Restaurants show weakness of the case against ‘big is bad’

Critics of today’s leading tech businesses often say we are living in a new Gilded Age of modern-day robber barons. We’ve even gotten occasional cameos from the Monopoly Man in congressional hearings. While catchy, this rhetoric neglects that today’s tech leaders are hardly the only options available to meet our needs and desires for information, connectivity, or retail therapy. The reality is that the difference in technology and consumer preferences make it more akin to something like our favorite restaurants, with many choices to suit personal preferences and nutritional needs.

Think about it: In an average city, there’s a range of restaurants that could serve you a quick lunch, but only a few that satisfy your cravings and meet your needs on any given day. You also may think that some restaurants serve poor quality or unhealthy food, or that other choices are superior. But we would consider it crazy for the government to dictate that McDonald’s needs to add more salads or that Chick-Fil-A has to add burgers.

We are okay if a restaurant wants to “preference” its daily special at the top of its menu, and we don’t require Burger King to tell you the price of a burger at the local diner. These companies are quite successful and ubiquitous to Americans and many around the world, but consumers still freely use the information available to them and their own preferences to choose the restaurants that fit their diets, wallets, and stomachs — without government mandates.

So why are politicians okay with government mandates on successful online companies? A current Senate proposal, S.2992, would ban self-preferencing for covered platforms, meaning that today’s tech leaders would no longer be free to show comparisons to their own store brand alternatives or highlight information about reviews and hours for a business from their own services. Additionally, they would be required to give competitors — even Russian or Chinese companies — access to certain information in ways that could create serious privacy and security concerns.

The average American has more choices than ever before when it comes to how to surf the web, find and share information, connect with friends and family, and download apps or other entertainment. In many cases, these options not only compete with each other but also with offline entertainment and retail.

Today, many Americans take advantage of these choices and already engage in the practice of “multi-homing” or using the same or similar apps on a variety of platforms and diversifying the operating systems they use. For example, Americans can have streaming apps on their Roku, a different set of apps on their iPhone, and yet another set of apps on their Windows-based laptop for work. They can use all these devices interchangeably depending on their mood, situation, or location. It’s the same as how someone may choose McDonald’s rather than Subway on a given day for lunch.

But some state and federal lawmakers ignore this abundance of choice — calling it “unfair” when consumers choose one product over another. If they got their way, they would force McDonald’s to allow Burger King to set up and sell in the same store. While we may love when these restaurants team up to offer their products in a singular location like a KenTacoHut, we certainly don’t mandate that they provide their competitors such space.

Many of the proposed policies target specific companies rather than the current antitrust focus on consumer welfare. FTC Commissioner Noah Philips critiqued proposed changes recently saying: “Whatever is being done here, isn’t really about the competitive process or competition. Forget consumer welfare, or fairness. It’s not really about competition. It’s about identifying a set of firms and saying, ‘Here are some things that you can’t do.’”

Unfortunately, many seem to forget the benefits of today’s technology choices to everyday users, consumers, and Americans.

While many policymakers like to lump in today’s tech leaders with the robber barons of yore, the reality is that the tech industry is as dynamic and diverse as the retail or restaurant industries. It competes and evolves in ways to try to best serve us as consumers, and its innovation benefits all Americans by increasing our options both online and offline. Proposed government intervention wouldn’t save consumers from harm, it would eliminate all our choices in the name of what is “good for us.”

Jennifer Huddleston is an adjunct professor at George Mason University’s Antonin Scalia Law School and policy counsel with NetChoice, an industry group that includes members such as Amazon, Google, Meta and Twitter.