The Corner Newsletter: Kanter departs, RPA Returns, and Trump’s First Big Challenge from China (December 20, 2024)
Welcome to The Corner. In this issue, we celebrate AAG Kanter’s record and the FTC’s restoration of the Robinson-Patman Antitrust law. We also explore how China is using its dominance of key minerals to challenge President-elect Trump’s policies even before he takes office.
Jonathan Kanter Leaves Greatest Antitrust Legacy in DOJ History
Over the last 135 years, many antitrust heroes have worked in the U.S. Department of Justice. None served the American people better than Assistant Attorney General Jonathan Kanter, who resigned this week. In barely three years in office, Kanter began to rebuild the digital economy on a democratic footing, with a victory over Google’s search monopoly, and a far-reaching case against Google’s control of online advertising. He blocked an attempt to monopolize the U.S. marketplace for books, protected America’s music lovers from theft and manipulation, and filed lawsuits against monopolists who gouge people struggling to feed and house their children and keep their families healthy. Kanter forced the department to focus — for the first time — on supply chain chokepoints, and worked with the U.S. Trade Representative Katherine Tai to bring trade and antitrust policy in smart alignment. Along with FTC Chair Khan, he rewrote the merger guidelines to eliminate Reagan-era pro-monopoly thinking and to ensure the law focuses always ultimately on human liberty and democracy. To learn more, read Kanter’s farewell speech. All of us look forward to working with Jonathan in the fights to come.
The FTC’s Revolutionary Restoration of Robinson-Patman Antitrust Law
Last week the Federal Trade Commission filed the first government lawsuit in decades based on the Robinson-Patman Antitrust statute. The case targets the nation’s largest alcohol distributor, Southern Glazer’s Wine and Spirits, for forcing “mom-and-pop” businesses to pay more than larger chains. The law, passed by Congress in 1936, requires dominant sellers and buyers to provide the same service at the same terms to all companies — no matter their size. For most of the 20th century RPA served as one of the most important foundations for U.S. democracy and prosperity, by preventing powerful actors from crushing innovative upstarts and independent businesses. But enforcement agencies largely abandoned the law after President Reagan imposed the pro-monopoly “Chicago School” ideology on antitrust enforcement in the early 1980s.
The victory was especially gratifying for our Open Markets team. OMI launched efforts to restore RPA in 2006, and has pioneered the fight ever since. Key moments in OMI’s campaign include:
+ “Breaking the Chain: The Antitrust Case Against Walmart,” Harper’s, July 2006
+ “Cornered: The New Monopoly Capitalism and the Economics of Destruction,” 2010
+ “Goliath: The 100-Year War Between Monopoly Power and Democracy;” 2019;
+ “Everyday High Prices,” Washington Monthly, January 2023;
+ “Controlling Buyer and Seller Power: Reviving Enforcement of the Robinson-Patman,” December 2023;
+ “The Robinson-Patman Act as a Fair Competition Measure,” February 2024.
+ And see OMI’s statement on the FTC’s case here.
Incoming Trump Administration Must Address China’s Monopolization of Minerals
Audrey Stienon
Earlier this month, the Chinese government banned exports to the U.S. of four minerals (gallium, germanium, graphite, and antimony) that they claim have a dual military and civilian use, and for the first time prohibited foreign companies from passing restricted minerals acquired in China on to American companies.
This is only the latest example of China using its near-total control over the mining and refining of many critical minerals as a form of geopolitical leverage during diplomatic and territorial disputes. The minerals are essential to the production of batteries, semiconductors, and a host of other advanced products and weapons.
The export ban should serve as a warning to the incoming Trump administration that critical mineral and battery supply chains will be among the most fiercely disputed battlegrounds in the ongoing trade war with China. One of the first challenges Trump will face in his second term will therefore be to reconcile the contradictions between three of his signature policy positions: his desire to end American dependence on China for critical goods and technologies; his hostility towards projects designed to address climate change; and his plans to use higher tariffs to help pay for basic government operations.
The world is dangerously dependent on China to develop the technologies integral to advanced manufacturing and the green transition. For instance, China controls over 70 percent of lithium-ion batteries used in electric vehicles among other applications and 90 percent of refined critical minerals.
China’s dominance of critical minerals supply chains is no accident. The Chinese government long recognized dependence on foreign economies as a geopolitical risk, especially for sectors like energy or raw materials that underpin the rest of the economy. They therefore spent the last two decades encouraging Chinese mining companies to gain the rights to extract minerals from deposits located around the world, and to ship them to Chinese refineries. Meanwhile, the Chinese government subsidized the country’s domestic capabilities not only in mining and refining, but across the full green supply chain and for advanced manufacturing. Together, these policies ensured that Chinese minerals suppliers had a steady source of demand from domestic manufacturers, who in turn had a competitive advantage over foreign competitors given their access to cheap battery and mineral inputs.
