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Neoliberal columnist Matt Yglesias recently weighed into antitrust policy in Bloomberg, claiming falsely that the “hipsters” in charge of Biden’s antitrust agencies were abandoning consumers and the war on high prices. Yglesias thinks this deviation from consumer welfare makes for bad policy during our inflationary moment. I have a thread that explains all the things he got wrong. The purpose of this post, however, is to clarify how antitrust enforcement has changed under the current regime, and what it means to abandon antitrust’s consumer welfare standard as opposed to abandoning consumers.

Ever since the courts embraced Robert Bork’s demonstrably false revisionist history of antitrust’s goals, consumer welfare became antitrust’s lodestar, which meant that consumers sat atop antitrust’s hierarchy. Cases were pursued by agencies if and only if exclusionary conduct could be directly connected to higher prices or reduced output. This limitation severely neutered antitrust enforcement by design—with a two minor exceptions described below, there was not a single (standalone) monopolization case brought by the DOJ after U.S. v. Microsoft for over two decades—presumably because most harm in the modern (digital) age did not manifest in the form of higher prices for consumers. Under the Biden administration, the agencies are pursuing monopoly cases against Amazon, Apple, and Google, among others.

(For the antitrust nerds, the DOJ’s 2011 case against United Regional Health Care System included a Section 2 claim, but it was basically included to bolster a Section 1 claim. It can hardly be counted as a Section 2 case. And the DOJ’s 2015 case to block United’s alleged monopolization of takeoff and landing slots at Newark included a Section 2 claim. But these were just blips. Also the FTC pursued a Section 2 case prior to the Biden administration against Qualcomm in 2017.)

Even worse, if there was ever a perceived conflict between the welfare of consumers and the welfare of workers or merchants (or input providers generally), antitrust enforcers lost in court. The NCAA cases made clear that injury to college players derived from extracting wealth disproportionately created by predominantly Black athletes would be tolerated so long as viewers with a taste for amateurism were better off. And American Express stood for the principle that harms to merchants from anti-steering rules would be tolerated so long as generally wealthy Amex cardholders enjoyed more luxurious perks. (Patrons of Amex’s Centurian lounge can get free massages and Michelle Bernstein cuisine in the Miami Airport!) The consumer welfare standard was effectively a pro-monopoly policy, in the sense that it tolerated massive concentrations of economic power throughout the economy and firms deploying a surfeit of unfair and predatory tactics to extend and entrench their power.

Labor Theories of Harm in Merger Enforcement

In the consumer welfare era, which is now hopefully in our rear-view mirror, labor harms were not even on the agencies’ radars, particularly when it came to merger review. By freeing the agencies of having to construct price-based theories of harm to consumers, the so-called hipsters have unleashed a new wave of challenges, reinvigorating merger enforcement, particularly in labor markets. In October 2022, the DOJ stopped a merger of two book publishers on the theory that the combination would harm authors, an input provider in book production process. This was the first time in history that a merger was blocked solely on the basis of a harm to input providers.

And the DOJ’s complaint in the Live Nation/Ticketmaster merger spells out harms to, among other economic agents, musicians and comedians that flow from Live Nation’s alleged tying of its promotion services to access to its large amphitheaters. (Yglesias incorrectly asserted that DOJ’s complaint against Live Nation “is an example of the consumer-welfare approach to antitrust.” Oops.) The ostensible purpose of the tie-in is to extract a supra-competitive take rate from artists.

Not to be outdone, in two recent complaints, the FTC has identified harms to workers as a critical part of their case in opposition to a merger. In its February 2024 complaint, the FTC asserts, among other theories of harm, that for thousands of grocery store workers, Kroger’s proposed acquisition of Albertsons would immediately weaken competition for workers, putting downward pressure on wages. That the two supermarkets sometimes poach each other’s workers suggests that workers themselves could leverage one employer against the other. Yet the complaint focuses on the leverage of the unions when negotiating over collective bargaining agreements. If the two supermarkets were to combine, the complaint asserts, the union would lose leverage in its dealings with the merger parties over wages, benefits, and working conditions. Unions representing grocery workers would also lose leverage over threatened boycotts or strikes.

