Epic v Apple.

A victory in a largely invisible fight over the soul of antitrust.

Last week, federal Judge Yvonne Gonzalez Rogers ruled in Epic’s antitrust lawsuit against Apple, in which the maker of Fortnite alleged that Apple’s prohibitions on third party app stores and payment processors, combined with its sky-high processing fees for in-app purchases, constituted a violation of US antitrust law.

Depending on who you ask, Apple won big or suffered a crushing loss. The confusion stems from Judge Gonzalez Rogers’ ruling itself, which states that Epic failed to prove that Apple dominated its sector (mobile video games), and that its insistence that iPhone and iPad owners buy their apps from Apple and use Apple’s payment processor was a violation of antitrust law.

For people like me, who advocate for restoring America’s antitrust enforcement to its pre-Reagan state, the ruling was not a surprise. Prior to the Reagan years, antitrust enforcement was muscular and relentless, subjecting mergers, acquisitions, contracting terms and other conduct by large companies to ruthless scrutiny, effectively insisting that large companies prove that they weren’t abusing their dominance to hurt workers, suppliers or customers.

Harmful dominance

That was the antitrust of the New Deal, grounded in the notion that dominance itself was dangerous: that large firms could use their muscle to pervert the political process, buying off lawmakers and suborning regulators; and that they could hold a whip hand over their workers and force substandard wages and working conditions upon them.

New Deal antitrust targeted not just cartels, but also the conditions that gave rise to them. If you were worried that an industry dominated by a handful of companies would collude to line their pockets at the expense of others, the easiest way to prevent that was to intercede to prevent concentration in the first place. Smack down any company that grew or bought its way to dominance, keep every industrial sector fragmented in dozens or hundreds of companies, to keep the number of parties too large to manage a conspiracy.

All that changed in the Reagan years, as part of a concerted rollback of the gains of the post-war years: civil rights, labor rights, women’s…