Khan’s First Year as FTC Chair: More Antitrust Lawsuits, But Fewer Overall Actions

Fewer total cases than most Obama and Trump era FTC chairs — even in similarly deadlocked commissions

In June 2021, Lina Khan was sworn in as the chair of the Federal Trade Commission to a great deal of fanfare and sky-high expectations. Commentators hailed the appointment as ‘earth-shattering’, with her focus on competition being “good for the economy… and consumers.”

With so much focus on Chairwoman Khan’s “shake up” of the FTC, we were interested to compare her initial tenure on competition issue to that of other recent FTC Chairs from the Obama and Trump Administrations.

So we examined the FTC’s antitrust enforcement record, looking at the cases and proceedings published in its legal library related to its competition mission.

To ensure an apples-to-apples comparison, our review is limited to the first year of each Chair’s tenure, going back to Chairman Jon Leibowitz who was appointed in March 2009 by President Obama. We focused on cases initiated during the Chair’s tenure, regardless of whether or not a decision or consent order was reached within that year. We also excluded the tenure of former Acting Chairwoman Rebecca Slaughter, as it spanned only a few months.

As noted above, there were three deadlocked Commissions in the time period under our review: Chairwoman Khan’s which was deadlocked 2–2 for the majority of her first year; Chairwoman Ramirez’s which was deadlocked 2–2 during her first year; and Chairwoman Ohlhausen’s which was deadlocked 1–1 for over 11 months of her first year.

What the records show

In total, there were 108 cases brought under the FTC’s competition mission during the time period reviewed, including merger reviews and anticompetitive conduct proceedings. For ease of reference, we cataloged the listed cases into one of five categories:

• Merger Lawsuits for cases regarding merger reviews in which the FTC instituted a lawsuit;
• Merger Settlements for cases regarding mergers where the FTC issued a complaint and reached a settlement or consent agreement with the companies involved;
• Non-merger Lawsuits for cases involving anticompetitive conduct, or collusion where the FTC instituted court action against a company;
• Non-merger Settlements for cases with anticompetitive concerns where the FTC reached a settlement or agreement with the company; and
• Approval of mergers, where the FTC gave its affirmative approval or stated that it had no objections or would be taking no further action in respect of a proposed merger.

Individual Chairs Records

We found that Chairwoman Khan brought fewer overall antitrust actions in her first year than Chairpersons Leibowitz, Ramirez and Ohlhausen — but more than Chairman Simons. While Khan’s allies may note that she faced a deadlocked 2–2 commission during her first year, as noted above, Chair Ohlhausen and Chair Ramirez faced a 1–1 and 2–2 party split during most of their first years, respectively.

Based on her stated desire to bring more antitrust lawsuits, it’s no surprise that Khan has brought the most number of merger lawsuits of any recent chair in this analysis.

But it’s also noteworthy that overall, settlements drive the majority of each FTC’s chair “scoreboard” results — and Khan tied Simons for the fewest merger settlements in their first years:

Takeaways

While the FTC filed more lawsuits under its competition mission in the first year of Chairwoman Khan’s leadership than it had under previous leadership since the Obama administration, Khan’s first year saw fewer competition actions overall compared to most recent chairs, except Chair Simons.

Many of her supporters undoubtedly view this as a good thing — bringing more merger and non-merger lawsuits. But in doing so, Khan’s first year saw a much lower number of competition settlements (compared to other recent chairs), where the FTC has historically secured concrete wins for consumers and competition.

Some may argue that Khan’s aggressive plans were hobbled in her first year by the lack of a governing majority. But as this analysis shows, Chairs Ohlhausen and Ramirez saw similar partisan deadlocks, but brought more actions overall.

The jury is still out on the overall record of Chair Khan’s tenure — particularly since it may be years for the lawsuits she has launched to yield resolutions. But the trade off of her focus on increased litigation is an overall decrease of competition-related wins compared to most recent FTC Chairs.