In its April 2024 complaint to block the combination of Tapestry and Capri, the FTC asserts, among other theories of harm, that the merger threatens to reduce wages and degrade working conditions for hourly workers in the affordable handbag industry. The complaint describes one episode in July 2021 in which Capri responded to a pubic commitment by Tapestry to pay workers at least $15 per hour with a $15 per hour commitment of its own. This labor-based theory of harm exists independently of the FTC’s consumer-based theory of harm.

Labor Theories of Harm Outside of Merger Enforcement

The agencies have also pursued no-poach agreements to protect workers. A no-poach agreement, as the name suggests, prevents one employer from “poaching” (or hiring away) a worker from its competitors. The agreements are not wage-fixing agreements per se, but instead are designed to limit labor mobility, which economists recognize is key to wage growth. In October 2022, a health care staffing company entered into a plea agreement with the DOJ, marking the Antitrust Division’s first successful prosecution of criminal charges in a labor-side antitrust case. The DOJ has tried three criminal no-poach cases to a jury, and in all three the defendants were acquitted. For example, in April 2023, a court ordered the acquittal of all defendants in a no-poach case involving the employment of aerospace engineers. (Disclosure: I am the plaintiffs’ expert in a related case brought by a class of aerospace engineers.) Despite these losses, AAG Jonathan Kanter is still committed as ever to addressing harms to labor with the antitrust laws.

And the FTC has promulgated a rule to bar non-compete agreements. Whereas a no-poach agreement governs the conduct among rival employers, a non-compete is an agreement between an employer and its workers. Like a no-poach, the non-compete is designed to limit labor mobility and thereby suppress wages. Having worked on a non-compete case for a class of MMA fighters against the UFC that dragged on for a decade, I can say with confidence (and experience) that a per se prohibition of non-competes is infinitely more efficient than subjecting these agreements to antitrust’s rule-of-reason standard. Again, this deviation from consumer welfare has proven controversial among neoliberals; even the Washington Post editorial board penned as essay on why high-wage workers earning over $100,000 per year should be exposed to such encumbrances.

Consumers Still Have a Cop on the Beat

If you take Yglesias’s depiction literally, it means that the antitrust agencies under Biden have abandoned the protection of consumers. But nothing can be further from the truth. Antitrust enforcers can walk and chew gum at the same time. The list of enforcement actions on behalf of consumers is too long to reproduce here, but to summarize a few recent highlights:

Presumably Yglesias and his neoliberal clan have access to Google Search, Lina Khan’s Twitter handle, or the Antitrust Division’s press releases. It only takes a few keystrokes to learn of countless enforcement actions brought on behalf of consumers. Although this view is a bit jaded, one interpretation is that this crowd, epitomized by the Wall Street Journal editorial board and its 99 hit pieces against Chair Khan, uses the phrase “consumer welfare” as code for lax enforcement of antitrust law. In other words, what really upsets neoliberals (and libertarians) is not the abandonment of consumers, but instead any enforcement of antitrust law, particularly when it (1) deprives monopolists from expanding their monopolies to the betterment of their investors or (2) steers profits away from employers towards workers. In my darkest moments, I suspect that some target of an FTC or DOJ investigation funds neoliberal columnists and journals—looking at you, The Economist—to cook up consumer-welfare-based theories of how the agencies are doing it wrong. All such musings should be ignored, as the antitrust hipsters are alright.

“The nine most terrifying words in the English language are ‘I’m from the government, and I’m here to help.’” – Ronald Reagan

At recent events, Chair of the Federal Trade Commission and mug-emblazoner Lina Khan has taken to quoting Reagan’s cherished tagline above. Not to express ideological alignment, but as a springboard for workshopping her own modern twists on the perils of private tyranny:

Clearly, Chair Khan is on a roll.

But with a budget that sets staffing below 1979 levels, she has scarce time and resources to devote to perfecting her stand-up comedy routine. So it’s time to open a public comment period to efficiently crowdsource new material.

