Is One Antitrust Agency a Good Idea?

November 20th, 2023

When Rep. Mike Johnson became speaker, it unleashed a furious search by the media, lobbyists, and political researchers to unearth every position the Louisiana Congressman has ever taken. What has been Rep. Johnson’s position on tax reform? On defense spending? On high school students who stick chewed bubble gum under their desks?

Issue archeology has finally cut down to a deep layer (April 30, 2021, which is the Upper Cretaceous in terms of Washington’s memory) showing that Rep. Mike Johnson introduced into the House the “One Agency Act.” This bill would put all federal antitrust enforcement under one roof, the Department of Justice Antitrust Division.

Rep. Johnson said at the time that the One Agency Act would clarify “jurisdiction and increasing accountability.”

This makes sense, at least superficially. Currently the DOJ Antitrust Division and the Federal Trade Commission must grant each other “clearance” before the other agency can open an investigation. This leads to turf battles and, as Sen. Mike Lee of Utah has noted, one such turf battle was settled by a coin toss.

“Every year government lawyers spend hundreds of hours managing these fights, wasting taxpayer money and delaying enforcement of the antitrust laws that protect American consumers,” Sen. Lee said in 2020. “This is no way to run a government.”

Worse, Mike Lee noted, the two agencies often agree to split up certain key industries. “This avoids waste, but it also creates risk of antitrust enforcement varying between industries. The strength of antitrust enforcement should not hinge on a coin toss or a backroom deal.”

With the ascent of Rep. Johnson to the post of Speaker of the House, will the One Agency Act stand a chance of becoming law? It certainly has a chance to get widespread backing if Speaker Johnson decides to put muscle behind it. But should it become law?

Nothing would please critics of progressive antitrust more than for Congress to snatch FTC Chair Lina Khan’s antitrust authority from her like a stolen lunch tray. On the other hand, the virtue of the FTC is that – under a normal Chair – the agency relies on the sound advice of its 80 economists on the state of the market and consequences of regulation.

Insiders tell us that FTC economists are ignored by Khan who personally despises the dismal science. Worse, Khan has swept aside the FTC’s sophisticated system of debate and the vetting of ideas, centralizing power in the Office of the Chair and keeping dissenting views and data away from Republican Commissioners.

All true. But even in this Politburo-like system, Republican Commissioners can still issue public dissents and work – as former Commissioner Christine Wilson did – to expose the machinations of the Office of the Chair. If a traditionalist were to be appointed Chair and enact a restoration, the other virtues of the FTC system would be restored.

Under the One Agency Act, Antitrust Chief Jonathan Kanter would have no dissenting commissioners to expose his actions. On the other hand, as Sen. Lee has noted, DOJ is an executive agency with some accountability to the voting public.

So pick your poison. Given this choice, I would go with the One Agency Act. Who knows if the professionalism and expertise of the FTC will ever recover from Lina Khan’s era of misrule. There seems to be a better chance that in the future the Department of Justice will be less radical, and hue closer to the law and to the long-standing judicial application of the consumer welfare standard.