Once Again: Is Lina Khan Winning by Losing?

May 7, 2024

J. Howard Beales III, former director of the Bureau of Consumer Protection, and Timothy J. Muris, former Federal Trade Commission chairman, take Lina Khan to task in The Wall Street Journal for bad management, poor strategy, and disregard for norms.

“While the commission is certainly active, promulgating rules and filing lawsuits, the painstaking organization and planning necessary to make its efforts permanent are nowhere to be found,” Beales and Muris write. “As legendary basketball coach John Wooden said, ‘Never mistake activity for achievement.’”

They’ve written an engaging piece, recounting the smash-mouth treatment of the FTC’s professional staff, and how they were shut up and isolated from policy-making. I question, however, whether Beales and Muris are correct about Chair Lina Khan being all activity and no achievement. Yes, Khan has been kicked to the curb several times in court. But in this election year, as the FTC and Justice Department Antitrust Division plaster the business world with antitrust investigations and complaints, a novel strategy appears to be in play.

To overturn the consumer welfare standard, Khan only has to get lucky once. If she can find the right judge, she will have succeeded in embedding a progressive precedent in law. And with the almost total progressive takeover of top law schools, there will soon be no end of judges to ratify the most extreme interpretations of antitrust law. In the meantime, the sheer weight of DOJ/FTC filings are cowing businesses. They are bringing C-suites exactly where progressive antitrusters want them – in the constant thrall of government.

That may be bad antitrust policy, but it’s a shrewd, if unprincipled, election-year use of the law.