The most terrifying words in the English language are: I’m from…

Want to play along?

Use the hashtag #KhanStandup on whichever social media platform you are least dissatisfied with.

DISCLAIMER

This piece was not generated by a large language model, and therefore reflects only human attempts at humor. Any copyright infringement is inadvertent and not intrinsic to my business model. Although this piece was proofread by my wonderful husband, it may contain errors that are my fault. Finally, any remaining offensiveness is also my own, despite (unsuccessfully) attempting to seek guidance from an expert sensitivity reader. Void where prohibited.

Laurel Kilgour is a startup attorney in private practice who also teaches policy courses. The views expressed herein do not represent the views or sense of humor of the author’s employers or clients. This is not legal advice about any particular legal situation. To the extent any states might consider this attorney advertising, those states sure have some weird and counterintuitive definitions of attorney advertising.

Although the Federal Trade Commission (FTC) is ostensibly an “independent agency,” its chair, Lina Khan, has been authorized by President Biden to destroy capitalism. Chair Khan has hijacked trade policy along with left-wing groups. Her approach to Amazon—a subject from which she should recuse her herself as she wrote an article on Amazon in law school—borders on brain-death and is incredibly weak. Her takes are so bad, you could make a killing betting against her. She could learn a thing or two about monopoly power from watching Shark Tank. Honestly, she keeps whiffing.

Let’s just take one example, the FTC’s case against Amgen. The FTC really went wild at first, but then its bark turned out worse than its bite. So we’re not sure where we come out here. Too much, too little? Hard to say. We blame Chair Khan for our confusion.

Chair Khan keeps chalking up defeats. We think that’s because Khan can’t see the future. Yet she keeps going back to the future.

She is against business, despite her gift to Netflix. And her gift to Walmart and Amazon. Don’t ask us why she’s giving Amazon a gift when she hates Amazon. But Walmart is still taking her on. Regardless, she’s conspiring with foreigners to hamstring U.S. companies. And she’s in the hands of “Big Labor,” which makes her a socialist.

Also, she is literally trying to kill you. It’s so unholy. Seriously, a monopoly can be life-saving!  Her decisions have deadly consequences.

Quite frankly, she will grab power wherever she can. Flying too close to the sun can cause you to head for legal trouble.

Of course, the consumer-friendly patriots at the U.S. Chamber of Commerce will fight her. And fight her. Some are tired of fighting her, and have made noisy exits. Which we think show how abusive Chair Khan is. And abusive to staff, too. They are disgruntled. Even Lefties attack her.

Private equity warns her pro-enforcement stance hurts consumers. Really blasted her for that. Because as you know, mergers are pro-consumer, despite what overzealous folks like Chair Khan say. Businesses are really between a rock and Lina Khan’s FTC.

Did we mention that Chair Khan is biased? Against Amazon. Even though she narrowed her sights on them. And against Facebook. She has a Meta Fixation. Thanks to us, she can’t engage in a recusal coverup from all her biases.

Josh Hawley, have you met Lina Khan? Hawley loves Khan, but we don’t. Congress needs to investigate her.

We will say one positive thing about “Ms. Khan,” as we refer to her in an endearing and not-at-all misogynistic way: “Losing doesn’t get her down.” She’s “Taking on the World’s Biggest Tech Companies—and Losing.” Even if it MEANS losing. We think the point we are trying to make is she’s suffered so many setbacks. Yet all this losing is somehow intimidating, even causing a CEO to resign. All the while harassing Elon Musk.

What if she were around when the typewriter was invented? We don’t know, but we do know if she drives, she’ll try to fix her car even if it ain’t broke.

We think it is clear from what we’ve said here that Lina Khan hates business. Because of her and business-hating bureaucrats like her, businesses lack a seat at the table. In essence, corporate America is a political orphan. It’s spurring companies to rethink mergers, because her approach is not a Borkian “light touch.”