China’s increased willingness to weaponize their control over the mining and refining links in strategic supply chains has prompted a number of governments — including in Australia, Japan, and the European Union — to start building alternative sources of supply.
In the United States, the Biden administration moved especially aggressively to lay the foundations for alternative battery and electronics supply chains that are less dependent on Chinese refineries and factories. The Biden administration increased demand for batteries and battery inputs produced outside of China through the Inflation Reduction Act (IRA) by subsidizing sales of EVs whose components were made in the U.S. or approved trade partners. The IRA also included tax credits for battery components and critical minerals produced in the U.S.
The administration also started working with countries through the Minerals Security Partnership (MSP) to coordinate allies’ efforts, including debt financing and loan guarantees, to increase the reliability and sustainability of their minerals supply. Nevertheless, it takes years to negotiate new types of agreements, open new mines, and build new refining capacity, so many of these projects are not yet online.
The incoming Trump administration, by contrast, appears intent on turning the Biden strategy squarely on its head. Rather than encouraging battery production by subsidizing EV demand (the incoming administration has promised to suspend all incentives for Americans to buy battery-powered cars), the transition team is proposing to support the mining and battery facilities at the other end of the supply chain through a mix of deregulation, subsidies, and tariff protections from Chinese competition.
Thus far, there appears to be no plans to replicate the MSP’s efforts to help other countries to mine or refine the minerals that are not found in the U.S., or encourage them to voluntarily sell raw materials to America’s nascent facilities rather than China’s readily available manufacturers.
It is a good sign that Trump claims to have recognized the national security implications of ceding the advantage in critical mineral and battery production to the Chinese. It is conceivable that the new administration’s tariff plans could force trade partners into opening their markets to U.S.-made EVs and batteries, substituting for the drop in domestic demand. But his team’s strategy appears so focused on the narrow slice of the minerals and battery supply chains that exist in the U.S. that it misses how this industry is, by its geologic nature, inherently global and thus collaborative.
Should Trump fail to square the circle of his own policy promises, he will find himself responsible for ceding the advantage to China in one of the most critical industries of the global economy.
📝 WHAT WE'VE BEEN UP TO:
Following advocacy by Open Markets, the FTC modified a 12-year-old consent order that previously prohibited independent pharmacies in Puerto Rico from collectively bargaining with pharmacy benefit managers and insurers to allow the pharmacies to negotiate collectively to counter dominant market forces. The pharmacist group filed a petition in August to revise the consent order, which the Open Markets Institute supported in a subsequent comment letter. In revising the order, FTC Chair Lina Khan cited a law review article authored by Open Markets Legal Director Sandeep Vaheesan.
Open Markets Executive Director Barry Lynn spoke at the Grand Continent Summit in Val D’Aosta, Italy, on the threats to European democracy posed by the U.S.-based corporations that have monopolized online communications. He also spoke of the threats posed by Europe’s lack of coherent plan to protect its industrial based from Chinese competition. Other speakers included Europe’s former High Representative Josep Borrell; MEP Brando Benifei; former WTO head Pascal Lamy; Spain’s Economy Minister Carlos Cuerpo; and Financial Times columnist Rana Foroohar.
Lynn also spoke at the Athens Roundtable meeting on AI at the OECD in Paris, on the political and economic threats posed by the concentration of control over AI. Other speakers included Anthropic co-founder Jack Clark; Elizabeth Kelly, the director of the US AI Safety Institute at NIST; MEP Axel Voss; and Paul Nemitz of DG Justice.
Open Markets Institute policy director Phillip Longman wrote in the Washington Monthly about how the magazine published the work of FTC Chair Lina Khan early in her career, giving her a platform for impactful journalism that challenged corporate monopolies and neoliberal policies. Longman elaborates on how Khan’s work exposed issues like airline deregulation and monopolistic practices in agriculture, laying the foundation for her influential role in reshaping U.S. antitrust policy.
Center for Journalism & Liberty director Courtney Radsch and senior reporter Karina Montoya were featured in the Nieman Lab series Predictions for Journalism 2025. Dr. Radsch discussed how local media will experiment with new content licensing models in the emerging AI data marketplaces in the coming year. Montoya anticipated antitrust issues will intersect with AI more widely, shining a light on how AI affects labor rights and climate as well as news media.
