Federal Trade Commission (FTC) Chair Lina Khan’s Sept. 22 memorandum to FTC commissioners and staff—entitled “Vision and Priorities for the FTC” (VP Memo)—offers valuable insights into the chair’s strategy and policy agenda for the commission. Unfortunately, it lacks an appreciation for the limits of antitrust and consumer-protection law; it also would have benefited from greater regulatory humility. After summarizing the VP Memo’s key sections, I set forth four key takeaways from this rather unusual missive.
The VP Memo begins appropriately enough, with praise for commission staff and a call to focus on key FTC strategic priorities and operational objectives. So far, so good. Regrettably, the introductory section is the memo’s strongest feature.
The VP Memo’s first substantive section, which lays out Khan’s strategic approach, raises questions that require further clarification.
This section is long on glittering generalities. First, it begins with the need to take a “holistic approach” that recognizes law violations harm workers and independent businesses, as well as consumers. Legal violations that reflect “power asymmetries” and harm to “marginalized communities” are emphasized, but not defined. Are new enforcement standards to supplement or displace consumer welfare enhancement being proposed?
Second, similar ambiguity surrounds the need to target enforcement efforts toward “root causes” of unlawful conduct, rather than “one-off effects.” Root causes are said to involve “structural incentives that enable unlawful conduct” (such as conflicts of interest, business models, or structural dominance), as well as “upstream” examination of firms that profit from such conduct. How these observations may be “operationalized” into case-selection criteria (and why these observations are superior to alternative means for spotting illegal behavior) is left unexplained.
Third, the section endorses a more “rigorous and empiricism-driven approach” to the FTC’s work, a “more interdisciplinary approach” that incorporates “a greater range of analytical tools and skillsets.” This recommendation is not problematic on its face, though it is a bit puzzling. The FTC already relies heavily on economics and empirical work, as well as input from technologists, advertising specialists, and other subject matter experts, as required. What other skillsets are being endorsed? (A more far-reaching application of economic thinking in certain consumer-protection cases would be helpful, but one suspects that is not the point of the paragraph.)
Fourth, the need to be especially attentive to next-generation technologies, innovations, and nascent industries is trumpeted. Fine, but the FTC already does that in its competition and consumer-protection investigations.
Finally, the need to “democratize” the agency is highlighted, to keep the FTC in tune with “the real problems that Americans are facing in their daily lives and using that understanding to inform our work.” This statement seems to imply that the FTC is not adequately dealing with “real problems.” The FTC, however, has not been designated by Congress to be a general-purpose problem solver. Rather, the agency has a specific statutory remit to combat anticompetitive activity and unfair acts or practices that harm consumers. Ironically, under Chair Khan, the FTC has abruptly implemented major changes in key areas (including rulemaking, the withdrawal of guidance, and merger-review practices) without prior public input or consultation among the commissioners (see, for example, here)—actions that could be deemed undemocratic.
The memo’s brief discussion of Khan’s policy priorities raises three significant concerns.
First, Khan stresses the “need to address rampant consolidation and the dominance that it has enabled across markets” in the areas of merger enforcement and dominant-firm scrutiny. The claim that competition has substantially diminished has been critiqued by leading economists, and is dubious at best (see, for example, here). This flat assertion is jarring, and in tension with the earlier call for more empirical analysis. Khan’s call for revision of the merger guidelines (presumably both horizontal and vertical), in tandem with the U.S. Justice Department (DOJ), will be headed for trouble if it departs from the economic reasoning that has informed prior revisions of those guidelines. (The memo’s critical and cryptic reference to the “narrow and outdated framework” of recent guidelines provides no clue as to the new guidelines format that Chair Khan might deem acceptable.)
Second, the chair supports prioritizing “dominant intermediaries” and “extractive business models,” while raising concerns about “private equity and other investment vehicles” that “strip productive capacity” and “target marginalized communities.” No explanation is given as to why such prioritization will best utilize the FTC’s scarce resources to root out harmful anticompetitive behavior and consumer-protection harms. By assuming from the outset that certain “unsavory actors” merit prioritization, this discussion also is in tension with an empirical approach that dispassionately examines the facts in determining how resources should best be allocated to maximize the benefits of enforcement.
Third, the chair wants to direct special attention to “one-sided contract provisions” that place “[c]onsumers, workers, franchisees, and other market participants … at a significant disadvantage.” Non-competes, repair restrictions, and exclusionary clauses are mentioned as examples. What is missing is a realistic acknowledgement of the legal complications that would be involved in challenging such provisions, and a recognition of possible welfare benefits that such restraints could generate under many circumstances. In that vein, mere perceived inequalities in bargaining power alluded to in the discussion do not, in and of themselves, constitute antitrust or consumer-protection violations.
