— Essay · Published May 2026 · 10 min read
The Industries That Don't Compete
Across the contemporary American economy, the dominant structural feature is concentration. Four airlines control approximately eighty percent of domestic flights. Three cell carriers control approximately ninety-eight percent of wireless service. Four meatpackers control approximately eighty percent of beef processing. Five tech platforms dominate the digital services population in increasingly all categories. Two-to-three firms dominate essentially every consumer-facing industry. The antitrust framework that historically prevented this was substantially weakened by the Reagan-era reframing of antitrust around the "consumer welfare standard" articulated by Robert Bork. The recent revisionist movement led by Lina Khan and Tim Wu represented the first serious attempt to restore the structural framework. The attempt has been substantially constrained. The structural concentration that the previous essays in this series have repeatedly identified — in housing, healthcare, education, technology, finance — operates against the absence of the antitrust framework that historically constrained it.
The Settlement That Was Built and Dismantled
The Sherman Antitrust Act of 1890, sponsored by Senator John Sherman of Ohio and signed by President Benjamin Harrison on July 2 of that year, established the foundational federal framework for American antitrust law.1 The Act, passed in response to the late-nineteenth-century industrial-trust consolidations (Standard Oil, the broader Rockefeller, Carnegie, and Morgan combinations) that had concentrated American industrial production in the hands of a small number of operators, established two principal substantive prohibitions: Section 1 prohibits “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States”; Section 2 prohibits monopolization, attempted monopolization, and combination or conspiracy to monopolize.
The Sherman Act’s enforcement across the early twentieth century produced the principal antitrust victories that established the operational framework. Standard Oil Co. of New Jersey v. United States (1911) ordered the breakup of Standard Oil into thirty-four constituent companies; American Tobacco Co. v. United States (1911) ordered the breakup of the American Tobacco Company.2 The Clayton Act of 1914 strengthened the Sherman Act framework by prohibiting specific anticompetitive practices (price discrimination, exclusive dealing, tying arrangements, and importantly, mergers that would substantially lessen competition); the Federal Trade Commission Act of 1914 established the Federal Trade Commission as the principal federal antitrust enforcement agency alongside the Department of Justice’s Antitrust Division.3 The framework operated, with substantial bipartisan support and substantial enforcement intensity, across approximately the 1911-1980 period.
The framework’s principal subsequent operational expressions included the 1948 United States v. Paramount Pictures decision that broke up the vertical integration of the Hollywood studio system, the 1956 AT&T consent decree that constrained Bell System operations, the 1969 United States v. IBM litigation that constrained IBM’s mainframe market dominance for over a decade before being dropped in 1982, and the 1974 antitrust lawsuit against AT&T that produced the 1982 consent decree breaking up Bell System into the seven Regional Bell Operating Companies.4 The cumulative effect of the 1911-1982 enforcement was the substantial constraint on American industrial concentration that the post-1980 period has substantially relaxed.
The structural reorientation of American antitrust began with the 1978 publication of Robert Bork’s The Antitrust Paradox, which argued that the Sherman Act and its successor statutes should be interpreted as solely addressing consumer-welfare harms operationalized as price effects, rather than the broader structural concerns about market power, supplier-and-employee bargaining position, political influence, and democratic governance that the framework had historically addressed.5 The Bork framework, which became operational doctrine within the Reagan administration’s Justice Department under Antitrust Division head William Baxter and which has been the principal operational framework of American antitrust enforcement across the post-1981 period, substantially constrained antitrust enforcement by requiring plaintiffs to demonstrate specific consumer-price harm rather than the broader structural-market-power concerns that the historical framework had addressed.
The empirical effect of the Bork-framework operationalization across the post-1981 period has been the substantial reduction of antitrust enforcement intensity, the substantial expansion of mergers permitted under the framework, and the substantial concentration of American industries that the contemporary period exhibits.6 The framework’s structural assumption — that consumer-welfare harms operationalized as price effects are the principal harms that antitrust enforcement should address — has produced the operational outcome that mergers producing substantial structural market power are routinely permitted so long as the parties can demonstrate (often through internal-documentation projections) that consumer prices will not rise as a direct result. The broader structural harms — supplier and worker bargaining-position effects, innovation effects, political-influence effects, broader democratic-governance concerns — are, on the operational framework, substantially excluded from the analytical framework that drives enforcement decisions.
