While FTC’s Khan Draws the Fire, DOJ’s Kanter Advances Radical Agenda

COMMENTARY | By Robert H. Bork, Jr. | August 29, 2023

Mention progressive antitrust in Washington, and the discussion turns to Lina Khan – who rose in half a decade from Yale Law School student to become the most powerful, and controversial, Federal Trade Commission chair in history.

After courts tossed out four major FTC antitrust cases in a row, Rep. Kevin Kiley, a California Republican, asked Khan, “Why are you losing so much?” When the Biden administration rejected the standard that antitrust cases are about consumers, and instead reoriented enforcement along social justice lines, former FTC Commissioner Christine Wilson wrote that Khan was in the thrall of Marxism.

Almost wholly unnoticed amid these fireworks is Jonathan Kanter, head of the Department of Justice Antitrust Division, which shares the antitrust portfolio with FTC. While Khan taunts and dodges like a rodeo clown, Kanter operates with low-key effectiveness. Where Khan fits Washington’s idea of “hipster antitrust,” Kanter tells podcast journalists that if they could see his hairline, they’d know he’s no hipster. Where Khan was a star student at Yale Law, Kanter shined at the solid Washington University law school in St. Louis.

In large measure due to Kanter’s leadership, antitrust has become one of the five pillars of the president’s economic platform.

While Khan’s shop accuses companies of endangering future competition – a trope often ridiculed as a “precrime” approach to antitrust – Kanter’s shop speaks soberly of “risk assessment.” Kanter calmly describes why replacing the governing consumer welfare standard, in which mergers and acquisitions are judged by their impact on consumers, is necessary because that standard is a “cost-benefit analysis” that has failed to protect workers and competitors.

While Khan racked a string of losses in court, Kanter and his 800-person team have scored some victories, blocking a mega-merger in publishing, and stopping a partnership between American Airlines and JetBlue.

Kanter represents his antitrust philosophy in a winsome way, speaking in terms of keeping a modern economy competitive, and upholding democracy by using antitrust “and a whole of government of approach” to break up “choke points” in the economy. He wants to protect small businesses where so many get their start through “freedom of opportunity.”

Where Khan visibly struggles to restrain her inner ideologue, Kanter comes across as reasonable, pragmatic, and idealistic at the same time. In a word: reassuring. But Kanter’s policies are just as radical and economically destructive as Khan’s. While the bulls chase Khan around the arena, Kanter impresses the rodeo judges with his expert roping, delivering some of the most radical and unhinged economic policies in American history (and that’s saying a lot).

Consider the recent 13 draft antitrust guidelines that Kanter put out with Khan.

Two economists from the Obama administration, Jason Furman and Carl Shapiro, took to the Wall Street Journal to raise questions, diplomatically, about the new rules: “As we read this guideline, many nonhorizontal deals that enable the acquiring firm to become more efficient, and thus gain market share or compete more effectively in adjacent markets, would be considered illegal even if they benefit consumers and workers.” This is an important observation. Efficiency generates wealth in the form of lower prices and better wages. But this seems to matter not to Kanter and Khan.

Furman and Shapiro were also surprised that the Kanter-Khan merger guidelines rest on the long-discredited Brown Shoe decision. This 1962 Supreme Court opinion found a proposed merger to be illegal, even though the combined company would have controlled as little as 5% of the market. As my father, Judge Robert Bork, wrote about Brown Shoe, this opinion was predicated on the mistaken and ultimately disproven belief that Congress intended antitrust law to protect “small, locally owned businesses” over the interests of consumers. For this reason courts had long treated Brown Shoe as a piece in the museum of legal curiosities. Now it is revised by Kanter’s and Khan’s merger guidelines as a guiding precedent.

Worse, the Kanter-Khan guidelines are both expansive and vague, allowing the government to keelhaul any executive and any business at any time. That’s the point. It puts all business under the thumb of regulators.

Economist Dan Mitchell, after reviewing these guidelines, wrote: “Thanks to politicians, companies can be accused of improper behavior regardless of what they do. If they charge more than their competitors, they are guilty of monopolistic behavior. If they charge the same, then they are colluding with competitors. If they charge less, then they are using predatory pricing to drive out competition.”

Kanter’s and Khan’s rules will enhance the power of government over the market, making everything private subordinate to Washington. That is why Christine Wilson declared that progressive antitrust is Marxist at its roots. That is the agenda being driven by the Department of Justice under Jonathan Kanter – not a hipster, but decidedly a radical.

Robert H. Bork Jr. is president of the Antitrust Education Project. 

Originally published at Real Clear Politics.