Newly minted agency chair Lina Khan has wasted no time in acting on the principle she articulated in her pre-appointment career as an academic: Modern competition law as interpreted by the courts is inadequate to address modern markets. The most controversial of the reconfigured FTC’s early moves was a 3-to-2 vote this month along party lines to rescind a 2015 policy statement limiting the commission’s ability to go after unfair conduct not in clear violation of existing antitrust legislation. The change itself is minor — but it could signal a major shift to come.
There was never a statutory limit on the FTC’s ability to pursue these types of cases. By repealing its self-constraining guidance, however, the agency is making it clear that we’re about to see a lot more of them. The idea is that the past decades’ precedent on the Sherman Antitrust Act has made it nigh impossible for enforcers to win cases without proving harm to consumers, usually through price increases — a poor fit for the free services that have come to dominate our daily lives. The surest way, then, for the FTC to strike at anticompetitive conduct by monopolistic firms is to rely on the authority Congress granted the agency at its inception to go beyond what the law lays out.
Ms. Khan and her Democratic co-commissioners have a point. These companies benefit from network effects that make their services more valuable the more people use them; users benefit, too. Trying to reduce these firms’ power by breaking them up is a dubious proposition, but trying to ensure they don’t abuse that power is essential. Gatekeeper businesses with the greatest ability to box out any competitors that do emerge, or to leverage control in one market to gain control in another, require close scrutiny. Some behavior should indeed be off-limits — from predatory pricing to some forms of self-preferencing.
The problem is, precisely what behavior the FTC considers off-limits remains unclear. This leaves businesses liable to be punished for conduct they didn’t know was punishable, and it also leaves the FTC able to institute standards that are unreasonably restrictive. President Biden, in a sweeping executive order signed on Friday intended to promote competition across the U.S. economy, directs the FTC to establish rules clarifying exactly this question. That’s good, and those rules should take care not to stifle even the biggest businesses’ legitimate right to compete. Even better than the FTC mapping out verboten conduct that federal law allows, however, would be for federal law to stop allowing it.
Bipartisan antitrust bills remain in legislative limbo in the House of Representatives. Anyone concerned that an overzealous group of unelected officials are wrongly taking matters into their hands should also want Congress to stop sitting on its own.
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