Politico Lacerates Kanter and Khan

September 19th, 2023

Ankush Khardori has a brilliant – and lacerating piece – in Politico about the Jonathan Kanter-Lina Khan progressive antitrust revolution, and the 13 merger guidelines the Department of Justice antitrust chief and Federal Trade Commission Chair released in July.

Khardori lists a long line of critiques from court opinions of Kanter’s failed antitrust cases in healthcare technology, agriculture, and defense. Courts found that DOJ was spinning speculative fantasies, unmoored from market realities. The same could go double for Khan’s four major court losses in antitrust. Now with the new merger guidelines, Khardori writes, DOJ and FTC are making a “bid to will into existence” new law that courts explicitly reject. He writes that the merger guideline document:

“ … resembles a large and self-serving grab bag for antitrust enforcers to search through in order to pick and choose ways to prevent mergers from going through. And it provides further evidence to support the position that many skeptics of the progressive antitrust reform movement have long held – that Kanter, Khan and their cohort are so opposed to business concentrations on grounds of political ideology that they are almost totally indifferent to the ways in which ordinary Americans might benefit from transformation in the modern economy.”

Khardori’s take on the guideline for vertical mergers is equally brutal, which “never suggests that the effects on consumers (good or bad) should merit any consideration … Under the circumstances, it is hard to read this section as anything more than an effort to make it easier for the government to win these cases when they want to.”

Khardori skewers Kanter’s boast that the hyper-aggressive policies of the Biden Administration have slowed down M&A activity.

“The problem with this sentiment is that the government is currently obtaining its leverage by exploiting the costs of investigation and litigation on private parties rather than credibly establishing a deterrent in the courts through targeted and successful litigation that generates support from the judiciary.”

Ouch. Overall, Khardori – a former Justice Department official himself – makes the case that in Kanter and Khan, policy is marred by ideology and enforcement is undermined by slapdash litigation. Khan in particular is getting a reputation in Washington as unprepared loser. This likely explains the delays in Lina Khan’s release of her opus – her pending Amazon antitrust suit – in an effort to anticipate how the next court might kick her case to the curb.