The closing section, on “operational objectives,” is not particularly troublesome. It supports an “integrated approach” to enforcement and policy tools, and endorses “breaking down silos” between competition (BC) and consumer-protection (BCP) staff. (Of course, while greater coordination between BC and BCP occasionally may be desirable, competition and consumer-protection cases will continue to feature significant subject matter and legal differences.) It also calls for greater diversity in recruitment and a greater staffing emphasis on regional offices. Finally, it endorses bringing in more experts from “outside disciplines” and more rigorous analysis of conduct, remedies, and market studies. These points, although not controversial, do not directly come to grip with questions of optimal resource allocation within the agency, which the FTC will have to address.
Evaluating the VP Memo: 4 Key Takeaways
The VP Memo is a highly aggressive call-to-arms that embodies Chair Khan’s full-blown progressive vision for the FTC. There are four key takeaways:
- Promoting the consumer interest, which for decades has been the overarching principle in both FTC antitrust and consumer-protection cases (which address different sources of consumer harm), is passé. Protecting consumers is only referred to in passing. Rather, the concerns of workers, “honest businesses,” and “marginalized communities” are emphasized. Courts will, however, continue to focus on established consumer-welfare and consumer-harm principles in ruling on antitrust and consumer-protection cases. If the FTC hopes to have any success in winning future cases based on novel forms of harm, it will have to ensure that its new case-selection criteria also emphasize behavior that harms consumers.
- Despite multiple references to empiricism and analytical rigor, the VP Memo ignores the potential economic-welfare benefits of the categories of behavior it singles out for condemnation. The memo’s critiques of “middlemen,” “gatekeepers,” “extractive business models,” “private equity,” and various types of vertical contracts, reference conduct that frequently promotes efficiency, generating welfare benefits for producers and consumers. Even if FTC lawsuits or regulations directed at these practices fail, the business uncertainty generated by the critiques could well disincentivize efficient forms of conduct that spark innovation and economic growth.
- The VP Memo in effect calls for new enforcement initiatives that challenge conduct different in nature from FTC cases brought in recent decades. This implicit support for lawsuits that would go well beyond existing judicial interpretations of the FTC’s competition and consumer-protection authority reflects unwarranted hubris. This April, in the AMG case, the U.S. Supreme Court unanimously rejected the FTC’s argument that it had implicit authority to obtain monetary relief under Section 13(b) of the FTC Act, which authorizes permanent injunctions – despite the fact that several appellate courts had found such authority existed. The Court stated that the FTC could go to Congress if it wanted broader authority. This decision bodes ill for any future FTC efforts to expand its authority into new realms of “unfair” activity through “creative” lawyering.
- Chair Khan’s unilateral statement of her policy priorities embodied in the VP Memo bespeaks a lack of humility. It ignores a long history of consensus FTC statements on agency priorities, reflected in numerous commission submissions to congressional committees in connection with oversight hearings. Although commissioners have disagreed on specific policy statements or enforcement complaints, general “big picture” policy statements to congressional overseers typically have been by unanimous vote. By ignoring this tradition, the VP Memo departs from a longstanding bipartisan tradition that will tend to undermine the FTC’s image as a serious deliberative body that seeks to reconcile varying viewpoints (while recognizing that, at times, different positions will be expressed on particular matters). If the FTC acts more and more like a one-person executive agency, why does it need to be “independent,” and, indeed, what special purpose does it serve as a second voice on federal antitrust matters? Under seeming unilateral rule, the prestige of the FTC before federal courts may suffer, undermining its effectiveness in defending enforcement actions and promulgating rules. This will particularly be the case if more and more FTC decisions are taken by a 3-2 vote and appear to reflect little or no consultation with minority commissioners.
The VP Memo reflects a lack of humility and strategic insight. It sets forth priorities that are disconnected from the traditional core of the FTC’s consumer-welfare-centric mission. It emphasizes new sorts of initiatives that are likely to “crash and burn” in the courts, unless they are better anchored to established case law and FTC enforcement principles. As a unilateral missive announcing an unprecedented change in policy direction, the memo also undermines the tradition of collegiality and reasoned debate that generally has characterized the commission’s activities in recent decades.
As such, the memo will undercut, not advance, the effectiveness of FTC advocacy before the courts. It will also undermine the FTC’s reputation as a truly independent deliberative body. Accordingly, one may hope that Chair Khan will rethink her approach, withdraw the VP Memo, and work with all of her fellow commissioners to recraft a new consensus policy document.