The Concentration the Series Has Documented
The previous essays in this series have, in operational terms, documented the empirical record of the post-1981 concentration in specific sectoral contexts. The pattern is the empirical record on which the broader antitrust diagnosis would operate.
The Great AI Implosion documented the concentration of American AI infrastructure into the small number of hyperscaler firms (Microsoft, Google, Amazon, Meta) whose capacity is the operational structural foundation of the contemporary AI industry.7 The hyperscaler concentration, which has emerged across the post-2010 period through the combination of organic growth and acquisition activity, has produced the structural feature that essentially all contemporary AI development depends on the infrastructure that the hyperscalers operate. The recent AI-developer-acquisition pattern — OpenAI’s effective integration with Microsoft, Anthropic’s substantial Amazon and Google partnership, the broader pattern of hyperscaler investment and partial ownership in the principal AI-developer firms — is the contemporary operational expression of the concentration that the AI industry’s structural features have produced.
The Quiet Foreclosure documented the concentration of American single-family residential ownership into the small number of institutional owners (Invitation Homes, Progress Residential, American Homes 4 Rent, Tricon, Amherst).8 The institutional concentration, which has emerged across the post-2008 period through the conversion of distressed-asset acquisition into a permanent asset class, has produced the structural feature that a substantial and growing portion of American single-family residential is held by a small number of institutional owners whose pricing and operational practices the contemporary regulatory framework substantially does not constrain.
The Accidental System documented the concentration of American hospital systems and pharmaceutical manufacturers into the small number of consolidated operators whose pricing the fragmented buyer side cannot constrain.9 The hospital-system concentration, which has emerged across the post-1990 period through the combination of mergers and the broader market dynamics that have favored larger institutions, has produced the operational outcome that approximately three-quarters of American metropolitan statistical areas are served by hospital markets that the antitrust framework’s structural concentration thresholds would, in any seriously enforced framework, identify as anticompetitive.10
The Donor Class documented the concentration of American media into the small number of operators whose news and information products substantially shape the political-information environment.11 The media concentration, which has emerged across the post-1996 Telecommunications Act period through the substantial relaxation of media-ownership restrictions, has produced the operational outcome that essentially all major American news organizations are owned by a small number of corporate parents.
The cross-sectoral pattern is the empirical record that the antitrust framework would address. The concentration is not principally a function of any specific sector’s natural-monopoly characteristics; it is the operational outcome of the post-1981 enforcement framework’s substantial relaxation of the structural-concentration constraints. The structural alternative — the restoration of the structural-concentration framework that operated prior to the Bork-framework operationalization — would address the cross-sectoral concentration through the categorical mechanism that the post-1981 framework has substantially abandoned.
The Khan-Wu Reform Attempt
The contemporary American antitrust-reform movement, organized principally around the work of Lina Khan (FTC Chair 2021-2025), Tim Wu (Special Assistant to the President for Technology and Competition Policy 2021-2023), and the broader “Neo-Brandeisian” or “antitrust revival” academic and policy network, was the first serious attempt across the post-1981 period to restore the structural-concentration framework.12 Khan’s 2017 Yale Law Journal article “Amazon’s Antitrust Paradox” was the principal contemporary intellectual contribution to the reform movement; the article argued that the Amazon-era American economy demonstrated the structural inadequacy of the Bork consumer-welfare framework, with Amazon’s substantial market power producing harms that the consumer-welfare framework’s price-focus analysis substantially missed.13
The Biden-administration enforcement record across 2021-2024 was the principal contemporary operational test of the reform framework. The administration brought substantial antitrust litigation against Google (search-monopoly case, advertising-monopoly case), Meta (the Instagram-WhatsApp merger reversal attempt), Amazon (the broader monopolization case), Apple (the smartphone-monopoly case), Live Nation/Ticketmaster (the merger-reversal attempt), and a broader range of corporate-concentration cases that the prior administration’s enforcement record had not addressed.14 The administration also issued an Executive Order on Promoting Competition in the American Economy (July 2021) that established the structural-competition framework as administration-wide policy and directed federal agencies to advance competition-promoting actions in their respective regulatory areas.15
The empirical record of the reform attempt is mixed. The administration achieved partial victories in several cases (the Google search-monopoly case at the trial-court level, the broader pattern of merger-block successes); the administration also lost several cases (the Meta-Within virtual-reality merger challenge, several other cases) on the framework that the courts were not yet prepared to substantially modify the Bork-framework operational doctrine. The cumulative effect across the 2021-2025 period was the substantial visibility and intellectual reframing of the antitrust-reform framework, without the operational restoration of the pre-Bork enforcement intensity that the reform’s principal advocates had sought.
