The U.S. government almost never jumps at its first chance to confront an emerging monopoly. But regulators have a long history of getting it right the second time. Standard Oil controlled America’s petroleum market for years before the Justice Department sued the company under the Sherman Antitrust Act; the federal government helped enshrine AT&T’s telephone monopoly for decades before deciding to break up “Ma Bell.” But now that federal and state enforcers are turning their attention to the power of large tech companies, lawyers for Facebook are insisting that the government already missed its only opportunity.
In lawsuits filed late last year, the Federal Trade Commission and 48 state attorneys general zeroed in on Facebook’s acquisitions of Instagram in 2012 and WhatsApp in 2014. Back then, the FTC issued what are known as “no action” letters. The company’s main defense to the new lawsuits is that agency enforcers declined to block the transactions when they had the chance. The new lawsuits, Facebook’s general counsel has insisted, are “revisionist history”—misbegotten attempts at a “do-over.”
Since the FTC litigation was filed, Joe Biden has been sworn in as president. While his administration may be less prone to criticizing Silicon Valley via Twitter than former President Donald Trump was, Democrats may be more receptive to calls for an aggressive new approach to antitrust enforcement. But if Facebook’s position is any indication, tech companies will try to use lax antitrust enforcement in the past as grounds to demand similar treatment going forward. That argument shouldn’t fly. Regulatory agencies need the flexibility to respond to changing conditions, new facts, and new ideas about how markets work—or don’t work.