DOJ’s proposed antitrust remedies against Google are a bridge too far

In early August 2024, Judge Amit Mehta of the US District Court for the District of Columbia found that Google illegally maintained a search engine monopoly. Judge Mehta’s ruling primarily focused on Google’s distribution deals with device manufacturers (such as Apple and Samsung) and web browsers (like Firefox) to make Google Search the default search engine on those devices or platforms. The court applied a notably permissive standard to determine whether Google engaged in monopolistic behavior. Specifically, the court held that the government only needed to demonstrate that the challenged distribution agreements “reasonably appear capable of” contributing to Google’s monopoly position—the same causation standard applied in the landmark United States v. Microsoft antitrust case decided in 2001.

The court reasoned that the disputed Google distribution agreements “reasonably appear[ed] capable of” foreclosing competitors from the search engine market because according to Dr. Michael Whinston, an economic expert for the plaintiffs, “50 percent of all queries in the United States are run through the default search access points covered by the challenged distribution agreements” (thus concluding competitors were foreclosed from 50 percent of the general search market). Google argued that this fact does not necessarily demonstrate foreclosure because consumers would still likely use Google Search at high rates even without the existence of the default distribution deals. Evidence from EU’s choice screen policy suggested users still predominately preferred Google Search when given the choice of default search engine when activating their smart devices.

Applying the “but-for” causation standard used in Rambus Inc. v. FTC, plaintiffs must demonstrate that were it not for the disputed business conduct, the plaintiffs would not have suffered anticompetitive harm. This means of determining causation, however, was not applied in this case, and the “reasonably appear capable of” standard was used instead. As Geoffrey Manne, president of the International Center for Law and Economics, effectively stated, this standard is applied when exclusionary conduct allegedly stymies the emergence of a nascent competitive threat—as in the Microsoft case where it was unclear whether Netscape could have developed into a rival in the operating-system marketplace. However, with respect to United States v. Google, developed rivals that offer substitute search engine products (such as Bing) already exist. Adopting such a permissive standard regarding antitrust oversight of business dealings risks substantially increasing the government’s power to restrain business.

In the wake of the Google Search ruling, the Department of Justice (DOJ) has pursued far-reaching measures to address Google’s monopoly position, with oral arguments of the remedy phase having concluded on May 30, 2025. The DOJ’s proposed remedies include enforcing data sharing by Google with competitors, implementing advertising restrictions, divesting the Chrome web browser from Google (and leaving the door open for a potential Android divestment as well), and prohibiting search-related payments to Google’s distribution partners.

CEI’s Jessica Melugin previously discussed the significant issues involved in enforcing data sharing by Google—this remedy would mandate Google to provide “qualified competitors” access to Google’s search data, including search queries and advertising data, at a “marginal cost.” As Jessica says, the remedies imposed on Google should be tailored specifically to the cause of harm. However, the DOJ’s proposed remedies are far too aggressive and (on balance) offer more harm than good.

Forcing Google to divest its Chrome web browser is unusual, unnecessary, and potentially harmful to consumers. Google developed Chrome organically through the company’s own investment and software development. Conventionally, a contested divestiture following the determination of an illegal monopoly normally takes place following a horizontal merger. Google maintains (and has always maintained) the technical know-how and infrastructure to operate its Chrome browser. The DOJ risks the deterioration in quality of one of the world’s best and most widely used web browsers by pushing for the enforced divestiture of Google Chrome.

According to the DOJ, Google’s ownership of Chrome disincentivizes the emergence of new, competitive alternatives. Thus, the DOJ asserts that Google should be forced to sell Chrome in order to allow rivals to compete. However, applying DOJ’s logic, divesting Google’s ownership of Chrome would in turn disincentivize the emergence of new, competitive alternatives. Why would current or emerging competitors be driven to create new, innovative, and valuable search engines or web browser products if the price of success is potential divestiture?

Already, many recognize Judge Mehta’s ruling as a potential landmark decision that may usher in a new phase of government antitrust regulation on America’s most successful technology companies. Imposing harsh and onerous remedies on Google would further indicate a seismic shift in antitrust regulation of the tech sector. Courts may want to think twice before acquiescing to government proposals that would unnecessarily hobble key American businesses, particularly when the punishment is unequivocally inappropriate given the nature of the harm.