Tue 03/09/2021 17:06 PM
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Takeaways

  • Should Lina Khan be nominated by President Joe Biden as a commissioner at the FTC, as has been widely reported, it would elevate a prominent enforcement-minded academic who has criticized the market power of large technology firms.

  • Khan is an associate law professor at Columbia University. She also was counsel to the House Judiciary House Judiciary Subcommittee on Antitrust, Commercial and Administrative Law where she assisted with an investigation of digital markets, culminating in its final report recommending numerous reforms to restore competition in the digital economy.

  • Khan is skeptical of antitrust law’s current focus on the “consumer welfare standard,” which she argues “fails to capture empirical realities and betrays the republican origins of antitrust.” Khan would likely continue and expand the work of current and former Democratic FTC commissioners - including pursuit of a more aggressive enforcement regime.

  • Sen. Mike Lee, ranking Republican Member of the Senate Judiciary Antitrust Subcommittee, has already signaled opposition to Khan’s nomination.


Should Lina Khan be nominated by President Joe Biden to be a commissioner at the FTC, as has been widely reported, it would elevate a prominent enforcement-minded academic critical of the market power of large technology firms to a position at a key competition watchdog. For access to the linked documents throughout this story as well as our M&A team's analysis and reporting on hundreds of other mergers and acquisitions request a trial here.

The nomination would signal significant changes at the FTC as Biden begins to populate the government with political appointees. Leadership of the FTC is evenly split between Democratic Chair Kelly Slaughter and Commissioner Rohit Chopra, and Republican commissioners Noah Phillips and Christine Wilson. Biden nominated Chopra to be director of the Bureau of Consumer Financial Protection; the Senate Banking Committee held a nomination hearing on March 2. Chopra will step down from the FTC prior to starting at the CFPB, leaving two open Democratic seats. It is unclear if and when Biden will nominate a second person to fill the final seat on the commission. At full strength, the commission during a Democratic administration would consist of three Democrats and two Republicans.

Khan is currently an associate law professor at Columbia University. She was counsel to the House Judiciary Subcommittee on Antitrust, Commercial and Administrative Law, where she assisted with an investigation of digital markets culminating in its final report, which recommends numerous reforms to restore competition in the digital economy. She previously was legal advisor to Chopra and legal director at the Open Markets Institute.

Khan’s writings express skepticism of antitrust law’s current focus on the “consumer welfare standard,” which Khan argues “fails to capture empirical realities and betrays the republican origins of antitrust.” Khan would likely continue and expand the work of current and former Democratic FTC commissioners, who have generally pursued a more aggressive enforcement posture than Republican commissioners. While a significant number of FTC votes are unanimous, during their time at the commission both Chopra and Slaughter dissented from decisions allowing large transactions to proceed conditioned on divestitures, including Allergan/Abbvie, Pfizer’s UpJohn spinoff to Mylan, and Danaher’s acquisition of GE Biopharma. The two Democrats also voted against the issuance of new Vertical Merger Guidelines in December 2020, arguing they “reflect the same status quo thinking that has allowed decades of vertical consolidation to go uninvestigated and unchallenged.” Chopra also voted against the settlement of objections to Eldorado’s acquisition of Caesars Entertainment Inc.

Sen. Mike Lee, ranking Republican Member of the Senate Judiciary Antitrust Subcommittee, signaled strong opposition to the potential nominee today, stating that she does not have the requisite experience for “such an important role,” with “less than four years out of law school.” Lee also asserted that Kahn’s views on antitrust enforcement are “wildly out of step with a prudent approach to the law.”

The nomination process can take months. For example, former President Donald Trump nominated former FTC Chairman Joe Simons, Chopra, Phillips and Wilson in late January 2018, but they were not confirmed by the full Senate - unanimously via voice vote - until April 26. The confirmation process for Biden’s nominees could be more contentious given Lee’s strong initial statement and the likelihood that only Democratic commissioners will be nominated.
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