When the Federal Trade Commission decides on pursuing antitrust enforcement, the process should be methodical and based on evidence. In fact, it should perhaps even be boring and dry work. Done properly, the agency should apply intensive and fact-specific analysis to an extensive statutory and jurisprudential tradition, weaving together hard data, economics, and the law — not sentiment or vibes.

Today’s FTC has discarded this tradition, as its dubious legal theorizing and radical policy documents show. Under its radical Biden-appointed chair, Lina Khan, the agency has embraced the neo-Brandeisian philosophy (named for famous trustbuster Louis Brandeis) of antitrust, which favors aggressive economic interventions.

The agency’s recent suit against Amazon, in which it alleges that the company illegally maintains two monopolies, provides a case study in the agency’s current deterioration. The FTC is targeting Amazon’s incentives for third-party vendors to sell on its platform at lowest-offered prices and to fulfill orders quickly. Vendors that offer lower prices elsewhere online become ineligible for promotion in Amazon’s “ Featured Offer ” function (once called “Buy Box”), and those that cannot guarantee Prime-quality shipping services do not receive the “ Prime badge .”

As Amazon summarized succinctly in a recent court filing , the FTC “labels these practices ‘anticompetitive,’ but the facts alleged rebut that epithet.” In fact, both practices promote obvious consumer benefits : cheap prices and reliably quick product delivery. Moreover, both foster customer trust in products the marketplace chooses to promote.

Considering the economic data, the FTC’s charge that Amazon’s conduct has inflated prices internetwide seems odd. As reported by economist Arthur Laffer, online prices decreased 14% from 2014 to 2022, while the consumer price index rose 22%. Adobe’s Digital Price Index (on which Laffer relies) reports that online prices have fallen 6.43% year over year.

Amazon says its pricing guidelines generally cause vendors to lower prices. The FTC’s suit “does not identify a single product or product category for which prices have risen as a result of the challenged conduct,” Amazon writes. “Instead, it implausibly, and illogically, assumes that Amazon’s efforts to keep featured prices low on Amazon somehow raised consumer prices across the whole economy.” Indeed, one 2022 analysis found that, on average, Amazon undercut competing online retailers by 13%.

Amazon also points out that, “at most, the Complaint contains vague allegations that a handful of sellers” raised prices. What’s more, the FTC presents “no facts to plausibly allege that Amazon’s Prime-badge policies have increased prices to consumers for any identifiable product or line of products,” the company notes.

The FTC expressly hopes to cement this type of shoddy economic work, which substitutes ominous adjectives for rigorous analysis, as official, binding precedent. In 2022, the FTC published guidance formalizing its new enforcement stance, committing to vague and largely arbitrary standards with little relation to consumer welfare. The policy statement provides no certainty to businesses as to what conduct may, or may not, attract the agency’s ire. Rather, it adopts an “I know it when I see it” standard, as then-Commissioner Christine Wilson, a Republican, put it prior to resigning from the embattled commission .

In the policy statement, regulators seized shocking latitude and case-by-case discretion. The FTC pledged to combat conduct classified as “abusive,” “exploitative,” and “collusive” (among other labels), yet declined to define those nebulous terms. Even “not facially unfair” conduct could draw scrutiny, the statement says.

Moreover, enforcement actions need not “turn to whether the conduct directly caused actual harm in the specific instance at issue” (emphasis in original); merely demonstrating “a tendency to generate negative consequences” suffices under the FTC’s new theory (emphasis added). In short, the agency arrogated to itself the authority to invent novel theories of competitive harm, attempting to replace decades of sound antitrust precedent with Khan’s progressive myopia.

The neo-Brandeisian movement presumes big business to be inherently bad, irrespective of the consumer benefits large firms provide. This notion of “fair” competition departs starkly from long-established precedent. The traditional model protects the competitive process itself rather than specific firms or business models, allowing consumers and markets — not regulators — to choose winners and losers.

Khan’s tenure has pitted arbitrary, ideological rule against the rule of law itself, markets against technocracy, and “vibes” against economic analysis. Her theories have largely foundered on judicial skepticism, and courts have ruled against the agency in two high-profile cases already this year. The Amazon suit will likely culminate in the latest, and most devastating, of the FTC’s courtroom losses to date.

David B. McGarry is a policy analyst at the Taxpayers Protection Alliance.