I’m Riveted By The FTC (You Should Be Too)
A summary of my coverage of the FTC since Lina Khan became Chair.
CHRISTINE WILSON DECIDED ON a “noisy exit” from the Federal Trade Commission, and she made the most of it. In a February op-ed in the Wall Street Journal, “Why I’m Resigning as an FTC Commissioner,” she called out Chair Lina Khan for her “abuses of government power” and “disregard for the rule of law and due process.” Wilson said that she “refuse[d]” to lend, by remaining present, any “further hint of legitimacy” to Khan’s “continuing lawlessness.”
When, for example, the FTC challenged a merger between Meta and Within, maker of a virtual reality fitness app, in its internal tribunal, Khan declined to recuse herself from presiding over the case. This even though, before joining the agency, she had argued that all such acquisitions by Meta (née Facebook) should be prohibited. Wilson vehemently dissented. To add insult to injury, the remaining commissioners (both Democrats) packed her opinion with redactions. Most of these were imposed, Wilson protested, simply to conceal details of the affair that would be embarrassing to Khan.
At the time, the normally five-commissioner body was already down a member, Wilson having become the agency’s sole Republican when Noah Phillips departed late last year. Wilson’s resignation became official at the end of March, leaving the agency tightly in the grip of a brash progressive triumvirate.
THESE ARE INTERESTING TIMES at the FTC. They are interesting because Chair Khan—urged on by activists, politicians, and the media—has chosen to make them so. With Phillips and Wilson gone, things are likely to become more interesting still.
How did we get here? I have been writing about the FTC regularly since Khan took her seat. Now—when, suddenly, the agency lacks a single minority commissioner—seems like a good moment to take stock. Here is what I’ve had to say so far:
Pride Before the Fall at the FTC?, Law & Liberty (November 2021). Lays out Khan’s ambitions (e.g., topple the consumer-welfare standard; use antitrust policy to regulate working conditions) and early moves (e.g., consolidate power in the chair’s office; use merger review to press for more corporate ESG measures). Discusses Khan’s plan to expand the agency’s use of its Section 5 “unfair methods of competition” authority—and explains why it is likely to fail.
Is Lina Khan Courting a SCOTUS Rebuke?, City Journal (December 2021). Underscores the tension between the FTC’s structure—with its foundational assumption that the agency is neutral, scientific, and nonpartisan—and Khan’s belief that “all decisions are political.” The progressive Khan is on a collision course with a conservative Supreme Court. Khan might spur the justices to restore the president’s removal power, to revive the nondelegation doctrine, or to eliminate Chevron deference.
National Petroleum Refiners v. FTC: A Tale of Two Opinions, Truth on the Market (April 2022). Picks apart the only legal precedent supporting Khan’s effort to use Section 6(g) to issue “unfair methods of competition” rules under Section 5. That appellate decision—National Petroleum Refiners v. FTC (D.C. Cir. 1973)—employed a purposive approach to statutory interpretation. The underlying trial court decision—National Petroleum Refiners v. FTC (D.D.C. 1972)—employed a textualist approach. The purposive approach is obsolete. The textualist approach is sound. Judges considering the matter today will see things as the (unjustly reversed) trial court did.
Lina Khan’s Crusade, City Journal (June 2022). Raises Khan’s “tatter[ed]” relationship with FTC staff. Notes the irony of a government official wanting to manage the whole economy when she can’t even run her government office. Pokes fun at some of Khan’s weakest aspirations, e.g., breaking up a flailing Meta, stopping Amazon Prime Video (competitors: Netflix, AppleTV+, Disney+, etc.) from obtaining MGM’s content library. Wonders why anyone would support neo-Brandeisian antitrust policy in a time of inflation and anticipated recession.
No, Chevron Deference Will Not Save the FTC’s Noncompete Ban, Truth on the Market (February 2023). Explains why, even if the FTC can overcome various other obstacles and get a court to apply Chevron v. NRDC (1984), Section 6(g) still will not support “unfair methods of competition” rulemaking. Especially not when the rulemaking targets tens of millions of employee noncompete agreements.
The Unaccountable Federal Trade Commission, City Journal (April 2023). Argues that, under Khan, the FTC is flouting the will of Congress, the judiciary, and the president. The agency is proposing rules on noncompetes and “commercial surveillance” that exceed its statutory authority. It is defying the Supreme Court’s recent opinion, West Virginia v. EPA (2022), on how agencies must approach major policy questions. It is ignoring the judicial branch’s shift toward case-by-case (“rule of reason”) analysis in antitrust matters. It is leveraging the EU’s merger review process to evade oversight by Article III judges. And Khan has sparked a morale crisis among the agency’s rank and file—so she’s undermining even the executive branch.
In addition, I have the good fortune to host TechFreedom’s Tech Policy Podcast. Since Khan’s appointment, I’ve done a number of episodes on the FTC, all of which remain worth your time:
#308: All Eyes on the FTC (December 2021). Guest: Adam Cella, then-attorney advisor to then-FTC Commissioner Christine Wilson. I decided to invite Adam on the show after hearing him speak at an event called “The FTC in the Current Administration: Buckle Your Seatbelts.” That’s our subject here, too.
#322: FTC Commissioner Noah Phillips (June 2022). Guest: Noah Phillips! We cover a lot of ground. Enough said. Tune in.
#330: The FTC & FCC in Court (October 2022). Guest: Trent McCotter, partner at Boyden Gray & Associates. In the top half of the episode, we examine Axon Enterprise, Inc. v. FTC, an important Supreme Court case about whether a respondent in the FTC’s internal tribunal may bring a separate suit, in federal district court, challenging the FTC’s structure. (Last week, the Court answered yes.)
#341: The FTC Tries to Shape the Market (March 2023). Guest: Bilal Sayyed, senior competition counsel at TechFreedom. We discuss some of the FTC’s notable recent antitrust cases, including its efforts to block Meta’s purchase of Within, to split up Facebook “Blue” and Instagram, and to block Microsoft’s purchase of Activision.
More to come!
Originally posted at Corbin’s Substack, Policy & Palimpsests.