The 2025 transition from the Biden administration to the Trump administration substantially constrained the reform attempt. The Khan FTC was substantially constrained by the new administration’s appointment of new commissioners; the Antitrust Division’s enforcement intensity has, on the early operational record, substantially returned to the pre-2021 framework; the broader administration policy framework has substantially abandoned the structural-competition policy framework that the Biden-administration Executive Order had established.16 The contemporary antitrust enforcement framework is, in operational terms, substantially the post-1981 framework with the Khan-Wu reform attempt’s intellectual contributions partially absorbed but the operational enforcement intensity substantially returned to the prior pattern.
What’s at Stake
A platform position on corporate concentration and antitrust would, on the framework the previous sections have described, address the structural feature that the broader fourth-settlement framework’s other components depend on the absence of. The component would have approximately the following elements.
The first element would be the legislative codification of the structural-concentration framework — the restoration of the pre-Bork enforcement standards through statutory amendment of the Sherman, Clayton, and FTC Acts that would substantially constrain the consumer-welfare-only operational framework. The mechanism would address the specific operational-doctrinal feature that the post-1981 enforcement has been substantially constrained by.
The second element would be the substantial expansion of merger-review authority and intensity. The contemporary American merger-review framework, operating under the Hart-Scott-Rodino Act of 1976, has substantially insufficient capacity to review the contemporary merger volume at the scale required to maintain structural-concentration discipline. The expansion would include both substantial additional resources for the FTC and DOJ Antitrust Division, and the substantial revision of the merger-review thresholds and procedures to address the structural-concentration patterns the previous sections described.
The third element would be the categorical structural-divestiture commitment for specific sectors that have, on the empirical record, accumulated structural concentration that no merger-review framework can effectively address. The technology-platform sector (the hyperscaler concentration), the institutional-residential sector (the SFR concentration), the healthcare-system sector (the hospital concentration), the pharmaceutical sector, the financial-services sector, and the broader categories of structurally-concentrated industries would be subject to categorical divestiture authority that the contemporary framework substantially does not include.
The fourth element would be the broader sector-specific reform components that address the operational features that the antitrust framework alone cannot effectively constrain — the data-portability requirements that would constrain the technology-platform lock-in, the structural-separation requirements that would constrain the vertical integration of platform-and-content operations, the labor-and-supplier-bargaining components that would constrain the buyer-side market power that the consumer-welfare framework substantially excludes from analysis.
The political coalition required to enact the framework does not currently exist. The conditions under which it might assemble are the conditions the broader fourth-settlement framework requires. The framework’s principal political constraint is the structural feature that the corporate-concentration the framework would address is the same structural feature that funds the political coalitions whose support the framework would require — the donor-class lock-in described in The Donor Class operates with particular force in the antitrust context because the antitrust framework would directly constrain the corporate operators whose political contributions the contemporary system depends on.
The realism the broader series has called for, applied to corporate concentration, is the realism that the structural reform is achievable on the framework the historical enforcement record has validated; that the framework’s operational application requires the legislative and institutional capacity that the broader fourth-settlement framework would establish; that the principal obstacle to its enactment is the donor-class lock-in that the same framework would constrain.
The industries that don’t compete are the industries the contemporary American economy has structurally produced. The structural restoration of the framework that historically constrained the production is the assembly the broader fourth-settlement framework requires. The reconstruction is the assembly the next decade will determine.