The game theory with the EIP1559 changes is that there will be ample space in blocks to put in transactions, and there will (roughly, under normal circumstances) be just enough transactions in the pool to fill each block. So the miner only has the options of either (A) filling the block with transactions to earn tips or (B) chose to be hostile and generate an empty block, just to have the next miner put the most profitable transactions in the followup block.