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On Tuesday, the federal government succeeded in doing something that it hasn’t done, or even seriously tried to do, in decades: It persuaded a court to block one large supermarket chain from acquiring another. In a major victory for the Federal Trade Commission, Judge Adrienne Nelson of the U.S. District Court in Oregon temporarily halted the merger of Kroger and Albertsons—the nation’s second- and fourth-biggest grocery retailers, respectively—ruling that the deal would harm competition in hundreds of communities. Hours later, a state court delivered another blow, blocking the merger in a separate suit brought by Washington’s attorney general. By the next day, Albertsons had announced that it was abandoning the deal and suing Kroger for allowing it to fall apart.
The rulings offer the clearest proof yet that the new antitrust movement is breaking through. This merger, which sparked fears of higher grocery prices and closed supermarkets, captured public attention in a way that few antitrust cases have. Judges are people too, and they are aware of the debates about corporate power and competition that have been taking place over the past decade. (The organization that I co-direct, the Institute for Local Self-Reliance, is among the groups advocating for invigorated enforcement.) The Biden administration’s push for a more skeptical view of corporate concentration is gaining traction in the courts—a crucial development, because judges play a pivotal role in interpreting the law and setting the boundaries of what’s considered legal.
But the timing is awkward. The incoming Trump administration is all but guaranteed to go easier on merger enforcement. Shortly after Nelson’s ruling came out, Donald Trump announced what had long been expected: He will replace the current FTC chair, Lina Khan, with an appointee more friendly to corporate dealmaking. For at least the next four years, major federal merger challenges might be scarce. Still, states will almost certainly continue advancing the ball on their own. In the long term, the door to revived competition enforcement has been decisively cracked open—and it won’t be so easy to shut.
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