Vienna Woods Law & Economics

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How the White House’s AI Action Plan Could End Antitrust Overreach – By Asheesh Agarwal — October 13, 2025

How the White House’s AI Action Plan Could End Antitrust Overreach – By Asheesh Agarwal

[This post originally appeared at Truth on the Market on Oct. 8, 2025.]

The AI Action Plan unveiled in July by President Donald Trump could mark a turning point for U.S. antitrust policy. By directing the Federal Trade Commission (FTC) to prioritize innovation, the plan offers a historic opportunity to lift onerous regulatory burdens, restore measured enforcement, and repudiate the overreaches of former FTC Chair Lina Khan’s regime.

To seize this moment, the FTC should pursue an alignment strategy to ensure that its guidance, regulations, and enforcement actions reflect the action plan’s pro-innovation vision, rather than the speculative anti-business theories of the past. In practice, the FTC should:

  1. publicly repudiate Khan-era guidance and affirm the pro-competitive benefits of common business practices;
  2. use its competition-advocacy tools to push states toward pro-innovation laws;
  3. withdraw from its misguided cooperation agreement with European and British regulators; and
  4. reevaluate ongoing litigation to ensure alignment with precedent and the action plan’s principles.

At the same time, the White House should broaden the plan’s reach to include the U.S. Justice Department (DOJ) and all forms of American innovation.

The Biden Administration’s Misaligned Antitrust Agenda

The AI Action Plan repudiates the excesses of the Khan era, when the commission’s antitrust-enforcement agenda was consistently misaligned with the realities of AI markets. At every turn, the FTC sought to manufacture competitive concerns in a sector defined by record investment, rapid innovation, and fierce global competition—especially from China.

For instance, the agency speculated that investments from large technology companies could raise problems related to access to data, talent, or network effects. It declared open-source AI models problematic because, at some future point, companies could choose to close those models. Acting on these views, the FTC launched a sweeping study of AI markets, partnered with European and British regulators to probe U.S. firms, and targeted ordinary transactions such as investments, hiring, or bundling services—often at the urging of anti-tech lawmakers.

The AI Action Plan Aligns with Innovation

By contrast, the AI Action Plan directs the FTC to realign its mission by embracing the private sector’s role in driving innovation. It requires the agency to review all investigations, orders, and decrees to ensure they do not “unduly burden AI innovation.”

To fully embrace the plan’s letter and spirit, the FTC should go even further. It should repudiate Khan–era guidance and publicly affirm the pro-competitive benefits of common business practices. By doing so, the commission would eliminate uncertainty and solidify this vision for U.S. AI leadership.

Acknowledge competition in AI markets

The agency should repudiate its prior statements expressing competitive concerns about AI markets and publicly recognize that these markets are flush with investment and rivalry, primarily among U.S. and Chinese firms.

Moreover, the FTC should publicly acknowledge that many routine practices spur innovation, including hiring top talent; investing in small companies; bundling multiple products; seeking access to data for training purposes and signing exclusive contracts of reasonable length. By publicly acknowledging these market realities, the agency’s leadership could help to assure the private sector that the FTC will no longer seek to manufacture antitrust claims.

new paper, for example, highlights the benefits of mergers and acquisitions to AI innovation. Whereas China uses intellectual-property theft and state industrial policy to advance its technologies, America’s innovation ecosystem relies on the robust flow of private capital to encourage investment, new entry, and patent filings.

Use competition advocacy to promote pro-innovation state policies

In 2025 alone, lawmakers introduced more than 1,000 AI-related regulation bills, with nearly 100 becoming law the prior year. In the absence of a federal AI moratorium, the FTC should advocate for laws that promote innovation and resist overly aggressive state lawsuits, preventing a patchwork of conflicting rules that could hobble growth.

Withdraw from joint agreements with foreign regulators

Under the leadership of Khan and former Assistant U.S. Attorney General Jonathan Kanter, respectively, the FTC and DOJ signed the “Joint Statement on Competition in Generative AI Foundation Models and AI Products” with their European counterparts, echoing ideological claims about the dangers of scale and concentration.

