Two smaller airlines, Spirit Airlines and JetBlue Airways, want to merge in order to better compete with the four large airlines. If Spirit and JetBlue merged, they would be the fifth-biggest airline, behind American Airlines, Delta Air Lines, United Airlines, and Southwest Airlines.

The federal government is blocking the merger, and there are rumblings that the whole thing might fall apart this weekend, sparing the big four airlines from increased competition.

Size conveys massive advantages in the commercial air travel industry. Delta is big enough that, during the 2010s, it was able to buy its own fuel refinery. Bigger companies have more leverage vis-a-vis suppliers and vendors. Their networks (including their frequent flier programs) give them extra inroads to customers. They also spend less per customer on various overhead costs.

As a JetBlue lawyer argued in court, an airline would “need the network breadth to be able to compete with the larger airlines.”

By blocking the merger, the federal government is basically telling Jet Blue and Spirit that they must remain small forever.

This is federal antitrust law protecting Big Business from competition by smaller businesses. This isn’t the way it’s supposed to work.

Antitrust law is supposed to be about trust-busting and protecting the regular guy against the might of the big guy.

But the history of antitrust law is replete with favors for the big guys. The Noerr-Pennington doctrine is a principle in antitrust law establishing that big guys can legally conspire against smaller guys as long as one of the co-conspirators is Big Government.  

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In the 1950s, Pittsburgh Consolidated Coal Company was the largest coal company in the world. It conspired with United Mine Workers explicitly to drive smaller coal companies out of business. When one of those small miners, James Pennington, tried to invoke antitrust law, the courts ruled that the conspiracy against him was legal because the Labor Department and the Tennessee Valley Authority had been involved in the conspiracy.

Any government power is likely to be used to protect the big guy — even antitrust.