She hallucinates. She thinks all mergers are bad too. Biden needs to fix antitrust and rethink her ideas. Hashtag: Not all mergers. Chair Khan is too young and prone to radical ideas. Unlike the Chamber of Commerce, which is old. Oh, if only she didn’t fight the truth of Consumer Welfare!  Then she wouldn’t be tempted to take such bad cases. Or any at all, really.

Bottom line. We hate her. Also, is there another U.S. antitrust enforcement agency manned by a man? We forget.

The views expressed here do not represent those of the author’s employers. The author decided to summarize the Wall Street Journal’s position on Lina Khan through its op-eds, editorials, and letters to the editor. There are so many. But he’s summarized the gist in this essay to save you time in the future. You’re welcome.

Articles Used for This Summary:

  1. The Story Behind Biden’s Trade Failure: Emails show how Lina Khan and the left co-opted Katherine Tai.
  2. Brain Death at the FTC and FCC: Net neutrality and Amazon show why Congress needs to kill agencies as well as creating new ones.
  3. Lina Khan Has a Weak Case Against Amazon: The FTC Chair defines monopoly down to harpoon the giant retailer with an antitrust suit.
  4. The Hedge Fund That Made a Killing Betting Against Lina Khan: Pentwater Capital predicted that FTC attempts to block big deals would fail
  5. Lina Khan Needs to See ‘Shark Tank’: Kevin O’Leary would never invest in a business that had to face conditions of ‘perfect competition.’
  6. Lina Khan Whiffs Again
  7. Antitrust Gone Wild Against Amgen: No theory is too strange for Lina Khan’s FTC to block a merger.
  8. Biden FTC’s Antitrust Bark Proves Worse Than Its Bite: FTC settlement with Amgen will pave way for more healthcare deal making
  9. Lina Khan Chalks Up Another Defeat: A federal judge tosses the FTC’s Meta suit as lacking enough evidence.
  10. The FTC Can’t See the Future: The agency litigates videogame consoles, which will be irrelevant in 10 years.
  11. Lina Khan and the FTC Go Back to the Antitrust Future: Biden’s reactionary trustbuster seeks to resurrect precedents that were out of date 40 years ago.
  12. Lina Khan’s Gift to Netflix; Blocking the Amazon-MGM deal would help the streaming giants.
  13. The FTC’s Grocery Gift to Walmart and Amazon:  Chair Lina Khan won’t let Kroger and Albertsons merge to become more competitive.
  14. Walmart Takes On Lina Khan: A dubious FTC lawsuit tees up the agency for a constitutional challenge.
  15. The FTC Is Working With the EU to Hamstring U.S. Companies: Chair Lina Khan wants foreign help to impose her agenda that Congress wouldn’t pass.
  16. Lina Khan’s Non-Compete Favor to Big Labor
  17. Lina Khan Blocks Cancer Cures: Illumina’s acquisition of Grail would save lives, and it’s crazy for the FTC to call it a monopoly.
  18. The FTC’s Unholy Antitrust Grail:  The agency overrules its own law judge to block Illumina’s acquisition.
  19. One ‘Monopoly’ That Could Save Your Life: Will Lina Khan’s FTC block widespread early detection of pancreatic cancer?
  20. Lina Khan’s Merger Myopia Has Deadly Consequences: Will a new cancer screening test become widely available?
  21. Lina Khan’s Power Grab at the FTC: The new Chair snatches unilateral authority and rescinds bipartisan Obama-era standards.
  22. Lina Khan Is Icarus at the FTC
  23. The FTC Heads for Legal Trouble: Its aggressive rule-making will create opportunities for judges to rein in the commission’s authority.
  24. Business Group Challenges Lina Khan’s Agenda at Federal Trade Commission
  25. The Chamber of Commerce Will Fight The FTC
  26. Why I’m Resigning as an FTC Commissioner: Lina Khan’s disregard for the rule of law and due process make it impossible for me to continue serving.
  27. The Many Abuses of Lina Khan’s FTC: Christine Wilson’s resignation highlights the agency’s bad turn.
  28. Lina Khan’s Trumpian Precedent
  29. Lina Khan Sees Turbulent Start as Head of Federal Trade Commission: Criticized by Republicans, Khan tells agency staffers she aims to build bridges going forward
  30. Progressives Attack Their Own at the FTC
  31. Antitrust Attacks on Private Equity Hurt Consumers
  32. Private Equity Blasts Antitrust Agencies’ Efforts to Slow Mergers
  33. T-Mobile Proves That Mergers Can Benefit Consumers: That should give pause to today’s overzealous antitrust enforcers.
  34. Between a Rock and Lina Khan’s FTC
  35. Amazon Seeks Recusal of FTC Chairwoman Lina Khan in Antitrust Investigations of Company
  36. Lina Khan Once Went Big Against Amazon. As FTC Chair, She Changed Tack.
  37. Facebook Seeks FTC Chair Lina Khan’s Recusal in Antitrust Case
  38. Lina Khan Has a Meta Fixation
  39. Lina Khan’s Recusal Coverup
  40. Josh Hawley, Meet Lina Khan
  41. Josh Hawley Loves Lina Khan
  42. Congress Can Investigate Lina Khan
  43. Lina Khan’s Artificial Intelligence: Fresh off its latest legal defeat, the FTC moves to regulate ChatGPT.
  44. Lina Khan Is Taking on the World’s Biggest Tech Companies—and Losing
  45. Why the FTC’s Lina Khan Is Taking on Big Tech, Even if It Means Losing
  46. Antitrust Regulation by Intimidation
  47. Lina Khan Wins as Illumina’s CEO Resigns
  48. The Harassment of Elon Musk
  49. If Lina Khan Had Been Around When the Typewriter Was Invented
  50. Car Shopping Ain’t Broke, So the FTC Will Fix It
  51. How Corporate America Became a Political Orphan
  52. Wall Street Deal Making Faces Greater Scrutiny, Delays Under FTC’s Lina Khan
  53. The Return of the Trustbusters
  54. Forget AI: The Administrative State Is a Bad Algorithm: Microsoft trustbusters and EPA regulators show chatbots aren’t the only ones who ‘hallucinate.’
  55. How Biden Can Get Antitrust Right: New draft competition guidelines released last week need revision. Not all mergers are bad.
  56. Let a Biden Reappraisal Include Antitrust: If any good comes from the administration’s debacles, our oldest president will put aside childish things.
  57. The New Progressives Fight Against Consumer Welfare
  58. Lina Khan and Amy Klobuchar’s Microsoft Temptation