The joint statement repeats numerous fallacies about the dangers of data, scale, and concentration, and gives foreign regulators an excuse to target U.S. firms. The agencies should withdraw and renegotiate an agreement consistent with the AI Action Plan.

Reconsider lawsuits against US tech leaders

The FTC has already dropped its case against Microsoft’s Activision acquisition. Next, it should reevaluate its sweeping suits against Amazon, Meta, and others. No company is above scrutiny, but lawsuits that stretch precedent and ignore market realities could jeopardize U.S. AI leadership at a time when private firms are investing tens of billions of dollars in AI infrastructure.

Since the FTC first brought these suits, markets have changed dramatically, output and innovation have skyrocketed, and new companies—including Chinese competitors—have gained global prominence. The FTC should reconsider whether its law-enforcement actions continue to comport with the AI Action Plan, precedent, and the national interest.

Extending this Alignment Strategy to the DOJ and Other Agencies

Similarly, the White House should expand the AI Action Plan’s alignment strategy to cover all FTC activities, the DOJ, and all forms of innovation. For instance, the DOJ is also pursuing aggressive cases against companies that are investing heavily in AI infrastructure. Should these suits result in breakups or significant constraints on lawful business practices, there are serious questions as to whether the firms or their successors would retain the resources, talent, and capacity to absorb the attendant risks that come with investing heavily in AI infrastructure.

Finally, the plan’s logic should extend beyond AI. No agency should “unduly burden” any form of innovation. Expanding the directive to fields like biotech and quantum computing would send a powerful message: the federal government is united behind a single alignment strategy—ensuring American innovation leads the world and secures U.S. technological dominance for the future.

* Asheesh Agarwal is president of Agarwal Strategies LLC and an advisor to the American Edge Project.  See more about Mr. Agarwal here.

From A to Y: Antitrust Notes from the ABA and Y Combinator – By Asheesh Agarwal — April 23, 2025

From A to Y: Antitrust Notes from the ABA and Y Combinator – By Asheesh Agarwal

[Note: This post originally appeared at Truth on the Market on April 15, 2025]

April 4 marked the end of a notable week in global competition policy. The American Bar Association’s (ABA) Antitrust Section held its annual spring meeting, while Y Combinator hosted a virtual “Little Tech Competition Summit.” At the same time, Congress held two competition hearings, the U.S. Justice Department (DOJ) hosted an event on competition and speech, and senior antitrust enforcers spoke at an event put on by Capitol Forum and FGS Global.

With all the activity, even the staunchest neo-Brandeisian may have come to appreciate the value of occasional event consolidation.

Despite the varying locales and interests, many common areas of agreement appeared to emerge.

Artificial Intelligence

Across the board, many speakers agreed on the benefits of a light-touch approach to artificial intelligence (AI). At the ABA, several panelists noted the Trump administration’s focus on reducing AI’s regulatory constraints, rather than attempting to micromanage AI development, while at other events, Federal Trade Commission (FTC) Chairman Andrew Ferguson stated that existing laws should suffice to police any concerns relating to AI. Still, panelists expressed concern that the states are considering very disparate approaches to AI, some of which could needlessly impede development.

In the same vein, at Y Combinator, speakers criticized former President Joe Biden’s AI safety policy and encouraged Congress to protect people’s property rights—such as in their personally identifiable information and copyrighted material—without creating a burdensome regulatory regime.

There were glimmers of hope from across the pond. While acknowledging that Europe takes a “structural approach” to markets and that the EU’s AI Act prioritizes “product safety” over innovation, several European speakers acknowledged that AI partnerships can promote competition, that competition reviews should conclude expeditiously, and that Europe has failed to identify any genuine competitive problem, or even to define “AI markets” at all. European speakers also acknowledged that Europe needs deep capital markets and praised portions of the Draghi Report, which broadly speaking advocates for a lighter touch approach to competition in Europe.

