In a recent RealClearMarkets article, Charles Sauer uses a football analogy to capture what’s at stake in today’s antitrust debates. Football works because the rules are known in advance and applied consistently. When referees invent new rules mid-game, the integrity of competition collapses.
Markets operate the same way. Sauer argues that capitalism and entrepreneurship only thrive when the rules are clear and predictable. When regulators arbitrarily rewrite those rules—especially during merger reviews—investment slows, risk-taking declines, and consumers ultimately lose.
“Capitalism and entrepreneurship only thrive when the rules are clear and consistently applied. When regulators invent new rules mid-game, innovation and growth begin to lose their luster.”
That concern is especially relevant as Netflix works through its bid to acquire Warner Bros. Under the Biden administration, mergers and acquisitions slowed to a crawl as antitrust enforcement embraced a Neo-Brandeisian approach that treated size itself as a liability. Rather than focusing on consumer outcomes, merger review expanded to chase non-economic goals, sidelining the consumer welfare standard that has long anchored U.S. antitrust policy.
The Trump administration reversed course, reopening the M&A environment and restoring confidence for entrepreneurs looking to grow and compete. Sauer notes that this shift helped re-ignite economic activity, even amid broader political uncertainty.
At the heart of Sauer’s argument is the consumer welfare standard—the principle that mergers should be evaluated based on whether they benefit consumers, not whether they satisfy political or populist demands.
“The consumer welfare standard exists to keep antitrust focused on outcomes for consumers—not to serve as a vehicle for chasing unrelated political goals.”
This framework matters most in fast-moving markets like entertainment. Claims that Netflix does not compete with platforms such as YouTube or TikTok ignore how modern consumers actually engage with media. Streaming services, social platforms, and new studio entrants all compete for the same finite resource: attention.
Consumers today enjoy unprecedented choice, while companies face relentless pressure to innovate and improve quality. That dynamic is not a market failure—it’s competition working exactly as intended. Sauer concludes that regulators should resist pressure to regulate today’s markets as if it were 1925 instead of 2025, and instead allow competition—and consumers—to decide the outcome.
Read more at RealClearMarkets by clicking here.