The FTC just secured a big win in its IQVIA/Propel case, the agency’s fourth blocked merger in as many weeks. This string of rapid-fire victories quieted a reactionary narrative that the agency is seeking to block too many deals and also should win more of its merger challenges. (“The food here is terrible, and the portions are too small!”) But the case did a lot more than that.

Blocking Anticompetitive Deals Is Good—Feel Free to Celebrate!

First and foremost, this acquisition, based on my read of the public court filings, was almost certainly illegal. Blocking a deal like this is a good thing, and it’s okay to celebrate when good things happen—despite naysayers grumbling about supporters not displaying what they deem the appropriate level of “humility.” Matt Stoller has a lively write-up explaining the stakes of the case. In a nutshell, it’s dangerous for one company to wield too much power over who gets to display which ads to healthcare professionals. Kudos to the FTC caseteam for securing this win.

Judge Ramos Gets It Right

A week ago, the actual opinion explaining Judge Ramos’s decision dropped. It’s a careful, thorough analysis that makes useful statements throughout—and avoids some notorious antitrust pitfalls. Especially thoughtful was his treatment of the unique standard that applies when the FTC asks to temporarily pause a merger pending its in-house administrative proceeding. Federal courts are supposed to play a limited role that leaves the final merits adjudication to the agency. That said, it’s easy for courts to overreach, like Judge Corley’s opinion in Microsoft/Activision that resolved several important conflicts in the evidence—exactly what binding precedent said not to do. This may seem a little wonky, but it’s playing out against the backdrop of a high-stakes war against administrative agencies. So although “Judge Does His Job” isn’t going to make headlines, it’s refreshing to see Judge Ramos’s well-reasoned approach.

