Ex-FTC Officials: Khan’s Antitrust Strategies Likely to Fail

FTC’s antitrust policies through rulemakings tied to unfairness authority is a “dead end,” said ex-FTC Commissioner Maureen Ohlhausen, now at Baker Botts. Khan is basing her decisions on overly broad interpretations of the FTC statute, an approach that resulted in the Supreme Court’s decision against the agency in the AMG case (see 2104270086), said Ohlhausen. Pursuing many rulemakings will also mean far less staff for enforcement, she said. “This is a recipe for more political control, less public input” and “probably slower rulemakings,” said Howard Beales, a Consumer Protection Bureau director under President George W. Bush, now at George Washington University. The current administration is deploying a cleanup strategy in response to years of lax antitrust enforcement, said American Antitrust Institute President Diana Moss: There’s credible evidence antitrust enforcers should be paying close attention to the debate of whether there’s observable increases in market concentration. Enforcers largely have the tools they need to enforce merger control, she said, arguing the problem is that the consumer welfare standard’s broad standards have been underutilized. There isn’t a “single feature” of current antitrust law that Khan “doesn’t hate,” said George Washington University law professor Richard Pierce. He noted Khan’s attempts to streamline the FTC’s Magnuson-Moss rulemaking procedures because the average timeline for such a rule is about eight years. The agency is subject to Mag-Moss procedures, as opposed to processes under the Administrative Procedure Act, which take anywhere from one to three years. It would be “foolish to go down that road” because the Mag-Moss prospects are so “unpromising,” he said.