A group of former staff members at the Federal Trade Commission has slammed the agency as overreaching and breaching norms.
The coalition of former FTC staff members released the letter on Tuesday criticizing FTC Chairwoman Lina Khan, a top liberal proponent of aggressive antitrust action against big businesses, as undercutting the agency and harming its credibility.
“The agency seems to be moving away from some of these norms and … these changes may undermine the agency’s credibility to enforce the law and to protect consumers,” the former staff members argued in the letter, a copy of which was sent to the Washington Examiner. “In the worst case, with ongoing scrutiny of administrative agencies, a departure from these norms could imperil long-term support for the agency itself.”
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The FTC is under added scrutiny under Khan, who has sought to reposition it as much more adversarial toward mergers and acquisitions and has seen high staff turnover. The agency’s recent ruling against Meta over its acquisition of a VR fitness app developer caused some concern due to uncertainty around the ruling. The decision was made despite resistance from staff over the legitimacy of the case.
Khan is a leader in the “hipster antitrust” movement, which aims for greater scrutiny of big businesses and anti-competitive behavior. Khan earned a following in the tech policy world during her time as a student at Yale Law School in 2017 thanks to an article, “Amazon’s Antitrust Paradox,” in which she argued the traditional benchmark of whether a company had a monopoly, higher prices, did not account for what she called anti-competitive behavior on behalf of the retail giant. This approach is contrary to the consumer welfare standard, which had dominated in antitrust policy for four decades.
The former staff members recommended that the FTC uphold “the tradition of meaningful consultation among the agency’s staff, stakeholders, and all commissioners,” ensure that its expressions of power are within the statutory text of historical standards, and “not base a significant action, such as a rulemaking, on a thin statutory reed that lacks a consistent history of use.”
If the FTC does continue to overstep its authority, the authors note, then Congress could revisit the agency’s authority, as it did in the 1980s after critics labeled the commission the “national nanny.”
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The letter’s signatories include several former attorneys at the agency, former leaders from the Office of Policy Planners, and the former executive director of the Bureau of Consumer Protection.