The IQVIA decision is also great on market definition, another area where judges sometimes get tripped up. Judge Ramos avoided the trap defendants laid with their argument that all digital advertising purveyors must be included in the same relevant market because they all compete to some extent. That’s not the actual legal question—which asks only about “reasonable” substitutes—and the opinion rightly sidestepped it. We can expect to see similar arguments made by Big Tech companies in future trials, so this holding could be useful to both DOJ and FTC as they go after Meta, Google, and Amazon.

How Does This Decision Fit Into the Broader Project of Reinvigorating Antitrust?

One core goal shared by current agency leadership appears to be making sure that antitrust can play a role in all markets—whether they’re as traditional as cement or as fast-moving as VR fitness apps.

The cornerstone of IQVIA’s defense was that programmatic digital advertising to healthcare professionals is a nascent, fast-moving market, so there’s no need for antitrust enforcement. This has long been page one of the anti-enforcement playbook, as it was in previous FTC merger challenges like Meta/Within. But, in part because the FTC won the motion to dismiss in that case, we have some very recent—and very favorable—law on the books rejecting this ploy.

Sure enough, Judge Ramos’s IQVIA opinion built on that foundation. He cited Meta/Within multiple times to reject these defendants’ similar arguments that market nascency provides an immunity shield against antitrust scrutiny. “While there may be new entrants into the market going forward,” Judge Ramos explained, “that does not necessarily compel the conclusion that current market shares are unreliable.”  Instead, the burden is on defendants to prove historical shifts in market shares are so significant that they make current data “unusable for antitrust analysis.”  His opinion is clear, and clearly persuasive—DOJ and a group of state AGs already submitted it as supplemental authority in their challenge to JetBlue’s proposed tie-up of Spirit Airlines.

A second goal that appears to be top-of-mind for the new wave of enforcers is putting all of their legal tools back on the table. Here again, the IQVIA win fits into the broader vision for a reinvigorated antitrust enterprise.

Just a few weeks before this decision, the FTC got a groundbreaking Fifth Circuit opinion on its challenge to the Illumina/GRAIL deal. Illumina had argued that the Supreme Court’s vertical-merger liability framework is no longer good law because it’s too old. In other words, the tool had gotten so dusty that high-powered defense attorneys apparently felt comfortable arguing it was no longer usable. That happened in Meta/Within as well: Meta argued both of the FTC’s legal theories involving potential competition were “dead-letter doctrine.” But in both cases, the FTC won on the substance—dusting off three unique anti-merger tools in the process.

IQVIA adds yet another: the “30% threshold” presumption from Philadelphia National Bank. Like Meta and Illumina before it, IQVIA argued strenuously that the legal tool itself was invalid because it had long been out of favor with the political higher-ups at federal agencies. But yet again, the judge rejected that argument out of hand. The 30% presumption is alive and well, vindicating the agencies’ decision to put it back into the 2023 Merger Guidelines.

Stepping back, we’re starting to see connections and cumulative effects. The FTC won a motion to dismiss in Meta/Within, lost on the injunction, but made important case law in the process. IQVIA picked up right where that case left off, and this time, the FTC ran the table.

Positive projects take time. It’s easier to tear down than to build. And both agencies remain woefully under-resourced. But change—real, significant change—is happening. In the short run, it’s impressive that four mergers were blocked in a month. In the long run, it’s important that four anti-merger tools are now back on the table.

John Newman is a professor at the University of Miami School of Law. He previously served as Deputy Director at the FTC’s Bureau of Competition.

As the frontline against illegal monopolies and deceptive corporate behavior, the Federal Trade Commission (FTC) has a critical role to play in building an economy that works for consumers and small businesses. Since becoming FTC Chair, Lina Khan’s efforts to rein in anti-competitive behavior and protect consumers has been met with fierce resistance from powerful special interests and hostile editorials in the The Wall Street Journal.

