Right after Lina Khan was confirmed to a seat on the Federal Trade Commission, the Biden administration announced that (surprise!) she would chair the agency. This bait-and-switch was a shameless breaking of norms—and a sign of things to come. Khan wanted to shake things up. Not unlike one of her Big Tech nemeses, Mark Zuckerberg, she wanted to move fast and break things. And that’s what she did. But her time is up. Now that her tenure as chair is about to end, we can start assessing the wreckage. How much damage has Khan done? Fortunately, less than you might think.
The simple truth is that Khan wasn’t very good at her job. She broke things that she needed. She could and should have viewed the FTC’s career attorneys—most of them, presumably, Biden voters—as allies in her quest for more aggressive antitrust enforcement. But as FTC veterans Howard Beales and Timothy Muris write, “the new Chair’s relationship with the career staff began with a series of insults.” Khan stood by President Biden’s side as he maligned their work. She ordered them to cancel all public speaking engagements. She elevated individuals from the office of outgoing commissioner Rohit Chopra—who approached the agency and its personnel with immense disdain—into key positions. At meetings, she reportedly criticized the agency in fulsome terms. Khan treated staff as “part of the problem.” Morale cratered, and many experienced employees rushed for the exits.
Distrusting her own agency, Khan inevitably mismanaged it. “A long tradition of frequent senior staff meetings with the Chair was suspended,” Beales and Muris heard from inside sources, “and then replaced with less frequent meetings that were predominantly one-way communication.” In a damning report based on extensive staff interviews, the House Judiciary Committee notes that Khan had a penchant for making “broad, lofty statements that could not be translated effectively into actionable direction.” Her FTC-wide directives were vague and turgid. She micromanaged the agency, turning her office into a bottleneck as items awaiting her approval piled up. One manager complained of a “catastrophic communication breakdown.”
When she wasn’t dismantling the FTC’s operational norms, Khan was flouting ethics rules. At her confirmation hearing, she pledged to follow the advice of the FTC’s “relevant ethics officials.” When Meta later petitioned Khan to recuse herself from a proceeding against it—it was clear, from her past statements, that she would not seriously consider ruling for the company—the “relevant ethics official” issued a memo recommending that she sit the case out. Yet in a move that not only broke her vow to the Senate but was also apparently without precedent, Khan disregarded the official’s advice. Later, she tried to deceive Congress about it.
Khan couldn’t set priorities. Her team kept “add[ing] more to our plates,” one person complained, without “mak[ing] hard decisions about taking anything off,” an approach that left staff “crushed.” This is another sign of bad administration. It also suggests that the commissioner had no strategy.
Despite her scattershot leadership style, Khan did have a clear mission: upending the consumer-welfare standard. For decades, the standard has required courts and regulators to train their attention on corporations that abuse monopoly power (or seek to obtain it via merger) in a way that stifles efficient competition. This narrow focus ensures that antitrust law promotes low prices, high product quality, and market innovation. But Khan attacked consumer welfare in ways large and small. Within days of assuming office, she shredded an FTC policy statement that had endorsed it. She brought enforcement actions that tried to evade the standard or to expand it beyond recognition. She strove to make it as hard as possible for any merger, regardless of consumer benefit, to move through the agency’s review process. On her watch, the FTC colluded with European regulators to block deals, and claimed, implausibly, that it had the authority to write its own antitrust rules.
Despite her ambitions, Khan’s commissionership has produced few victories or lasting changes. Her most aggressive lawsuits and rulemakings were shot down by a judicial branch that still adheres to the consumer-welfare standard, exposing the agency to a string of stinging, high-profile defeats. Plainly, Khan never had a plan for dealing with an uncooperative judiciary that doesn’t share her radicalism. As for her internal changes at the agency, most can be repealed as easily as they were imposed. Her effort to turn the agency’s merger-review process into a bog of delay and uncertainty can, as Beales and Muris observe, be reversed immediately.
Fresh out of law school, Khan advised Congress on the need for stiffer antitrust legislation. She seems to have arrived at the FTC expecting such legislation to follow behind her, giving her the tools needed to shackle the tech industry and the wider economy. When no such legislation appeared, she was adrift. There was no Plan B, beyond aggressive but flimsy measures, splashy interviews, and futile but headline-grabbing court cases.
The media celebrated and glorified Khan. They were quick to dismiss criticism of her as racism, sexism, and the whining of billionaires. They were happy to overlook her mistakes, her various shortcuts, and her bad behavior. They depicted her as a hero. Though she made some enemies among Democrats, Khan probably would have hung on as chair in a Kamala Harris administration. Her transgressions and evasions, and those made on her behalf, would have continued—starting, perhaps, with the bothersome constitutional requirement of advice and consent. Khan’s term expired several weeks ago, but she can keep working until she is replaced. Progressives were reportedly arguing that, in the event of a Harris win and a GOP-controlled Senate, Khan should remain in place, without reconfirmation, indefinitely. Happily, this is one unprecedented step that the sitting FTC chair will not get to take.
“Khan’s work could reshape our laws and realign our politics for decades to come,” Bloomberg fawned only a month ago. But “[c]ritics,” the article was careful to add, “say this is wishful thinking.” Indeed. Khan set out to be a trustbuster beyond compare. She’s likely to go down as a norm-buster instead.
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