Ex-DOJ Lawyer in JetBlue Case Lays Out New Antitrust Reality for Airlines

A former Department of Justice attorney who litigated the government’s successful challenge to the JetBlue-Spirit merger has outlined the future of antitrust enforcement in the airline industry, offering a new framework for how regulators will likely view consolidation. In a detailed analysis published in Fortune on May 7, 2026, James Moore, now a partner at Axinn, Veltrop & Harkrider LLP, argues that Spirit Airlines’ subsequent financial collapse provides critical lessons for both airlines and policymakers on competition in a highly concentrated market. The analysis arrives after a turbulent period for the U.S. airline industry. In early 2024, a federal judge in Massachusetts blocked JetBlue Airways' proposed $3.8 billion acquisition of Spirit Airlines, siding with the Department of Justice. The DOJ had argued the deal would eliminate a key ultra-low-cost competitor, leading to higher fares and fewer choices for consumers. JetBlue and Spirit ultimately terminated the merger agreement following the ruling. In the months that followed, Spirit Airlines faced significant financial distress. According to Moore's analysis, the airline was hit particularly hard by a sudden spike in oil prices, a factor that fundamentally altered the cost structure of the industry. Spirit’s business model, which relied on minimizing costs to offer rock-bottom fares, became untenable, leading to what Moore and other industry observers have described as the airline's collapse. This outcome has created a complex new context for antitrust enforcement, which Moore’s analysis directly addresses. One of the central takeaways is the undeniable importance of scale. Moore asserts that both Spirit and JetBlue have struggled because they lack the massive scale of their largest competitors. This includes not only the size of their route networks but also the lucrative loyalty programs and co-branded credit card partnerships that have become essential profit centers for legacy carriers. While the government may favor organic growth, the market reality is that smaller airlines are at a significant structural disadvantage. Another key area of focus for regulators will continue to be route overlap. According to Moore, the DOJ will maintain intense scrutiny on mergers that combine airlines with overlapping hubs and a high number of competing city-pair routes. He points to the government’s decision not to challenge the Alaska/Hawaiian and Allegiant/Sun Country transactions as evidence that a small number of overlaps may be permissible. However, as the number of overlapping routes grows, so does the likelihood of a lengthy and potentially prohibitive regulatory review. This provides a clearer, if challenging, metric for airlines contemplating future mergers. The analysis also sheds light on the high bar for using a “failing firm” defense. During the trial, Spirit’s leadership testified about its standalone plans to return to profitability. This testimony likely undermined any potential argument that the merger was a last-ditch effort to save the company from imminent failure. Spirit’s subsequent financial crisis complicates this narrative, but it suggests that regulators will require overwhelming evidence of a company's inability to survive independently before accepting that a merger is the only option to preserve assets and service. The JetBlue-Spirit case was a landmark for the Justice Department’s broader push for more aggressive antitrust enforcement across multiple sectors. As detailed in a 2025 analysis in the Loyola Consumer Law Review, the government has increasingly sought to block multibillion-dollar deals it views as harmful to competition. The successful challenge to the airline merger was seen as a major victory for this approach, but the aftermath raises questions about whether consumers are ultimately better off when a low-cost carrier is forced out of the market entirely. For small and mid-sized carriers, the path forward is fraught with operational and strategic challenges. They must find ways to achieve the scale necessary to compete with the industry’s giants, yet their most direct path to doing so—consolidation—is now under a regulatory microscope. This environment demands exceptionally careful long-term planning and a deep understanding of the new antitrust landscape. In our experience, the current regulatory climate places an immense burden on companies to prove that a proposed merger is not anti-competitive, a stark reversal from previous eras. The strategy of announcing a deal and hoping to negotiate concessions later is no longer viable. We’ve seen how a failed merger can leave a company financially weakened and strategically adrift, as the Spirit case demonstrates. This is why proactive strategic planning and rigorous pre-deal analysis are paramount. For any company considering a significant transaction, our Mergers and Acquisitions advisory services are designed to address these challenges head-on. We help clients evaluate regulatory risks, model financial scenarios, and build a defensible strategic narrative long before a deal is ever made public. For businesses navigating these complex strategic decisions, C&S Finance Group LLC at csfinancegroup.com provides the expert guidance needed to chart a viable path forward. Looking ahead, the industry will be watching closely to see how the Department of Justice internalizes the lessons from Spirit’s failure. Future airline merger proposals will serve as the true test of this evolving antitrust doctrine. How other mid-sized airlines structure potential deals and articulate their benefits to consumers will determine whether any further consolidation is possible in the American skies.