Mr. Speaker, I include in the Record an article titled, ``Lina Khan's Unfair and Deceptive Approach to Antitrust.'' [From U.S. Chamber of Commerce, Sept. 20, 2022] Lina Khan's Unfair and Deceptive Approach to Antitrust (By Sean Heather) In…
Mr. Speaker, I include in the Record an article titled, ``Lina Khan's Unfair and Deceptive Approach to Antitrust.''
[From U.S. Chamber of Commerce, Sept. 20, 2022]
Lina Khan's Unfair and Deceptive Approach to Antitrust
(By Sean Heather)
In a recent speech at Fordham University, Federal Trade
Commissioner (FTC) Chair Lina Khan outlined an aggressive new
approach to the agency's competition policy. Under her
leadership, she explained, the FTC will interpret ``unfair
methods of competition'' broadly, block mergers that could
reflect an ``incipient'' trend toward monopoly, reject
efficiency defenses, and contend that ``conglomerates'' harm
consumers, irrespective of economic evidence. In Khan's view,
her agenda is ``fundamentally conservative'' because it shows
``respect for the rule of law'' as reflected in congressional
intent.
Khan's speech hearkens back to George Orwell's Ministry of
Truth, where words apparently lose all meaning. Khan's agenda
rejects the rule of law in favor of a progressive policy
agenda that grants the government total discretion to
challenge any merger for any reason whatsoever, ignoring
basic economics, history, and decades of precedent from the
Supreme Court.
Most troubling is the fact that Khan's agenda would allow
the agency to challenge any private conduct that conflicts
with progressive notions of fairness. Section 5 of the FTC
Act directs the agency to combat ``unfair methods of
competition.'' Historically, the agency has tied this
authority to what's in the consumers' economic interest,
which hews closely to the other main antitrust statutes,
namely the Sherman Act and Clayton Act. As a result, the FTC
provided Section 5 with context, guardrails, and
predictability, which are all integral to the rule of law.
Under the FTC's new leadership, however, anything goes. The
FTC's new strategic plan condemns ``unwarranted health,
safety, and privacy risks'' and seeks ``equity for
historically underserved communities.'' These issues, while
important, lie far outside the FTC's statutory authority or
competence. Yet under Chair Khan's reading of Section 5, the
FTC can do whatever it pleases. Without guardrails, for
example, the FTC could condemn as ``unfair'' a merger that
would result in job losses even if that merger would lower
costs and lead to lower prices for consumers. Congress never
envisioned the FTC to serve as the morality police over the
market.
Cherry-picking History
In fact, the last time the FTC embarked on a path of
overreach of this scope was the 1970s. As a result, the
Washington Post editorial board labeled the agency the
``National Nanny'' and Congress nearly eliminated the agency
altogether. Similarly, Chair Khan's approach conveniently
sidesteps this period of tremendous overreach and willfully
ignores the succeeding decades of precedent and economic
learning. According to her, the amendments to Section 7 of
the Clayton Act show that Congress was concerned with any
trend toward mergers and that, therefore, the agencies and
courts erred in accounting for the possibility that a merger
might increase efficiency. Khan points to Supreme Court cases
from the 1960s to support her position and, in fairness, she
is correct that in an earlier time in our history mergers
were reflexively viewed more skeptically--but that was prior
to now decades of reliance on sound economic analysis that
accompanies merger review.
Chair Khan, however, seeks to divorce economic analysis
from antitrust law. In those intervening decades, economists
came to understand that relatively few mergers actually
threaten competition, whereas most mergers, particularly
vertical mergers, have pro-competitive benefits such as
improved capital flows and greater efficiency. Across
political administrations, the antitrust agencies tailored
their enforcement activities to target those mergers that
posed a genuine risk to competition. Consistent with economic
learning and experience, the Supreme Court interpreted the
antitrust laws more permissively to allow the private sector
more freedom to operate.
By returning to the worldview prevalent in the 1960s, Chair
Khan's FTC would seriously damage the economy's dynamism. By
blocking mergers that increase concentration only slightly,
the FTC would prevent startups from obtaining the capital and
technical expertise that they need to grow and thrive. By
replacing Section 5's guardrails with amorphous standards
subject to the shifting winds of politics, the FTC would
eliminate the certainty and predictability that businesses
need to plan and invest. And by barring use of the efficiency
defense, the FTC would force companies to incur more costs to
produce the same products--costs that would be passed along
to consumers.
Mr. Speaker, I support title II of this bill, and, actually, I would vote for it if it was set up as a separate bill as it once was.
I would not support title III.
The real issue is title I and the $1.4 billion that it would provide to the Department of Justice and the FTC.
The assertion is that it would not or is not supported by the record. Let me explain, however, what has not happened that should have in order to make this $1.5 billion supportable. And what hasn't happened is we have not had Chairwoman Lina Khan appear before us in our Committee on the Judiciary. It seems odd that we wouldn't find out how this money is going to be spent before we allocate it to the purposes reflected in the Record.
Let me just read from a recent speech at Fordham University:
``Chair Lina Khan outlined an aggressive new approach to the agency's competition policy. Under her leadership, she explained, the FTC will interpret `unfair methods of competition' broadly, block mergers that could reflect an `incipient' trend toward monopoly, reject efficiency defenses, and contend that `conglomerates' harm consumers, irrespective of economic evidence. In Khan's view, her agenda is `fundamentally conservative' because it shows respect for the rule of law as reflected in congressional intent.''
To quote the U.S. Chamber of Commerce: ``Khan's speech hearkens back to George Orwell's `Ministry of Truth,' where words apparently lose all meaning. Khan's agenda rejects the rule of law in favor of a progressive policy agenda that grants the government total discretion to challenge any merger for any reason whatsoever, ignoring
basic economics, history, and decades of precedent from the Supreme Court. Most troubling is the fact that Khan's agenda would allow the agency to challenge any private conduct that conflicts with progressive notions of fairness. Section 5 of the FTC Act directs the agency to combat `unfair methods of competition.' Historically, the agency has tied this authority to what is in the consumers' economic interest, which hews closely to the other main antitrust statutes, namely the Sherman and Clayton Act. As a result, the FTC provided Section 5 with context, guardrails, and predictability, which are all integral to the rule of law.
Why didn't we have Chairwoman Khan appear before us and explain why she wants to vary so dramatically from what has been the law for the past 30 years.
``Under the FTC's new leadership, however, anything goes. The FTC's new strategic plan condemns `unwarranted health, safety, and privacy risks,' and seeks `equity for historically underserved communities.' These issues, while important, lie far outside the FTC's statutory authority or competence. Yet under Chair Khan's reading of Section 5, the FTC can do whatever it pleases. Without guardrails, for example, the FTC could condemn as `unfair' a merger that would result in job losses even if that merger would lower costs and lead to lower prices for consumers.''
Mr. Speaker, this is a bill whose time is not right. We don't know how the money is going to be spent, and I urge a ``no'' vote.