And I don't personally think that's a good development. And I'll stop there, but if you have a follow-up question, let's. - No, no, no, I just observed that when he's very similar comments from Sarah Codell in the UK, from Theresa O'Barrer, in Brussels both strongly advocating against undue political interference in antitrust. - And I think, can I just add, I think also, I think we're a lot of antitrust and forces that are coming from is that, you know, there can be unforeseen consequences from not grounding antitrust in empiricism, from not grounding it in the facts and the law. It was a big drain on the antitrust division's resources to have a very lengthy extended tonne app review in the Hewlett-Packard case. We could have litigated that case three times over by now. And maybe even one before the district court judge. And so from a practical standpoint, I think that's where a lot of antitrust and forces are coming from. - Truthfully. - Yeah, yeah, yeah. I mean, look, I think we're in a new world, one in which concern about competitiveness feeds into political pressure for antitrust enforcement to take account of industrial policy and other considerations, global scale and so forth. And that in turn makes the process, potentially, one that's less grounded in sound economics and clear principles of law and more open to political pressure points, I'd be interested in how you react to that. - Yeah, no, that's definitely a feature not a bug and it is transatlantic. And you referenced the drug report. I think that was like where it started, a lot of the debate started over in Europe. So, and I've discussed this with some of the European enforcers in including Sarah Cardell. And it is in a time of slow economic growth, it is easy to turn to the antitrust enforcers and say, okay, you need to step up now, you need to do this, you need to do that. And political pressure can go with that, of course. And I understand that impulse. So one way that I suggested and has come out of the US system that where antitrust enforcers globally can play a role is in this business of deregulation of the economy. Some regulations we need, everybody agrees on that around children and health and so on. But there are, I think it's fair to say in every economy in the world, anti-competitive regulations. Some that were put in place for anti-competitive reasons and lobbied for with that in mind. And so an exercise that we went through, jointly with the FTC last year was to survey the economy, invite comment from industry from the public spotlighting anti-competitive regulations across different economic sectors, like healthcare is a great example there. And identifying those regulations, collating them as both antitrust agencies can do. And analyzing them through an antitrust lens, which we're very qualified to do. And then recommending to the White House that some of these regulations really don't serve a good purpose other than for antitrust competitive reasons and that they could be amended, they could be rescinded, et cetera, et cetera. That's a role that I think is very appropriate for antitrust enforcers. And I think it's probably appropriate the world over. And I think the UK may even be looking at doing something like that if they haven't already announced that. And so there's a role, but it can't be to solve all the problems of an economy all at once. I think that's fair. And it's to make antitrust, to make competition enforcers do a lot of the heavy lifting on an economy. Can lead to unforeseen sometimes bad outcomes? - So I couldn't agree with you more. I think I heard about the Spanish authority, Kenny Fernandez told me one of the things they do every year is identify laws or regulations that they thought the government should think about easing. I think Martin in the Netherlands does something similar. And I agree it seems like a really good thing for an antitrust agency to be doing. Now let's turn to monopolization. In your Notre Dame speech, you said we're experiencing the emergence of new durable forms of monopoly power and pledged to protect individual liberty from the bottom. the tyranny of coercive monopoly power. At the same time, many of the largest and most successful US companies are great drivers of innovation and growth and give the US tremendous advantages globally. How should US agencies strike the right balance? So, I think both things can be true at the same time. I think hands down the platform companies are great American companies. They are the great American export of the 21st century. They create $2 trillion in economic activity. They employ millions of people. They're 10% of US GDP. They're very important companies. But I also think it's true that you can apply the unattressed laws to them at the same time. Not to sound too simplistic, Nicholas. And so sometimes people see it as a binary choice. And I just don't know that it's a binary choice. And I think that all economies are best served where you can evidence where you can prove monopolization that the unattressed enforcers can step in to enforce the unattressed laws against those companies. And good things can come from that. Again, I'll go back to the recent experience of the chair showcase at the ADA to give you examples of what I mean by that. Because the unattressed distribution stepped in and enforced section 2 against mobbell back in the 80s and they broke up mobbell and the babybells emerged from that. A lot of people say there's a through line from that action to the birth of the wireless industry in the US. Again, huge chunk of the economy, very important innovation. Another thing that came out of the mobbell breakup was, it's, and I think this has been pretty well documented because the bell labs where a lot of innovation was done and basic research was done was also broken up. A lot of innovations that had been essentially smothered by mobbell were unleashed onto the economy, including the internet modem or a very early version of the internet modem. So I think if that hadn't happened at that moment in time because of the breakup, I'm not saying we'd never have seen the internet, of course. Eventually something would have happened to the internet and there was research being done at ARPA and so on. That would have resulted in the internet, but that was a core building block of the early internet