Open Markets food program manager Claire Kelloway commended the efforts of the Federal Trade Commission (FTC) and state attorneys general from Oregon and Washington for securing preliminary injunctions to block the proposed merger between Kroger and Albertsons. The FTC and the attorneys general “deserve credit for their bold, uncompromising challenges to stop this deal outright and to reject the companies’ weak offer to just sell off stores,” Kelloway said. Open Markets Institute has opposed the merger in The American Prospect, ProMarket, Food & Power, and elsewhere.
In an episode of Pitchfork Economics, OMI’s legal director Sandeep Vaheesan and chief economist Brian Callaci argue how relying solely on market solutions won't solve the U.S. housing crisis. They emphasize that instead there is a need for stronger government intervention, including rent control, tenant protections, and strong antitrust enforcement.
Journal of Political Inquiry quoted Open Markets Europe director Max von Thun commenting that a second Trump presidency may oppose Europe’s attempts to regulate Big Tech even more vigorously than the first Trump administration. During Trump‘s first administration,” von Thun said, “there was this feeling that if the EU went too far, there would be a backlash from the U.S.”
OMI executive director Barry Lynn spoke with Oles Andriychuk from the Digital Markets Research Hub to discuss the evolution of U.S. antitrust law, its current challenges, and the regulation of digital markets. Lynn highlights the crossover between competition policy with industrial strategy and warns of the risks posed by authoritarian regimes exploiting digital technologies.
Investigate Midwest quoted Open Markets food program manager Claire Kelloway on consolidation in the agricultural sector. She argued that strong enforcement of the Packers and Stockyards Act is the best way to fight corporate power. "There's various levels of exclusive dealing, commercial bribery, predatory marketing practices and advantages that large companies have," Kelloway said.
Kelloway also spoke to KFEQ-AM on the antitrust and price collusion allegations faced by Tyson Foods, saying, “The industry needs a lot of sunlight and scrutiny. Hopefully, the reforms and rulemaking keep coming until these antitrust laws are being enforced as intended.”
The Open Markets Institute decried the European Commission’s decision not to intervene in Nvidia’s acquisition of Run:ai, saying, “We view this transaction as a means for Nvidia to reinforce its dominant position in the supply of advanced GPUs by integrating Run:ai software to build an additional barrier around its chip empire.” Last week, Open Markets and eight allied organizations submitted a letter urging the Commission to investigate the deal, citing concerns that it would entrench Nvidia’s monopoly over graphic processing units and AI, creating unfair advantages through software bundling and threaten European AI competition. Read the letter here. Read of the Commission’s approval of the deal here.
🔊 ANTI-MONOPOLY RISING:
The Federal Trade Commission finalized a rule requiring ticketing corporations for live events and short-term lodging rental corporations to provide the full price of their products to consumers on the front-end, instead of forcing customers to pay added junk fees once they complete their booking. (NBC News)
Ireland’s privacy watchdog the Data Protection Commission fined Facebook over $250 million over breaches to the EU General Data Protection Regulation going back to 2017. (Euractiv)
Antitrust regulators in Mexico are proposing harsh restrictions and a nearly $5 million fine on Walmart for using its market power to coerce suppliers into agreements that restricted their pricing flexibility with other retailers. (Associated Press)
📈 VITAL STAT:
More than 20
The number of price-comparison websites in Europe who criticized Google's proposed changes to its search results, saying they still fail to comply with the EU’s Digital Markets Act. Google has been in discussion with the comparison sites, hotels, airlines, restaurants and retailers for more than a year now on how to comply with the DMA, which prohibits it from favoring its products and services on its platform. (Reuters)
📚 WHAT WE'RE READING:
The Nvidia Way: Jensen Huang and the Making of a Tech Giant — Barron’s senior writer Tae Kim provides an in-depth history of the GPU monopolist Nvidia, from the corporation’s days as a plucky startup in the early 1990s to its rise to global dominance following the artificial intelligence boom. While notably uncritical at times, Kim’s account provides a stunning record of the market failures and cutthroat tactics that allowed the corporation, which now finds itself under intense regulatory scrutiny, to corner the processor market and ride that control to the world’s largest market value.
Order Sandeep Vaheesan’s book:
Sandeep Vaheesan, the legal director at the Open Markets Institute, published his first book Democracy in Power: A History of Electrification in the United States, in which he examines the history—and presents a possible future—of the people of the United States wresting control of the power sector from Wall Street, including through institutions like the Tennessee Valley Authority and rural electric cooperatives.