The chairwoman of the Federal Trade Commission should resign, or President Joe Biden should request her resignation. Lina Khan has undermined the integrity of the FTC, and she has wasted scarce resources by bringing legal cases without merit.

On Tuesday, after a five-day trial, U.S. District Judge Jacqueline Scott Corley denied the FTC’s motion for a preliminary injunction against Microsoft’s acquisition of Activision Blizzard, a major video gaming publisher. The judge opined that the FTC would fail in its claim that Microsoft’s acquisition of Activision, a vertical merger — the two companies do not compete against each other — would "substantially lessen competition" in the gaming industry. "To the contrary," the Judge ruled, "the record evidence points to more consumer access to Call of Duty and other Activision content."

Top line: The Judge said the transaction would benefit consumers. Consumer welfare is the righteous backbone of U.S. antitrust law . Neo-Brandeisian concepts of protecting smaller, less efficient companies or opposing proposed transactions on the basis that size alone is an impediment to innovation are not part of U.S. antitrust law. Neo-Brandeisian antitrust theories have been rejected by U.S. federal courts since Robert Bork in 1978 wrote his classic treatise The Antitrust Paradox, wherein he asked what is the point of antitrust law?  Bork answered that question in his book: The purposes of antitrust law are economic efficiency and consumer welfare. 

Lina Khan has tried to make new antitrust law. She has failed. And this isn't the only example of her failure.

Under Khan's stewardship, the FTC had sued to block Meta’s purchase of an emerging virtual reality company. In February of this year, a federal judge denied the FTC’s request to stop Meta from buying the virtual reality content company Within Unlimited. The federal judge point-blank rejected the FTC’s argument that the transaction would reduce competition in a new market.

Khan has struck out against both Microsoft and Meta. Now Khan is going after Amazon. Hers is a long-standing grievance. In a Yale Law Journal article titled " Amazon's Antitrust Paradox ," Khan argued for a more aggressive approach to antitrust enforcement to counter "Amazon's dominance."

The FTC is now preparing a lawsuit against Amazon which could involve the breakup of the company. The FTC says Amazon operates an illegal monopoly concerning Amazon fulfillment services. The FTC says Amazon takes up to 50% of the revenues of sellers on Amazon’s platforms. But Amazon does not have a monopoly in the e-commerce marketplace. Amazon only has a 38% market share of the e-commerce space.

The numbers are black-letter evidence that Amazon is not a monopolist; Khan is destroying an important agency of the U.S. government. The FTC also undermines its own integrity by not requiring that Khan recuse herself from the case on the basis that her law school article demonstrates obvious bias against Amazon.  She must go. 

James Rogan is a former U.S. foreign service officer who later worked in finance and law for 30 years. He writes  a daily note  on finance and the economy, politics, sociology, and criminal justice.