was the internet modem that came out of the DOJs enforcing of section 2. And so I think both these things can be true. I think that, you know, I don't trust how to role to play in the 1980s, it still has a role to play today and that these companies are great American companies. Both things can be true. Certainly can. You mentioned case enforcement, as you know, there's been a lot of case enforcement with respect to tech, but you know too that the US courts have been broadly reluctant to order the kind of wide ranging remedies that you and the FTC have argued for. You've been critical though of regulation of a kind we have in Europe and elsewhere, describing antichusters as scalpel and regulation as a sledgehammer. I've been interested to know why you're so critical of regulation even when it achieves outcomes that you favor potentially faster than might otherwise have been possible. And do you worry that conventional and stressed enforcement is too slow to uncertain to keep pace with digital markets? So another very, very, very fair question. So my, the comparison there between antichrust and regulation is, again, it's on certain premises. I think in many ways antichrust is fairer because it goes after conduct and you have to prove the conduct and you have to prove the harm and you have to do that exposed against one company. It's the scalpel for that reason. Exantory regulation can go after whole sectors of the economy once regardless of conduct, regardless of proof of harm, economic impact. And so all things equal. I'm more for antichrust and for regulation for those reasons. I do have some sympathy though and I'm freer to say this now for the reasons as at least as I understand them as I've been given them by people in Brussels for the DMA. And it eludes to your question which is, you know, we did the DMA thing because antichrust is too slow, it's too cumbersome. By the time antichrust has caught up with conduct in the marketplace, the technology has moved on. And so we, we, we Brussels EU Commission felt that we had to do the exantay thing or the exantay thing and do regulation rather than exposed for those reasons. And so there's, there's an argument to be made there. Thank you very much, Gail. Turning to a totally different subject, heads of agencies over the last 10 years have become kind of rock stars in some ways and they have a role to play in communicating their work to the public throughout your career. You've worked on cases where the stakes for everyday people have been high, patients paying high drug prices, consumers losing grocery competition, farmers facing concentrated supply chains. And yet as you know, the legal economic analysis behind these outcomes can be difficult for the public to follow and address sometimes struggles with questions of public understanding and legitimacy. So I'm interested in the guidance you give to practitioners, enforcements, academics on communicating and to trust effectively to the public. So I, I'm not a rock star, but I, I hear what you're saying. And I think, I think your question goes back to two things we've already discussed, right? So I think there's, there, it's incumbent on the, and I trust are on the nerds like us to better communicate what it is we do and it's salience to the rest of society and to the economy more broadly. I think we could do a better job there. And I say that with the deepest of respect and love for the NITRA spark, which I'm a member, I call it the cathedral. We are very proud technocrats and we live in this beautiful cathedral and we have a tendency to sometimes overly complicate how we talk about NITRA and we can lose the audience by doing that. And the audience is consumers in general, but it's also other important decision makers in the US system, obviously the White House, other parts of USG, capital hell and so on. And so I think, I think, I think we could do a better job simplifying life for ourselves and defending what it is we do if, if we were to simplify how we communicate about it. And that's a long term project and it's something that I've raised with numerous people in the recent past and in some very recent discussions. And I say that because I think that in this moment of what you've described as politicization, we really need to do a good job debating in this moment of politicization what it is that NITRA does and why it matters and why competition matters to our free market economy system. And so I think that answers your question, but I think there's also a call to action in there. So action, action, action. I think there is a project for the bar, for stakeholders in NITRA to get to work more effectively communicating it. One small, one small step that I took was to do a once a week sort of three minute video. And it was a simple thing. When we had an enforcement decision and enforcement action, when a court opinion got handed down, when we were going into court, I would do a three minute video in once a week explaining what we were doing, why we were doing it and why it mattered to the average American. And I will say it was to my surprise and delight and one of the most popular things that I did. And it was three minutes once a week. So there's an audience there for NITRA. So we just need to get to work and connect with it. Yeah, no, I totally agree with that girl. I think I think my great of a style was very good. She had this notion of fairness that the bar was rather critical of when she introduced it, but stuck and she stuck with it. And I think that spoke to a lot of people. One can agree or disagree whether an antitrust law enforcement should be fair or not, but it was something people could understand. It reminds me to the CMA had an event to celebrate its 10th anniversary and one of the members of the board, who's a non-executive director, when asked what he would like people to think of the CMA in 10 years time. He said he'd like people to think the CMA had their backs. And I think that kind of simple communication can be very effective, particularly if you can point to examples in which an agency has had your back. My final question, Gail, before the quick part questions, we're now into the second year of President Trump's second presidency. What do we expect over the next three years from this administration in antitrust? So I think there's a couple of