As the Biden administration forms an antitrust agenda, the make-up of the five-member Federal Trade Commission will help determine its enforcement priorities.
President Joe Biden is expected to nominate Lina Khan to the agency, a move that would help replace current commissioner Rohit Chopra, Biden’s nominee to head the Consumer Financial Protection Bureau. Khan, a Columbia Law School professor who has advised the U.S. House Judiciary’s antitrust subcommittee and Chopra’s office, has dedicated scholarship to the business models and organization of tech companies, including Apple, Amazon and Facebook.
If Khan is indeed nominated and confirmed, her work scrutinizing Big Tech’s consolidation and operations would help inform how the FTC reviews merger activities across industries, antitrust experts said.
“Lina Khan’s expected nomination to the FTC certainly signals a continued focus on Big Tech issues, which we’ve seen across the board for a while,” said Maureen Ohlhausen, a former commissioner and former acting chairman of the FTC. Ohlhausen currently chairs the antitrust practice at Baker Botts LLP.
“It’s an interesting time, and I think one of the underappreciated things is that [antitrust reform] could sweep far more broadly than just tech,” Ohlhausen added. “If changes happen, it would have a wider impact.”
In a 2019 Columbia Law Review paper, Khan explored the integration of e-commerce marketplaces on major tech platforms, writing that “this structure places dominant platforms in direct competition with some of the businesses that depend on them, creating a conflict of interest that platforms can exploit to further entrench their dominance, thwart competition and stifle innovation.”
“She’s a populist, and she has a view of using antitrust laws aggressively to challenge aggregations of economic and political power,” said Doug Melamed, a professor at Stanford Law School and a former acting chief of the Department of Justice’s antitrust division. “But what the commission can do in the area of antitrust enforcement will be constrained by the courts and legal precedent.”
The FTC, which has five members, currently has two vacancies, and nominees to the agency would require approval by the Senate Commerce Committee and then a full Senate vote. Biden would also need to pick a permanent chair for the agency, which is currently helmed by acting FTC chair Rebecca Slaughter.
The composition of the agency wouldn’t impact the day-to-day aspects of ongoing litigation, including the FTC’s suit in December against Facebook over its acquisition of the apps Instagram and WhatsApp. But the commissioners could have a say on bigger decisions involved in the case, including any settlement talks down the road or decisions about appealing any rulings.
However, the views of any one FTC commissioner also don’t necessarily reflect the administration’s overall antitrust stance, only that the administration believes those views should be represented on the agency, experts said.
“It’s important to remember that the commission is an independent five-member body, and all of the agency’s actions must be voted by a majority of the commission,” said Kathleen Benway, partner at Alston & Bird LLP, and a former chief of staff at the FTC’s Bureau of Consumer Protection.
“Assuming that Ms. Kahn is nominated and confirmed, she would be just one of those five voices,” she added. “Nonetheless, we can expect her to continue to be vocal in her criticism of Big Tech, and her views are likely to gain traction with her fellow Democratic commissioners.”