At the same time, Ferguson sharply criticized Europe for targeting U.S. firms, labeling Europe’s Digital Markets Act (DMA) a tax on American companies.

The Consumer Welfare Standard

Among domestic speakers and attendees, the consumer welfare standard received broad bipartisan support—with one notable exception. During a showcase panel at the ABA, the Progressive Policy Institute’s Diana Moss encouraged the antitrust agencies to return to the consumer welfare standard as the touchstone for antitrust enforcement. Upon hearing these comments, one attendee, Columbia University law professor Tim Wu, an architect of former President Biden’s antitrust agenda, started to boo loudly.

Notwithstanding this jeer, the current administration appears to agree on the standard’s benefits. At Y Combinator, Assistant U.S. Attorney General for Antitrust Gail Slater agreed that the consumer welfare standard represents antitrust’s legal standard, rather than the amorphous concept of “market realities.” She correctly noted that the consumer welfare standard concerns more than just price competition, as it also encompasses competition based on quality, variety, and innovation in new products.

Merger Policy

In another area of consensus, many speakers and attendees applauded the Trump administration’s more grounded approach to mergers, which recognizes that acquisitions can improve efficiency and capital flows. At the ABA, many speakers welcomed the new administration’s openness to settlements and anticipated that the agencies would ground challenges in traditional theories and economic evidence, rather than progressive prognostications.

At other events, Slater expressed an openness to meaningful consent decrees that would resolve competitive concerns about mergers, while Ferguson affirmed that he opposes any ideological biases against M&A activity. Such a practical, traditional enforcement approach should allow pro-competitive deals to move forward, while conserving resources to focus on transactions that raise genuine concerns.

In the hallways, many attendees expressed surprise that the agencies are, for now, keeping the new merger guidelines and Hart-Scott-Rodino reporting form, with hope that the agencies would revisit these documents over time, particularly given the emphasis that both the White House and DOJ have placed on reducing barriers to competition.

The Tech Sector

Finally, the various events also included some areas of agreement regarding the tech sector. Most notably, virtually every domestic speaker endorsed law enforcement, rather than regulation, as the proper approach to the tech sector. Few, if any, speakers called for a return of the various Biden-era legislative proposals that would have imported European regulatory concepts into American antitrust law.

Ferguson, for example, stated that he prefers antitrust enforcement over regulation, as ex-post enforcement produces better economic outcomes. In this regard, both Slater and Ferguson committed to vigorous enforcement of the antitrust laws, including robust enforcement in the technology sector. Slater rightly opposed special treatment for “national champions,” while Ferguson noted that M&A provides “little tech” with needed capital.

For these reasons, Americans should have confidence that, going forward, U.S. competition policy will return to its roots of measured antitrust enforcement, rooted in precedent and economics, based on the welfare of consumers while keeping in mind the global competitive landscape.

Asheesh Agarwal is an advisor to the American Edge Project and an alumnus of both the Department of Justice and Federal Trade Commission.  See his mini-bio on the Contributors page.

As AI Advances, U.S. Must Choose the Path of Regulation or Innovation – By Asheesh Agarwal — March 8, 2025

As AI Advances, U.S. Must Choose the Path of Regulation or Innovation – By Asheesh Agarwal

[Note: This post was originally published by the American Edge Project on March 7, 2025]

As the rise of powerful Chinese AI models, such as DeepSeek’s r1and Alibaba’s Qwen 2.5, have laid bare, U.S. policymakers must choose a pathway for artificial intelligence (AI). One path, littered with regulations and roadblocks, treats AI as a threat to manage rather than an opportunity to nourish. Down the other path, policymakers and the private sector partner together to promote innovation and maintain our global technological leadership.

