On July 9, 2021, President Joe Biden signed one of the most sweeping changes to domestic policy since FDR. It was not legislation: His signature climate and health law would take another year to gestate. This was a request that the government get into the business of fostering competition in the U.S. economy again.

Flanked by Cabinet officials and agency heads, Biden condemned Robert Bork’s pro-corporate legal revolution in the 1980s, which destroyed antitrust, leading to concentrated markets, raised prices, suppressed wages, stifled innovation, weakened growth, and robbing citizens of the liberty to pursue their talents. Competition policy, Biden said, “is how we ensure that our economy isn’t about people working for capitalism; it’s about capitalism working for people.”

The executive order outlines a whopping 72 different actions, but with a coherent objective. It seeks to revert government’s role back to that of the Progressive and New Deal eras. Breaking up monopolies was a priority then, complemented by numerous other initiatives—smarter military procurement, common-carrier requirements, banking regulations, public options—that centered competition as a counterweight to the industrial leviathan.

It’s been a year and a half since Biden signed the executive order; its architect, Tim Wu, has since rotated out of government. Not all of the 72 actions have been completed, though many have. Some were instituted rapidly; others have been agonizing. Some agencies have taken the president’s urging to heart; others haven’t. But the new mindset is apparent.

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A MELTDOWN OF SOUTHWEST AIRLINES’ scheduling system over the Christmas holiday led to tens of thousands of canceled flights, and renewed attention on its chief regulator, the Department of Transportation, which has been criticized for failing to protect travelers. Most of the competition order related to DOT had to do with airlines, a concentrated industry with four carriers controlling 80 percent of all domestic routes.

The order encouraged DOT to address the failure of airlines to provide refunds for canceled flights; develop rules on fee disclosure, deceptive marketing, and refunds for baggage fees when items are lost or delayed; coordinate with DOJ on competition issues in transportation; and support the opening up of gate slots at large airports. At a surface level, the agency can definitively say they’ve achieved all of it. “DOT is taking action like never before,” a spokesperson said,“helping hundreds of thousands of travelers get more than a billion dollars of refunds back, issuing the highest amount in fines for consumer protection violations in the Department’s history, and enhancing consumer protections with proposed rulemakings.”

But William McGee, a longtime consumer advocate and airline expert now with the American Economic Liberties Project, calls it all window dressing. “It’s as if you wouldn’t even know that Biden announced the competition order,” he told me. In comments to DOT, McGee’s organization has noted that Americans faced the worst summer for customer service in history in 2022, with over 121,000 flights canceled in the first six months of the year. A lack of competition exacerbates cancellations and gives passengers no recourse but to fly the same inept airlines, and only the industry’s chief regulator can take action. “The agency’s lax regulatory approach has allowed and encouraged airlines to continue destabilizing the air travel industry,” the letter concludes.

Take DOT’s enforcement order against six airlines for failing to deliver timely refunds for canceled flights, as required by law. Frontier, a low-cost carrier with 3.2 percent of the market, was the only U.S. airline fined; the other five were foreign. United, the airline with more than twice as many refund complaints as any other airline in 2020, was not fined, nor were the other major U.S. carriers. “We were told the window has closed on that,” McGee said. A DOT spokesperson said that was inaccurate and that additional orders against carriers would be issued soon; three domestic airlines, the spokesperson added, were being investigated for “unrealistic scheduling.”

In August, DOT issued a draft rule on refunds, even though the agency’s existing interpretation regards failing to refund canceled flights as an unfair practice. Rulemaking could keep airlines safe from more fines for up to two years before it’s finalized. DOT already has a rule on unfair and deceptive practices; accepting money for a flight without the staff to handle it, and later canceling it, fits the definition, and could be used today.

DOT did issue 16 peak slots at Newark Airport to low-cost carrier Spirit, adding routes to the airport. But that was after an appeals court required that the slots be given out in May 2021. No other action has been taken on slots, which large carriers often sit on to avoid having to compete.

Other actions have been similarly soft-touch. Instead of a rule requiring airlines to seat children with their parents without an additional fee, DOT issued a notice encouraging them to do so. In October, DOT proposed a rule on fee transparency, so passengers would know how much a flight costs before making the sale. At an informal meeting with DOT officials last October, McGee asked why the department wasn’t looking to ban so-called junk fees, in line with the CFPB-led approach. McGee told me the response was “I am not aware of that and it would be a big departure for the department.”

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