WASHINGTON — She has been called a deal killer, an anti-capitalist and even a giant slayer.
But as one of the Biden administration’s main antitrust enforcers, Lina Khan, chair of the Federal Trade Commission (FTC), said her main goal is to protect free and fair competition and to show consumers that there are still “cops on the beat” that are fighting to protect them from private coercion and abuses of monopoly power.
“We need to make sure we have the right feedback loops in place to be understanding how the work that our agencies are doing are affecting people out there in the real world,” she said during a conversation hosted by the Brookings Institution on Thursday.
The conversation featured both Khan and Jonathan Kanter, assistant attorney general of the antitrust division at the Department of Justice (DOJ). Khan and Kanter have been the two key players driving President Biden’s assertive agenda on antitrust enforcement and competition policy.
While the FTC and DOJ enforce antitrust laws in different ways—the DOJ has the power to bring criminal charges—the two agencies work together, and Khan and Kanter have both taken an aggressive stance on antitrust enforcement. Since being appointed in 2021, they have worked together to toughen merger enforcement, revitalize criminal antitrust enforcement and challenge big tech industries.
Just last month, the FTC filed a landmark antitrust lawsuit against Amazon, alleging that the company is illegally abusing its monopoly power by forcing sellers into costly fees and punishing them for offering lower prices on other websites.
Bill Baer, who previously held Kanter’s position at the DOJ under the administration of President Obama, moderated Thursday’s conversation. He praised the two as “prolific contributors to the antitrust debate” and said they were appointed by Biden to be “game changers.”
Khan, however, said she isn’t trying to change the game. Rather, she said that she sees her work as “law enforcement”—not making new laws, but enforcing what already exists. She delved into history to discuss her work.
“One of the things that we’ve been doing at the FTC is really going back to the statutes, including Section Five of the FTC Act, and trying to understand, what was Congress’s goal in writing this?” she said, referring to the law passed in 1914. “We have to make sure that, across our enforcement, we are being entirely faithful to the text of the statutes and to the legal precedent that’s on the books.”
Through this careful analysis, Khan and Kanter realized that many merger guidelines were outdated.
So, in June, the FTC and DOJ proposed an expansion and revision of premerger reporting requirements. Khan said this rewrite helps “mitigate blind spots on the front end” because prior reporting requirements did not give the antitrust screeners enough information to determine if mergers would be problematic.
The following month, the FTC and DOJ proposed new merger guidelines. The guidelines present a much more expansive approach to merger enforcement by lowering the standards by which the two agencies will presume a merger is “substantially likely” to lessen competition. This means a much higher level of scrutiny when screening potential mergers. The guidelines are meant to protect consumers, create a fair playing field for small businesses and prevent unrestrained corporate power.
Kanter said the merger guideline rewrite is important because “the world has changed,” and prior guidelines no longer aligned with today’s competitive market.
“There are lots of different ways in which competition presents itself, and by organizing the guidelines around the realities of the market, it makes certain that we don’t miss those market realities as we enforce the law,” he said.
These merger guidelines were released to the public for feedback through Sept. 18. Khan and Kanter said they are still reading through the over 4,000 comments they received and are working as quickly as they can to finalize the guidelines. Both emphasized the importance of listening directly to the concerns and suggestions of those most directly affected by consolidations and mergers.
“These merger guidelines are going to be really important for us from an enforcement perspective, but they are also part of this broader exercise to make sure we’re fully serving the public,” Khan said.
Khan and Kanter said they are proud of the work they have accomplished since taking on their roles at the FTC and the DOJ, but that there is still lots of work to be done.
“When we talk about the ability to get a job, we’re talking about the American Dream—the ability to start from nothing and grow to provide opportunities to your children…These are real things that affect real people,” Kanter said. “These are exactly why the antitrust laws exist. We have an obligation to make sure that we are protecting competition, and that we are enforcing antitrust laws to preserve all of the benefits of competition.”