The Road to Nowhere

As Vice President Vance recently explained to the AI Summit in Paris, “excessive regulation of the AI sector could kill a transformative industry just as it’s taking off.” The European Union’s (EU) AI Act, for instance, prohibits certain AI functions that the EU deems an “unacceptable risk” to citizens. The Act carries enormous fines for noncompliance, up to 35 million euros or seven percent of their global annual revenues. Canada’s Competition Bureau has cited this Act “as a model for Canada,” and even here at home, the Federal Trade Commission’s (FTC) former chair wants to continue the Biden administration’s AI policies, which required companies to pretest models before their release and which used antitrust law to limit AI investments.

The evidence, however, shows that excessive regulations can stifle innovation. Europe’s AI sector lags far behind the United States; from 2023 to 2024, more than $47 billion in investments flowed to U.S. generative AI firms, while European firms raised only $8.8 billion. In a recent letter, 150 European business leaders complained that the AI Act could damage Europe’s long-term competitiveness. Another official worried that American companies were outpacing their European rivals: “I’m not saying it’s good but in America you have a lot of AI and no regulation, in Europe you have no AI and a lot of regulation.”

Here at home, these types of policies would hamstring American innovators and cede leadership to Chinese companies. President Trump has called DeepSeek, an open-source tool developed by a Chinese company using less data and less sophisticated chips that many U.S. models, a “wake-up call” for America’s tech companies. Indeed, the evidence belies the need for heavy-handed regulations. In 2023 alone, nearly 900 new AI companies entered the market and venture capital soared to $67.2 billion, while U.S. AI patent filings surged 621 percent from 2018 to 2022. Earlier this month, large U.S. companies committed to investing hundreds of billions more into AI infrastructure and research.

Moreover, the FTC itself found no competitive problems in the AI sector. In a report issued in the Biden Administration’s waning days, the agency found that “AI technology is rapidly evolving” and that the sector’s evolution will determine whether competitive concerns arise in the future. The agency also found that small companies can benefit from contracts with large tech companies, such as by gaining access to critical training, testing, computing resources and optimized hardware.

The Path to Prosperity

To promote innovation, policymakers should continue to encourage light-touch AI regulation, ground antitrust enforcement in evidence of consumer harm, invest in critical AI inputs such as energy and talent, and collaborate with our allies to counter authoritarian threats.

Beyond these touchstones, the United States should continue to encourage the development and deployment of both open and closed-source AI models, both to promote competition and to safeguard our national security. In terms of competition, the FTC itself has explained that “open-weights models have the potential to drive innovation, reduce costs, increase consumer choice, and generally benefit the public – as has been seen with open-source software,” while Canadian regulators found that the “increasing availability of open-source AI technology and public cloud infrastructure makes AI development more accessible.”

In terms of national security, the United States must provide the world with alternatives to China’s models. For years, China has sought to leverage technology to supplant the United States as the world’s preeminent technological superpower and gain economic and national security superiority over the Western world. China seeks to achieve its goal, in part, by embedding its technology, and therefore its authoritarian values, into the global technological infrastructure, including Huawei’s telecommunications equipment and now DeepSeek’s open-source AI tools. The United States must develop and deploy both open- and closed-source models to ensure democratic principles shape AI’s future. Ceding this ground risks allowing China’s authoritarian vision to define global AI and perhaps to embed Chinese-built models with our allies.

In Paris, the Vice President warned against “paralyzing one of the most promising technologies we have seen in generations.” America has always prioritized innovation over regulation—and when it comes to AI, America should follow the same course.

Asheesh Agarwal is an advisor to the American Edge Project and an alumnus of both the Department of Justice and Federal Trade Commission.  See his mini-bio on the Contributors page.

Our New Space Race – Review by Asheesh Agarwal — July 5, 2023

Our New Space Race – Review by Asheesh Agarwal

[Note: This post originally appeared at Law & Liberty on June 29, 2023]

The current space race extends far beyond Elon Musk, Jeff Bezos, and Richard Branson. There’s a New Zealand tinkerer without a college degree who built a billion-dollar rocket company. A Ukrainian multimillionaire who made his fortune off sketchy dating websites. A soothsaying IT executive who attracted millions in investment through relentless optimism, all while blowing up rocket after rocket.

