Abstract: It is well known that Empirical Risk Minimization (ERM) may attain minimax suboptimal rates in terms of the mean squared error (Birgé and Massart, 1993). In this paper, we prove that, under relatively mild assumptions, the suboptimality of ERM must be due to its bias. Namely, the variance error term of ERM (in terms of the bias and variance decomposition) enjoys the minimax rate. In the fixed design setting, we provide an elementary proof of this result using the probabilistic method. Then, we extend our proof to the random design setting for various models. In addition, we provide a simple proof of Chatterjee’s admissibility theorem (Chatterjee, 2014, Theorem 1.4), which states that in the fixed design setting, ERM cannot be ruled out as an optimal method, and then we extend this result to the random design setting. We also show that our estimates imply stability of ERM, complementing the main result of Caponnetto and Rakhlin (2006) for non-Donsker classes. Finally, we highlight the somewhat irregular nature of the loss landscape of ERM in the non-Donsker regime, by showing that functions can be close to ERM, in terms of $L_2$ distance, while still being far from almost-minimizers of the empirical loss.