Why I Joined the Airlines’ Amicus

By Robert Bork Jr.

December 18, 2023

When American Airlines and JetBlue created an alliance for service to Northeastern airports – aligning schedules, coordinating slots and gates, sharing codes – they justified this arrangement as pro-consumer.

Turns out, it was. 

The American-JetBlue alliance increased capacity for passengers by more than 200 percent at congested airports in the New York and Boston areas. It allowed the two airlines to offer almost 50 new nonstop routes. It increased frequency over 130 routes. And it increased capacity on 45 New York City flights.

Even better, this alliance intensified competition between the two airlines with United and Delta. What was a great deal for consumers, however, violated the progressive tenets of the Justice Department Antitrust Division, which declared the Northeast Alliance to be a “de facto merger.” This, despite the fact that the Department of Transportation allowed the two competitors to pool their resources to “provide offerings” that neither “could easily provide by itself.”

The Antitrust Division got what it wanted – a federal judge’s ruling is now unwinding the agreement. (Remember to thank the Biden Administration and Justice Antitrust Chief Jonathan Kanter the next time you get bumped from a flight to Logan). Each airline retained control over routes not covered, with flexibility in responding through tactical fare adjustment even within the Northeast region. But the judge bought the Administration’s argument that what was clearly a “joint venture” – between two airlines that overall are fierce competitors – was worthy of being evaluated as a merger. 

I am pleased to now represent the Antitrust Education Project in signing an amicus brief from the International Center for Law & Economics in favor of the airlines, a case now being submitted before the U.S. First Circuit Court of Appeals. ICLE has crafted a sharply written brief, with an argument bolstered up by clear precedents, market facts, and economic logic. 

Our brief shows that this is just one more example of how the Biden Administration and its enforcers at Justice and the Federal Trade Commission are not just oblivious to consumer welfare – they are at times actively hostile to it. They conflate the fate of a single competitor for the reality of increased competition. They make life worse for consumers and expect to be applauded for their virtue.

But empirical facts, precedent, and logic are not the point with the purveyors of progressive antitrust. As I’ve said before, this is all about power – the power of government over business, of the public over the private, of the regulator over the business executive. 

Fingers crossed for this appeal.