Ashlee Vance’s latest book, When the Heavens Went on Sale: The Misfits and Geniuses Racing to Put Space Within Reach, is an ode to capitalism, risk, and innovation. As Vance relays, the private sector has created the new rockets and satellites that are spreading the benefits of space commerce across the planet. Though still an important partner, the government lacks the mindset or motive to discard old habits and embrace new technologies. Vance’s book should give pause to anyone who would expunge the profit motive from space, overregulate space or any other tech sector, or rely solely on the government to innovate.

Vance traces the origins of several space companies, starting with the most successful of the new breed, SpaceX. Musk “willed SpaceX into existence” by investing $100 million of his own money and rejecting “the ‘truths’ held evident by the old, government-backed aerospace industry.” Instead, SpaceX created reusable rockets, such as the Falcon 9, that have now launched hundreds of times. Musk’s endeavor was not without risk. After multiple launch failures, Musk “was burning through his personal fortune at an alarming rate” and at one point had to launch his last rocket within eight weeks to survive.

Other companies endured by raising prodigious amounts of money via US capital markets. Rocket Labs had developed smaller rockets that reliably ferry satellites into orbit at a low cost. The company started in New Zealand, of all places, and took off in part because the government was “trying to run a pro-business government and quickly embraced the idea of New Zealand being at the forefront of such exciting technology.” Within a few months, in fact, New Zealand created a pro-market regulatory framework and negotiated bilateral treaties with the United States. Eventually, Rocket Labs set up a second headquarters in Los Angeles to help secure talent and capital. As its founder, Peter Beck, noted, “Goddammit, America gets s— done. There is no other place on Earth where a Kiwi could come into town and walk away with enough money to start a rocket company.”

All this competition is, per the book’s title, putting space within reach. Satellite and launch costs have plummeted. The cost of a satellite has fallen from around a billion dollars to as little as one hundred thousand dollars. With lower launch costs, the number of satellites has doubled (to around 5,000) in the last two years and could rise to 100,000 in the next decade. These new satellites will allow companies to provide new and cheaper services and to provide reliable internet connectivity around the globe. Already, private satellites have detected illegal deforestation in the Amazon, Russian military buildups, and Chinese missile sites. In what Vance calls “the first true Space War,” commercial space companies “gave Ukraine advantages that humbled the Russian military and altered the course of the conflict.”

For many of their employees, these space companies are infused with an almost religious sense of purpose. Musk, famously, argues that humans must become a multi-planet species to survive. Another company’s senior executive, a NASA alumnus, believes himself on a mission from God to spread human intelligence throughout the universe. Planet Labs, which started in an actual garage, pioneered the development of inexpensive shoebox-size satellites; prior to a launch from India, the company bought 88 statues of the Hindu deity Ganesh because it “felt sure that the idols would bring good luck.” These entrepreneurs view access to space “as a noble, necessary quest that would fulfill humankind’s destiny.”

At times, Heavens reads like a novel by Andy Weir, author of The Martian and Project Hail Mary. Enterprising engineers must tackle complex aerospace problems but here in real life, they must keep costs as low as possible. Should they make the rocket’s body of standard aluminum or carbon fiber, which is lighter but harder to shape? Should they use solid or liquid fuel, or some sort of hybrid? How many satellites can one rocket launch at once and how long should the satellites last? Different companies approach these questions with a view toward different customers and price points, but the answers help drive innovation.

These sorts of challenges also help to clarify why the private sector has taken the lead in space. Through numerous interviews with both entrepreneurs and civil servants, Vance explains why the government has been unable to overcome challenges, or to innovate generally, as quickly or successfully as private companies. In three words, mission, mindset, and motive.

One NASA executive, Pete Worden, explained that NASA’s mission is (or was) to provide jobs for the constituents of key members of Congress, rather than to explore space. As Worden put it, “A self-licking ice cream cone serves no other purpose than to keep itself alive.” Pork-barrel politics often led NASA’s congressional minders to kill innovative programs. In one instance, insurgent NASA interns were told to hide a program to send a smartphone into space, just to test how well consumer electronics could operate there, out of concern that NASA brass would bury the program in red tape. In contrast, as a NASA alumnus put it, a private company “can’t raise billions of dollars and spend infinite time” without launching anything.

