The Antitrust Education Project (AEP) is a right-of-center advocacy organization that supports and defends the “consumer welfare standard,” a principle of antitrust enforcement that stipulates that policy should primarily consider the impact on product prices, choice, and quality, rather than the size of the business, when engaging in antitrust enforcement and litigation. ¹

The organization was founded by Robert H. Bork Jr., the son of Robert Bork, the late former federal judge and legal scholar who contributed to developing the consumer welfare standard, and Elliot S. Berke. It has taken more than $10,000 in donations from Amazon. ²

Founded in 2021, the right-leaning pro-business group has criticized the Biden administration, as well as both Democrats and Republicans in Congress for their positions on antitrust policies. ^{3 4}

Background

The Antitrust Education Project is a conservative, pro-business organization that defines itself as a group of legal scholars, thinkers and practitioners that point out the deterioration caused by American antitrust theory and application. ⁵

The organization was founded by Robert H. Bork Jr., the son of former Nixon administration U.S. Solicitor General, Reagan Supreme Court nominee, and author Robert H. Bork, as well as Washington lawyer Elliot S. Berke. ⁴

The AEP says it produces videos, blogs, infographics, and op-eds, and sponsors discussions and debates on antitrust law, engaging law schools, legal forums, and judicial organizations. ⁵

The AEP promotes the “consumer welfare standard,” which was pioneered by the elder Bork among others and stipulates that antitrust law and policy should primarily consider the impact on product prices, choice, and quality, rather than just the size of the business. This contrasts with the philosophy pushed by liberal Supreme Court Justice Louis Brandeis and his theory of “the curse of bigness.” ¹ The consumer welfare standard was widely adopted by courts by 1979 and gained bipartisan acceptance. However, the AEP contends regulators and lawmakers are drifting away from the standard. ⁶

Bork contends, “When standards are vague, and the law ambiguous, the Biden administration and its regulators will have the means to arbitrarily crack down on any business.” ⁷

Big Tech Financial Ties

Amazon gave “$10,000 or more” to the Antitrust Education Project in 2021 and 2022, according to a report by the Tech Transparency Project, a project of the liberal watchdog Campaign for Accountability. ^{2 8}

Robert Bork Jr.’s public relations firm Bork Communication Group has listed AT&T, Google, and eBay as clients. But the companies have no reported ties with the AEP. ⁴

Policy Advocacy

The Antitrust Education Project opposed the 2021 Senate confirmation of the Biden administration’s Federal Trade Commission Chairwoman Lina Khan. Bork described Khan as a “celebrity scholar recasting antitrust law into a tool to enable government to control capitalism.” ⁷

Bork wrote in The Wall Street Journal that Khan wants to “undo the consumer-welfare standard and replace it with a full-on effort to regulate pharmaceuticals, health care, agriculture, telecom, technology and manufacturing.” Bork argued this would allow the Biden administration to “steamroll every industry and protect inefficient, rent-seeking competitors over consumers,” and would be a federal power grab “at least the equal of the New Deal.” ³

The AEP has criticized the Biden administration for efforts to regulate big tech firms, but has also criticized Republicans for supporting what the organization calls “woke” reforms to tech policy. ^{2 8}

The younger Bork has criticized Republican U.S. Sens. Ted Cruz, Lindsey Graham, Chuck Grassley, Josh Hawley, and John Kennedy for supporting “the end of capitalism as we know it” when the GOP senators co-sponsored tech antitrust regulation legislation by Democratic Sen. Amy Klobuchar. ⁴

Republican Sen. Rand Paul embraced the AEP when he opposed the Competition and Antitrust Law Enforcement Reform Act. The senator cited Bork’s comment that the bill “would enact so many potential ways to prosecute, abuse, and torment companies that government would, in essence, become the real board of directors of every major company in America.” ⁹

Leadership

Robert H. Bork Jr. is the president and a board member of the Antitrust Education Project. He is the eldest son of jurist and author Robert H. Bork. Robert H. Bork Jr. was previously a journalist for U.S. News and World Report, Forbes, The Detroit Free Press, The Fort Worth Star-Telegram and The Miami Herald. He was also managing editor of the quarterly journal Regulation. He worked as an aide to U.S. Sen. Gordon Humphrey. He was a special assistant for U.S. Trade Representative Carla Hills. ¹⁰ Bork runs the Bork Communications Group, a public relations firm. ⁴

Elliot S. Berke is general counsel and a board member of the AEP. He is a managing partner of Berke Farah LLP. Previously, he was a partner at McGuireWoods LLP. Berke was named by Chambers USA as a “Nationwide Best Lawyer” and by Washingtonian as one of “Washington’s Best Lawyers.” He has represented clients before congressional ethics and oversight committees, the Federal Election Commission (FEC), the Justice Department, and Inspectors General. Berke has also represented and advised members of the House Republican leadership. ¹⁰

John Shu is a board member for the AEP. He is a lawyer focusing on antitrust cases, constitutional law, securities and corporate law, politics, and international affairs. Shu previously held positions in the administrations of Presidents George H.W. Bush and George W. Bush. He also previously worked for D.C. U.S. District Judge Stanley Sporkin. ¹⁰

1. Zymeri, Jeff. “Biden Administration Doubles Down on Its Hostility to Corporate Mergers.” National Review. July 19, 2023. Accessed September 9, 2023. https://www.nationalreview.com/news/biden-administration-doubles-down-on-its-hostility-to-corporate-mergers/
2. “Working the Refs.” Tech Transparency Project. August 31, 2023. Accessed September 9, 2023. https://www.techtransparencyproject.org/articles/under-antitrust-pressure-amazon-taps-bork-legacy
3. Bork, Robert H. Jr. “Joe Biden’s Antitrust Paradox: Where’s the Consumer Welfare?” The Wall Street Journal. July 12, 2021. Accessed September 9, 2023. https://www.wsj.com/articles/joe-bidens-antitrust-paradox-wheres-the-consumer-welfare-11626110441
4. Bredderman, William. “Amazon Enlists Right-Wing Scion to Battle Antitrust Action.” The Daily Beast. August 31, 2023. Accessed September 9, 2023. https://www.thedailybeast.com/amazon-enlists-right-wing-scion-robert-bork-jr-to-battle-antitrust-action-with-ftc
5. “About AEP.” Antitrust Education Project. Accessed September 9, 2023  https://www.antitrusteducationproject.org/about-aep/
6. “Consumer Welfare Standard: Back to the Future.” Accessed September 9, 2023.  https://www.antitrusteducationproject.org/the-consumer-welfare-standard/
7. McCabe, David and Kang, Cecilia. “One of Big Tech’s Biggest Critics Is Now Its Regulator.” The New York Times. June 16, 2021. Accessed September 10, 2023. https://www.nytimes.com/2021/06/16/technology/lina-khan-big-tech.html
8. “TTP Report: Amazon, Google Tap Bork Legacy to Fight Antitrust Critics.” Press Release. Campaign for Accountability. August 31, 2023. September 9, 2023. https://campaignforaccountability.org/ttp-report-amazon-google-tap-bork-legacy-to-fight-antitrust-critics/
9. Paul, Rand. “I stopped a big government power grab that would hurt businesses and consumers.” Fox News. December 9, 2022. Accessed September 9, 2023. https://www.foxnews.com/opinion/i-stopped-big-government-power-grab-that-would-hurt-businesses-consumers
10.  “Board and Staff Members.” Antitrust Education Project. Accessed September 9, 2023. https://www.antitrusteducationproject.org/board-and-staff-members/