things there. One is I sincerely hope that the agencies continue with the pocketbook issues. They continue with focusing on the average Americans monthly expenditure. I circulated a pie chart to our front office at a certain point and it was the breakdown of what that expenditure looks like. So you spend 14% of your monthly income on your health care. You spend 15% on groceries, 10% on transportation, so on. Like let's be relentlessly focused on that because that is what matters to most Americans and and you know affordability is the word that they use over here. So I hope I hope I hope there is a continuation of that Since I left I did see so a couple of cases that we had spun up in the hospital sector, the health care sector around this business of steering and insurance policies and so on and they were filed and so that's that to me that's a good sign The second thing that I would say is I think we can expect to see further centralization of decision-making around the White House which is new to a lot of anti-trustors in the U.S And I think it it pivots on this idea of what conservative lawyers have for a long time call this Unitary Executive Theory of governance, which is you know executive power resides within the president it emanates from him And then from that flows sort of more centralized decision-making So I think we we can expect to see more of that and more direction in the form of executive orders, but just also just direction Informal direction beyond that Gail, thanks so much. We're almost out of time at a few quick fire questions I usually ask people they're proud of achievement the greatest regrets you and I we don't do regrets So you're proud as to achievement It is becoming the assistant attorney general for our trust Second question what advice would you give your successor? I would say Remember that in the role We're just we're just stewards we're just stewards of this project this division and it's our responsibility as best we can to hand it off in better shape than we inherited it always We don't own it So question what's next for girls later? So I have I have I have projects that I won't bore you with but sort of in broad strokes So the big projects are I just already mentioned this earlier on joined a group called American Compass So this is a group of big brains big brains. I've done them down considerably That are thinking about you know economics from a new right standpoint And they're very innovator at their core focus is labor issues And on trade and so forth, but they've they're growing outwards from there and so my role is to help them think about technology and competition policy And so I'm just starting into that another project and this is Where I'd like you know to join issue with folks in Europe is The the relationship the transatlantic relationships in a different posture. It's in a new posture for a lot of people and on anotrust For all the reasons I would like to be a bridge I'd like to be a transatlantic bridge And I think there are it's very important to have whether they're quiet conversations whether it's talking to people over there like we're doing now You can now you can be an effective bridge a useful bridge You can help close the gap and misunderstandings between the systems by talking you have to start somewhere And so that's that's something else that I I'd very much like to do and I've had some invitations to go over and speak in different pour over there That's a super welcoming thing to hear From you so thank you for that two more quick questions. Where are you most likely to be found when you're not working? Uh in my kitchen But what one activity I was good because you you mentioned this earlier one activity I was going to highlight was It my favorite podcast is is the rest of history And I don't know how familiar you are but you are bread and so so the rest of history is two two brits both historians Very different expertise, but they have a delightful combination with one another Tom Holland Dominic Samborn and it's just by far in a way that the sambrook sambrook I'm sorry the best the best podcast and the most fun and and joyful thing that that I have found to listen to It got me through the pandemic put it that way I was lucky enough to sit next to our Dominic Sambrook the other day and he's a wonderful wonderful man. Oh lucky you lucky you yeah He sounds like great fun. Oh he's great fun. He does all his preparation and yeah, yeah, yeah, it's off-jake Yeah, he gets on so well with Tom Holland. It's really it's really it's joyful Yeah, and you learned a lot you learned a lot just listening to them. Oh, yeah, the series on the American Civil War for example Absolutely, that's stating I knew saying it It's it's not taught much in English schools as you might imagine yeah And my my sons my sons who were very American have learned so much listening to them in the car where they don't have a choice Okay It's my second favorite podcast and finally I should have said that of course And finally is there one thing you can tell us about yourself that's not widely known Wow, so I've been I've been through a round of publicity that I wouldn't I wouldn't want anyone else to go through So there's a lot that's known about me and then in contrast to that I I'm a born introvert and so So that's not widely known because part of obviously these jobs is to be public-facing To be out there to be giving speeches and as an introvert that's actually quite hard But but it's it's part of the role. It's part of the responsibility and the duty and so obviously I did it I did it um with joy But that's that's something that um is not widely understood about me And it's it's for introverts doing something like this is actually quite tiring I may have to go and take an app after this for extraverts It's what they live to do You and me both gay and I can't tell you what a pleasure it's been I watch your career with real admiration. I truly enjoy preparing for the pod I was thrilled when you accepted and I'm enjoyed the past hour And a huge amount as a fellow introvert fellow nerd But it's been it's been wonderful. So thank you so much Likewise, thank you. It was great great to talk to you So thank you, Gail. It's been terrific. I'm Nick Levy the host to the Anstrasse review and look forward to welcome you to the next edition of the pod