The Senate on Tuesday voted 69-28 to confirm progressive Columbia University law professor
as a Federal Trade Commissioner. But some Republicans who voted for her may have regrets after President
broke political norms and quickly named her as the new chair.
Ms. Khan is a leader in the “hipster” or neo-Brandeis school of antitrust. These progressives want to scrap the consumer-welfare standard that
helped develop in the 1970s. They believe antitrust law should focus on business size rather than how its conduct or acquisitions affect consumers.
In a 2017 Yale Law Journal article, “Amazon’s Antitrust Paradox,” Ms. Khan argued that the “consumer welfare” standard is “unequipped to capture the architecture of market power in the modern economy.” Amazon, she said, increased its dominance by charging lower prices and growing its business, thereby undercutting competitors.
Amazon and other tech giants deserve antitrust scrutiny for some of their business practices, such as Amazon’s dominance in e-books. But that e-book dominance was abetted by a Justice antitrust suit that undermined competition from
Killing the consumer-welfare standard would punish companies for reducing prices and innovating.
Some Republicans, frustrated by how companies have silenced conservatives, voted to confirm Ms. Khan to send a message. Yet they may not have done so had they known Ms. Khan would lead the agency. It’s de rigueur for a President when nominating members to independent agencies to announce at the same time if someone will serve as chair.
Mr. Biden didn’t, probably because he was worried it would jeopardize Ms. Khan’s confirmation. The FTC chair has considerable power to control hiring, direct investigations, set the agenda and other key functions. Every chairperson for the past 25 years has had prior administrative experience at the FTC. Ms. Khan has none.
The President appears to have hoodwinked Senate Republicans to install an unqualified 32-year-old progressive in a position with enormous power over business. House Democrats last week introduced several bills that would augment the FTC’s power, especially to pursue Big Tech. Mr. Biden has given Senate Republicans another reason not to give the agency more power.
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