The Wrath of Khan Is Upon Us

Sen. Lee: Promises Ambiguity During Fragile Economic Recovery

Photo Credit: Associated Press

Lina Khan’s announcement that the Federal Trade Commission will vote within days to rescind a 2015 policy statement upholding the agency’s commitment to the Consumer Welfare Standard is as about as surprising as a wolf suddenly devouring a lamb. Who knew they did that?
 
With opposition from only two Republican commissions, the stripping of this standard –under which the United States has prospered for almost half-a-century – should be almost pro forma. Scratch the “almost.” Chair Khan is allowing public comment, but only after the vote is held.
 
It will then be up to courts to act as the bulwark that upholds the position of the Consumer Welfare Standard in antitrust law.
 
Commissioner Noah Phillips tweeted that this and other items on Khan’s ambitious agenda will “reduce clarity in law, limit public understanding of rulemaking, and remove commission oversight of decisions that impose substantial costs on the agency and businesses alike.”

Republican Sen. Mike Lee said, “Should the FTC rescind the statement, it will replace clarity with ambiguity in the midst of a fragile economic recovery. Rescinding the statement would also signal that the commission rejects the idea that there are any limits to its power or regulatory reach.”
 
Sen. Lee notes that the 2015 policy statement occurred under the Obama Administration, and that the Biden Administration would do well to focus on a bipartisan approach to antitrust.
 
My take is that there is no room for bipartisanship in antitrust for the foreseeable future. Conservative anger over Big Tech content decisions are best considered in adjustments to Section 230 that would require more transparency and an appeals process.