These are interesting times and competition policy—let alone Federal Trade Commission (FTC) style consumer protection—may not top most people’s list of urgent concerns. But as a certain film character put it, this is the business we have chosen. So with that: Happy New Year!
A Good Day at the Bureau of Competition
The FTC’s Bureau of Competition kicked off 2026 with a win in a medical-device merger case.
Back in August 2025, the agency announced that it had:
moved to block medical device supplier Edwards Lifesciences Corp.’s (Edwards) proposed acquisition of JenaValve Technology, Inc. (JenaValve) due to concerns that the acquisition would limit patient access to lifesaving medical devices used to treat a potentially fatal heart condition
The FTC filed an internal Part 3 complaint and, at the same time, asked a federal court in D.C. for a preliminary injunction to stop the deal while that case played out. Last week, reports surfaced that Judge Rudolph Contreras granted the FTC’s request—though his reasoning remains sealed until the parties approve a public version that protects confidential information. Shortly after, Edwards announced it was walking away from the deal. Case closed.
I won’t pretend this is a full-blown analysis. Still, it’s an interesting case. The district court opinion isn’t public yet, and the Part 3 complaint is heavily redacted—no surprise given the products involved.
At the core is a proposed merger between two medical-device firms developing Class III devices, the most tightly regulated category. Each company is working on a transcatheter aortic valve replacement (TAVR) device designed to treat aortic regurgitation (AR), a potentially fatal condition. According to the FTC, these are the only two TAVR-AR devices currently in U.S. clinical trials under Food and Drug Administration (FDA) investigational approvals. Other devices exist, but they either target different conditions or are being tested abroad.
Many AR patients receive surgical aortic valve replacement, but the FTC argues—plausibly—that surgery isn’t recommended for some high-risk patients. For them, a TAVR-AR device may be the only viable lifesaving option. That makes the product market narrow and specialized—but also enormously important, far more so than most antitrust disputes.
Edwards and JenaValve don’t yet compete head-to-head in sales. They compete to be first—or at least not alone—in getting FDA approval. That puts this squarely in the realm of potential competition (or “actual potential competition”). Those cases are often hard, and often speculative, but here the FTC makes a credible case that both products could reach approval absent the merger. It also points to two concrete risks: slower or abandoned development of one device after the merger, and weaker competition once the products reach the market.
There’s still plenty we don’t know. Some answers may come when the court opinion is released; others will depend on FDA decisions and real-world clinical results. Even so, my hunch is that the FTC staff got this one right. Credit where it’s due.
The Theatre of Trans-Atlantic Antitrust
The international antitrust noise most relevant right now comes from across the Atlantic. Europe’s competition enforcement—and its antitrust-adjacent campaigns aimed squarely at U.S. firms, especially big tech—has become a growing source of friction.
That tension surfaced plainly Dec. 16, when the U.S. House Judiciary Subcommittee on the Administrative State, Regulatory Reform, and Antitrust held a hearing titled “Anti-American Antitrust: How Foreign Governments Target U.S. Businesses.” Diplomatic? Not exactly. But also not misleading.
Of course, different jurisdictions have different priorities, institutions, and political constraints—and the sovereignty to pursue them. That doesn’t mean their choices are good policy, even on their own terms, or that they’re applied evenly. Europe’s competition agenda, including the Digital Markets Act (DMA), raises hard questions about whose interests it serves, whether it delivers real consumer benefits, and who ultimately pays the bill. The recent Draghi Report offers a notably critical—if still charitable—assessment, and my colleagues at the International Center for Law & Economics (ICLE) have raised similar concerns in comments on the DMA’s first review.
The hearing featured testimony from Shanker Singham, Aurelian Portuese, Roger Alford, and my ICLE colleague Dirk Auer. There’s video for those interested in the theatre. The written submissions are where the substance is, and Auer’s is especially worth reading. As he puts it, Europe’s
approach has been codified in the DMA, the Digital Services Act (DSA), and the AI Act. These frameworks are effectively industrial-policy tools designed to handicap foreign incumbents, all in the hope that European challengers might emerge in the space created by regulatory friction.39 As the data shows, however, regulation is a poor substitute for innovation. The productivity gap remains, and the EU’s primary export in the digital age has become regulation itself, rather than digital products.
What’s striking is how untethered European fines against U.S. firms have become from any showing of harm to competition or consumers—European or otherwise. And the numbers are hard to ignore:
According to recent data, fines levied against major U.S. tech firms totaled approximately $2.03 billion in 2023, representing nearly 6% of the EU’s tariff revenue base; by 2024, these reported fines escalated to nearly $6.7 billion, roughly one-fifth (19.5%) of that same base. In effect, these enforcement actions function as direct fiscal transfers from American shareholders to European treasuries, allowing national governments to subsidize domestic budgets without the political pain of raising local taxes.
None of this is a reason—good or bad—to invade Greenland, or anywhere else in Denmark. But it’s also not trivial. And the fact that I’ve criticized aspects of U.S. antitrust enforcement elsewhere (here, here, and here, for a few examples) doesn’t make it so.
Governing in 500 Characters
In a more top-down bit of competition drama, President Donald Trump has turned his attention to housing. On Truth Social, he announced that he is “immediately taking steps to ban large institutional investors from buying more single-family homes,” and that he will urge Congress to lock the idea into law.
Whether Congress does anything at all is an open question. So is what, exactly, this proposal would mean. Does it cover only single-family homes? Which investors count as “large”? And how would any of this work in practice?