The government’s mindset also discourages innovation. Perhaps concerned about congressional reprimands, NASA and the Department of Defense developed an ethos that “every rocket and every satellite had to work and they would pay whatever it cost to ensure that happened.” An explosion would lead to hearings, oversight, and adverse publicity. This “zero-defects culture” led to endless testing and a reluctance to try new things, literally making the perfect the enemy of the good. Beck, the New Zealander, “thought that JPL [the Jet Propulsion Laboratory] would have the frenetic buzz of a start-up with some people running around trying to hit their deadlines and others sleeping in the corridors after pulling all-nighters. Instead, he found bureaucracy and malaise.”

This bureaucratic mentality also infused many of the government’s old-school contractors. After talking to a defense contractor, one space executive explained that “I was proposing some ideas. I can still hear [the contractor’s] words: ‘We don’t do anything unless the government tells us to and they pay for it.’” Among the new breed of space companies, on the other hand, the companies and their investors understand that some failures and explosions go with the territory of trying to innovate.

Finally, for the same reasons that capitalism works and collectivism fails, private companies have more of a motive to succeed. This is not to suggest that the excellent employees at NASA or any other agency lack ambition, drive, or skill. Given a clear mission and consistent funding, NASA has done and can do great things. Still, as Vance details, the profit motive, the prospect of a stock option paying off, incentivizes people to work for months on end for little pay, to travel to some desolate island or frozen tundra to try to launch a hunk of metal miles into the atmosphere, to risk their mortgages and sometimes their marriages, with no guarantee of success, for the chance to earn a hefty reward and to say to their friends and family that they helped to build something great and historic.

Different motives may drive those who are already wealthy. As Vance points out, the space billionaires could have spent their entire fortunes buying islands, setting up themselves and their heirs for generations, and enjoying every manner of Epicurean delight. No doubt the quest for personal glory plays a role (apparently, investors love to show off their rockets to friends). Still, these entrepreneurs are risking their reputations and fortunes to pursue a dream that could benefit all mankind. How many of us would choose the same path?

Many observers compare these still early days of the new space race to the early days of the tech boom several decades ago. If so, the new space companies should take a moment to examine how yesterday’s tech darlings are now under siege from regulators at home and abroad. How long before the progressives and anti-capitalists, those who proclaim that “you didn’t build that, somebody else built that,” come for these space companies? How long before the Federal Trade Commission, which has already taken an aggressive stance against aerospace mergers that don’t involve direct competitors, tries to declare SpaceX an illegal monopoly or Planet Labs guilty of unfair competition? Rocket Labs built a home abroad in part because New Zealand’s government welcomed it with open arms—will the United States remain a place where “s— gets done” or become a place where bureaucracy and red tape push companies overseas?

The administrative state presents a significant risk to the growth of the space economy. Regulators “cannot keep pace with the launches or the wills of the people leading the various companies” and competitors are already leaning on regulators to erect barriers to competition. As Vance describes, quoting a space historian, “Back in the day, the United States could spin up an entire missile program and the requisite launch infrastructure in eighteen months. ‘We couldn’t even write the environmental impact study in that amount of time now.’” Rest assured, if the United States hamstrings its space sector, other countries, including India and New Zealand, stand ready to welcome more operations to their shores. And if we truly abandon our leadership in space, there is little doubt that China and Russia will fill the void.

Historians describe an earlier era of exploration as motivated by gold, God, and glory. When scholars write the history of this era of space commerce and exploration, they likely will write that space capitalists led humanity to a brighter future—if we let them.

Asheesh Agarwal is an advisor to the American Edge Project and an alumnus of both the Department of Justice and Federal Trade Commission.  See his mini-bio on the Contributors page.