Despite radical changes to a multitude of federal departments and agencies since the start of the Trump administration, it appears to be business-as-usual at the Federal Trade Commission.
New FTC Chairman Andrew Ferguson seemingly is embracing key elements of former chairwoman Lina Khan’s policies and keeping the more “woke” measures Khan established, including DEI.
Earlier this month, Ferguson announced that he’ll be keeping the 2023 merger guidelines, adopted under Khan and Biden and that departed from the 50-year Consumer Welfare Standard.
Khan
| File photo
Robert Bork Jr. is president of the Antitrust Education Project, an advocacy group focused on protecting the consumer welfare standard.
“President Trump is stripping away regulations and liberating the animal spirits of the free market to help consumers,” Bork said. “Did Andrew Ferguson not get this memo? Why is he perpetuating the Biden-Khan merger guidelines that fail to mention the Consumer Welfare Standard, substituting it with vague standards that make federal regulators the ‘policemen at the elbow’ of every innovator?
“Sounds like Chairman Ferguson wandered into the wrong administration.”
In a recent opinion piece for The Hill, Tom Campbell called Ferguson a MINO, or MAGA In Name Only. Campbell was the director of the Bureau of Competition, the antitrust arm of FTC during the Reagan administration.
Campbell, who served five terms as a congressman from Silicon Valley, said the new Trump FTC will look a lot like the old Biden FTC.
“The new chairman of the FTC has brought the social-political wars right into the heart of the agency,” wrote Campbell, who also is an antitrust advisor to NetChoice, a trade association focused on promoting free expression and free enterprise, that includes Amazon and Meta. “What the chairman has not done, however, is change the targets of the FTC’s antitrust cases, or its Javerian pursuit of Big Tech. The former might be cover for the latter.
“In an interview on Fox Business Network last month, the new FTC Chairman Andrew Ferguson supported President Trump’s request that FTC decisions be shared with the White House in advance for the president’s possible input. That is a concession to presidential involvement in a supposedly independent agency that no previous FTC chair has ever allowed.”
Ferguson has said antitrust guidelines issued by the Biden FTC will not be subject to wholesale review,” Campbell wrote. “He recites how earlier Republican-led FTCs chose to keep merger guidelines formulated by Democratic-led FTCs that preceded them, and he intended to do the same.
“Curiously, he ignored all of the instances where Democratic-led FTCs took an axe to what Republicans had done. So, quite unlike the wholesale review going on at other independent agencies, like the FCC, the FTC will be supine on antitrust substance.”
Under Ferguson, the FTC is moving forward with a broad antitrust investigation in to Microsoft that started during the Biden administration. Also, Ferguson’s FTC inherited cases against Meta and Amazon, which it accuses of “deceptive practices.”
And last month, Ferguson issued a memo directing the FTC to continue to apply the 2023 merger guidelines. https://www.lexology.com/library/detail.aspx?g=c8ebc55b-bb06-4aa5-ae66-51aa33886cc7
Earlier this month in a piece for National Review, the director of the Competitive Enterprise Institute's Center for Technology and Innovation, said those 2023 guidelines had a chilling effect on economic prosperity and growth by interpreting antitrust law in such a way “that almost anything could run afoul of the law.”
Jessica Melugin warned that continued adherence to these guidelines could block mergers and acquisitions that would not hinder competition, ultimately hurting shareholders, consumers, and the U.S. economy as a whole.
Last year, the House Committee on Oversight and Accountability published a report entitled “The Federal Trade Commission Under Chair Lina Khan: Undue Biden-Harris White House Influence and Sweeping Destruction of Agency Norms.”
“Chair Khan has abused her authority at the agency, trampling on the due process rights of regulated parties, upending the rule of law, and violating ethics standards she is bound to uphold,” the October report stated. “The committee has found that Chair Khan has consistently betrayed the obligation of the Commission to be an independent, bipartisan agency. Rather than fulfill her obligation to ensure the commission adheres to its independent role, Chair Khan has subordinated the agency to the political will, direction and leftist ideology of the Biden-Harris administration, its allies in Congress, and activist entities.
“Finally, the committee has found that Chair Khan has resorted to means outside the FTC’s legal mandate to realize her desired ends, including through collusion with foreign regulatory regimes.”
The related House investigation found Khan had “launched an intimidation campaign” against mergers, worked to model U.S. antitrust authorities after those in Europe, made sweeping changes that resulted in vast FTC overreach, turned the FTC into “a shill for Biden-Harris 2024 election interests through commission leadership of the sham Biden-Harris ‘Strike Force on Unfair and Illegal Pricing,’” and “sidelined career FTC staff, collapsed their morale, triggered an exodus of critical employees, and destroyed career staff’s confidence in the honesty and integrity of commission leadership.”
Legal Newsline earlier reported that senior attorneys at the FTC departed under Khan at the fastest rate in decades. https://legalnewsline.com/stories/645655208-as-court-losses-mount-khan-remakes-ftc-with-like-minded-hires
After filing FOIA requests about more than 300 hires since Khan took the reins as FTC chair, Legal Newsline reported many of these hires for non-political jobs to have “strong connections to the Democratic Party and the Biden administration or progressive non-profits such as the Center for American Progress and the American Civil Liberties Union.”