While FTC’s Khan Draws The Fire, DOJ’s Kanter Advances Radical Agenda

Authored by Robert H. Bork Jr. through RealClear Wire,

Mention progressive antitrust in Washington, and the dialogue turns to Lina Khan – who rose in half a decade from Yale Law School pupil to change into essentially the most highly effective, and controversial, Federal Trade Commission chair in historical past.

After courts tossed out 4 main FTC antitrust circumstances in a row, Rep. Kevin Kiley, a California Republican, requested Khan, “Why are you losing so much?” When the Biden administration rejected the usual that antitrust circumstances are about shoppers, and as an alternative reoriented enforcement alongside social justice traces, former FTC Commissioner Christine Wilson wrote that Khan was within the thrall of Marxism.

Almost wholly unnoticed amid these fireworks is Jonathan Kanter, head of the Department of Justice Antitrust Division, which shares the antitrust portfolio with FTC. While Khan taunts and dodges like a rodeo clown, Kanter operates with low-key effectiveness. Where Khan matches Washington’s concept of “hipster antitrust,” Kanter tells podcast journalists that if they may see his hairline, they’d know he is no hipster. Where Khan was a star pupil at Yale Law, Kanter shined on the strong Washington University regulation college in St. Louis.

In massive measure on account of Kanter’s management, antitrust has change into one of many 5 pillars of the president’s financial platform.

While Khan’s store accuses corporations of endangering future competitors – a trope usually ridiculed as a “precrime” strategy to antitrust – Kanter’s store speaks soberly of “risk assessment.” Kanter calmly describes why changing the governing client welfare customary, through which mergers and acquisitions are judged by their affect on shoppers, is critical as a result of that customary is a “cost-benefit analysis” that has failed to guard employees and opponents.

While Khan racked a string of losses in court docket, Kanter and his 800-person crew have scored some victories, blocking a mega-merger in publishing, and stopping a partnership between American Airlines and JetBlue.

Kanter represents his antitrust philosophy in a winsome method, talking by way of holding a contemporary economic system aggressive, and upholding democracy by utilizing antitrust “and a whole of government of approach” to interrupt up “choke points” within the economic system. He needs to guard small companies the place so many get their begin by way of “freedom of opportunity.”

Where Khan visibly struggles to restrain her interior ideologue, Kanter comes throughout as affordable, pragmatic, and idealistic on the identical time. In a phrase: reassuring. But Kanter’s insurance policies are simply as radical and economically harmful as Khan’s. While the bulls chase Khan across the enviornment, Kanter impresses the rodeo judges along with his skilled roping, delivering a few of the most radical and unhinged financial insurance policies in American historical past (and that’s saying so much).

Consider the latest 13 draft antitrust pointers that Kanter put out with Khan.

Two economists from the Obama administration, Jason Furman and Carl Shapiro, took to the Wall Street Journal to lift questions, diplomatically, concerning the new guidelines: “As we read this guideline, many nonhorizontal deals that enable the acquiring firm to become more efficient, and thus gain market share or compete more effectively in adjacent markets, would be considered illegal even if they benefit consumers and workers.” This is a vital commentary. Efficiency generates wealth within the type of decrease costs and higher wages. But this appears to matter to not Kanter and Khan.

Furman and Shapiro have been additionally shocked that the Kanter-Khan merger pointers relaxation on the long-discredited Brown Shoe resolution. This 1962 Supreme Court opinion discovered a proposed merger to be unlawful, regardless that the mixed firm would have managed as little as 5% of the market. As my father, Judge Robert Bork, wrote about Brown Shoe, this opinion was predicated on the mistaken and finally disproven perception that Congress meant antitrust regulation to guard “small, locally owned businesses” over the pursuits of shoppers. For this cause courts had lengthy handled Brown Shoe as a chunk within the museum of authorized curiosities. Now it’s revised by Kanter’s and Khan’s merger pointers as a guiding precedent.

Worse, the Kanter-Khan pointers are each expansive and obscure, permitting the federal government to keelhaul any govt and any enterprise at any time. That’s the purpose. It places all enterprise beneath the thumb of regulators.

Economist Dan Mitchell, after reviewing these pointers, wrote: “Thanks to politicians, companies can be accused of improper behavior regardless of what they do. If they charge more than their competitors, they are guilty of monopolistic behavior. If they charge the same, then they are colluding with competitors. If they charge less, then they are using predatory pricing to drive out competition.”

Kanter’s and Khan’s guidelines will improve the facility of presidency over the market, making all the things non-public subordinate to Washington. That is why Christine Wilson declared that progressive antitrust is Marxist at its roots. That is the agenda being pushed by the Department of Justice beneath Jonathan Kanter – not a hipster, however decidedly a radical.

Robert H. Bork Jr. is president of the Antitrust Education Project.