Unfortunately, given the FTC’s role in combating unfair corporate behavior, this pushback is to be expected. I should know: I had the privilege of being an FTC commissioner, serving in both the Clinton and Bush administrations. I’ve seen fair, and unfair, criticism targeted at Republican and Democratic FTC chairs alike.

As a commissioner, I served under Chair Tim Muris, who was appointed by George W. Bush and whose aggressive stewardship of the agency resembled in many ways the current leadership of Chair Lina Khan. While at the helm of the FTC, Chair Muris pursued one of the most aggressive regulatory agendas of any Bush-appointed agency heads. His agenda was assisted by his chief of staff, Christine S. Wilson, who went on to be appointed to the FTC by Donald Trump. 

Despite this history, Wilson made big news when, as part of her resignation announcement, she attacked Chair Khan’s “honesty and integrity” and accused her of “abuses of government power” and “lawlessness.”  This turned many heads in Washington, particularly mine because of how detached this viewpoint was from my prior experience of serving at the FTC under Wilson’s own stewardship of the agency.

In his 2021 Executive Order on Promoting Competition in the American Economy, President Biden acknowledged that “a fair, open, and competitive marketplace has long been a cornerstone of the American economy.” Unfortunately, corporate concentration has grown under both parties for many years, especially in the technology industry. It is fortunate, and past time, to see the White House, the FTC, Department of Justice, and other agencies working to swing back the pendulum and reinvigorate competition in the American economy.

Despite the ongoing crisis of corporate concentration, Ms. Wilson took objection to an antitrust policy statement the FTC adopted in November and to Chair Khan’s statements in favor of strong enforcement. I found this odd having seen up close Ms. Wilson zealously advance Chair Muris’s enforcement agenda. In office, Muris “challenged mergers in markets from ‘ice cream to pickles,’” as the Wall Street Journal once noted, including in the technology industry, where Lina Khan has devoted significant attention.  

During his tenure, Muris used the power available to him as Chair on behalf of consumers and for the good of the economy. He evolved the theory behind FTC regulatory authority so he could take new action to protect consumers—like creating the DO NOT CALL registry—over frivolous legal objections by the telecommunications industry. Like Khan, he coordinated with the DOJ to ensure that they were addressing anticompetitive behavior.

Ms. Wilson claims that Chair Khan should have recused herself from a Facebook acquisition case because of opinions she had expressed as a Congressional staffer. But both a federal judge and the full Commission found no basis to these claims of impropriety, and it is clear that Chair Khan had no legal or ethical obligation to recuse in this case. FTC Commissioners including Khan, like judges, are required to set their personal opinions aside and evaluate cases on the merits, and they do. The FTC Ethics Guidelines tells commissioners to ”not work on FTC matters that affect your interests: financial, relational, or organizational.” When it comes to ethics guidelines, it doesn’t get any plainer than that, and Chair Khan’s participation in the case clearly does not violate these guidelines. 

In a hyper-partisan environment, Ms. Wilson’s attacks on the FTC’s credibility appear to me as an attempt to slow antitrust enforcement and ultimately obfuscate Chair Khan’s pro-consumer agenda. 

The U.S. Chamber of Commerce, which lobbies against pro-consumer regulations, sent an open letter to Senate oversight committees demanding an investigation of “mismanagement” at the FTC, including congressional hearings. No wonder the Chamber is upset. The Biden Administration is taking the crisis of corporate concentration seriously and is taking steps to bolster antitrust and consumer protection enforcement. That’s a development American consumers should cheer, because when corporate consolidation rises, competition is inevitably diminished, leading to higher prices and fewer choices for consumers. 

Fortunately, Chair Khan is building on the legacy of strong leaders like Muris to build an economy that works for consumers, not harmful monopolies. Ultimately, she will be remembered for that and not cynical, distracting attacks on her.

Sheila Foster Anthony, a FTC commissioner from 1997-2003, previously served as Assistant Attorney General for Legislation at the U.S.Department of Justice. Prior to her government service, she practiced intellectual property law in a D.C. firm.

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