The Senate recently confirmed Andrew N. Ferguson and Melissa Holyoak as commissioners to the Federal Trade Commission in a unanimous vote. Their appointment not only returned the agency to five members for the first since 2022 but also restored bipartisan representation. Ferguson and Holyoak are both Republican. For almost a year, the FTC had been run by three Democratic appointees.
Ferguson and Holyoak have an essential task before them: They must confront the progressive reign of Chairwoman Lina Khan to reorient the FTC toward its mission. Otherwise, Khan’s aggressive and arbitrary enforcement will continue to harm consumers.
Christine Wilson, the last Republican-nominated commissioner, resigned on March 31, 2023. In an op-ed explaining her decision to step down, she blasted Khan’s “disregard for the rule of law and due process.” She also outlined a long list of abuses that she observed while serving, arguably the most eyebrow-raising being Khan’s ethically questionable involvement in the FTC’s challenge to Meta’s acquisition of Within, a virtual reality startup.
Many questioned whether Khan could act impartially in the matter. Before joining the FTC, Khan argued that Meta should be blocked from conducting any additional acquisitions. Then, against the recommendations of FTC ethics officials, she declined to recuse herself from the case. For that reason, in a memo to Wilson, an FTC ethics official wrote, “From a federal ethics perspective, I have strong reservations with Chair Khan participating as an adjudicator in this proceeding.” What’s more, after receiving the ethics official’s response, Wilson’s dissent in the matter was redacted by the other partisan commissioners.
Khan’s influence over the agency is more significant than it’s ever been. She sparked an exodus of career FTC attorneys after she repeatedly insisted on bringing ideologically motivated cases that were losing prospects. A former head of FTC’s Bureau of Competition regretted the exodus, saying: “Career staff know whether something has been looked at before, whether it’s been litigated before.” That loss of institutional knowledge has further brought the agency under Khan’s control as she hired partisan outside consultants and special assistants. What is left is a largely compliant staff.
As for Khan’s anti-merger vision, it is now engrained in the agency, as evidenced by the 2023 Merger Guidelines and the proposed changes to the Hart-Scott Rodino Act process. The guidelines represent a new set of progressive priorities and doctrines that, although not binding law, will act as the official guide for agency enforcement. Meanwhile, the proposed changes to the HSR process, if finalized, will drastically expand the costs companies, regardless of size, incur to merely begin the process of seeking merger approval. These costs are estimated to be nearly $2 billion annually.
Fortunately, Ferguson and Holyoak are in a position to strike. Both boast sterling legal resumes and have worked on their states’ efforts on consumer protection and antitrust. Ferguson was the solicitor general of Virginia and clerked for Supreme Court Justice Clarence Thomas. Holyoak was the solicitor general of Utah.
Moreover, the new commissioners can enlist external support, namely the scores of attorneys who have left the agency and possess key institutional knowledge and those who are eager to join as dissenting advisers.
The broader consumer-focused community must do its part, too. Khan’s critics must ensure that any inappropriate attempts on behalf of the FTC to suppress their dissent are known. They can shine a light on such abuses by notifying congressional oversight bodies, filing Freedom of Information Act requests, and directly petitioning the press. And above all, they, along with Ferguson and Holyoak, must underscore that Kahn’s radical approach to antitrust will further devastate consumers if left unchecked.
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Ethan Yang is an adjunct research fellow at the American Institute for Economic Research. Dr. Ryan M. Yonk is senior research faculty at the American Institute for Economic Research.