Housing markets are already tough, and the frustration potential homebuyers feel is real. But banning certain buyers doesn’t automatically help the rest. The effects would depend on the details and on local market conditions. What happens to sellers? Or to the many ordinary people who buy at one point and sell later? Is the goal to increase the supply of single-family homes nationwide? If so, it’s hard to see how restricting who can buy existing homes gets you there.
A social-media post isn’t an executive order, and so far there’s no order, no clear proposal, and no legislation to point to. Still, even informal signals can move markets. Reports already suggest short-term effects on some firms’ share prices. And while sweeping legislation seems unlikely, a few members of Congress have offered vague words of support for… something.
All of this comes on top of a flood of statements about housing, interest rates, and affordability. It’s a lot. Maybe a better place to start would be revisiting that April 2025 executive order on Reducing Anti-Competitive Regulatory Barriers.
Eight Counterclaims Walk Into a Courtroom
I was glad to sign onto an amicus brief from Former Antitrust Officials and Antitrust Scholars in CoStar v. CREXi, alongside Tim Muris (former FTC chair), Alden Abbott (former FTC general counsel), and my ICLE colleagues Geoffrey Manne and Gus Hurwitz. The case sits in the world of commercial real estate services, but the antitrust issues are familiar.
At bottom, CREXi claims “de facto exclusive dealing”—or, put differently, it tries to turn defenses to contract and intellectual property claims into eight (yes, eight) antitrust counterclaims under the Sherman Act and the Cartwright Act. The district court dismissed those counterclaims twice. The 9th U.S. Circuit Court of Appeals nevertheless revived them, for reasons we find unpersuasive.
The case raises two basic questions. First, what counts as “de facto exclusive dealing”? Second—and more important—did CREXi plausibly allege harm to competition, rather than just harm to itself? In our view, the answer to the second question is no.
That’s the short version. The details are in the brief.
Debating the Breakup Chorus
ICLE’s Geoff Manne took part in two public debates in December.
The first was a tag-team match hosted by NPR’s Open to Debate. Geoff and Jennifer Huddleston went up against Bharat Mamamurti and Matthew Stoller on the question: “Should the U.S. government break up big tech?” That question is so broad it borders on meaningless, so I’ll spare you a long critique. As an armchair referee, though, I’ll say this: Geoff and Jennifer won decisively. Pre- and post-debate polling shows they converted most of the undecided audience to the skeptical side, which seems as good a measure as any..
Then, on Dec. 16, Geoff faced Matt Stoller again—this time at the Soho Forum—over an almost identical question: “Is it time to break up big tech?” Credit where it’s due: there’s value in calmly unpacking populist antitrust arguments that resonate, at least in some circles, and doing so in a way people will actually watch. Geoff does this well.
I admire his patience. I don’t have it. And that’s on me.
Splitting the Remedy Baby
December 2025 brought a second remedies opinion in the Google Search case. Judge Amit Mehta’s first remedies decision—a 230-page opinion issued in September—had “directed the parties to meet and confer and present a joint proposed final judgment consistent with the Remedies Opinion’s findings and conclusions.” What followed was predictable:
That is when the devil reared its head. As has been true during much of this five-year-long litigation, the parties continued to see eye-to-eye on little, even with the benefit of the Remedies Opinion. They submitted two competing final proposed final judgments reflecting their respective interpretations of the Remedies Opinion with accompanying briefs explaining their positions.
The result, once again, was a kind of Solomonic split—though one that leaned more toward the U.S. Justice Department (DOJ) than Google. Still, Google picked up a few meaningful wins.
The most notable involves who qualifies as a “qualified competitor” eligible to receive data under the court’s data-sharing and syndication remedies. The mechanics remain murky, but Judge Mehta sided with Google against DOJ on one key point:
The court agrees with Google that an annual recertification requirement is prudent. The court shares Google’s concern about companies initially certified as Qualified Competitors who might abandon their professed intent to compete and improperly take advantage of data releases or other remedies.
That limitation makes sense. Judge Mehta also accepted Google’s view that devices running ChromeOS should not count as “devices” under the order.
As I wrote back in August 2024:
Judge Mehta’s opinion [on liability] is careful, thoughtful and, in many respects, defensible. I also think that he got it wrong on some key points that may find traction on appeal.
Given that liability ruling, the initial remedies decision was largely reasonable—and the final one mostly follows suit. But I remain skeptical that these remedies will help competition or consumers on net. DOJ’s push for divestitures went too far, but these behavioral remedies carry their own risks. They will be costly to administer, burdensome to enforce, and hard to get right.
In the end, competition in general search is more likely to turn on technical innovation than on court-ordered data sharing. We’ll see how it plays out.
When Delay Is the Only Progress
The FTC’s antitrust case against Amazon was supposed to go to trial later this year. It’s now been pushed to February 2027. We’ll see.
In my view, this is the weakest monopolization case the agencies have brought against a U.S. tech firm in years—and that’s saying something. I’m far from alone. I’ve discussed it with Brian Albrecht (here and here) for the Notice and Comment series at the Yale Journal of Regulation. Many others–including Geoff Manne, and Herb Hovenkamp–have covered it elsewhere. There’s plenty of time to revisit the merits, even if the new schedule holds. For now, I’ll just say this: I’d drop the case. The FTC isn’t asking, of course. But it has better uses for its limited resources—and still has the staff to pursue them.
In the meantime, once more, and with feeling: Happy New Year.
