Khan, Kanter defend antitrust crackdown

Federal Trade Commission Chairwoman Lina Khan and Department of Justice assistant attorney general for the antitrust division Jonathan Kanter defended a crackdown on federal antitrust enforcement while speaking on a Thursday panel. 

The top federal antitrust enforcers have been active in bringing cases both against proposed mergers, as well as ones against existing industry giants, including against dominant tech companies.

In addition to those cases, the DOJ and FTC under Khan and Kanter have proposed updates to merger guidelines that would revamp how acquisitions are reviewed. 

Amid the ramped-up action at the agencies, the Biden administration officials have also faced pushback and criticism that they are overreaching and not successfully leading on antitrust enforcement. 

Kanter said that narrative “isn’t just unfair, it’s inaccurate.” 

Khan and Kanter were speaking at an event hosted by the Brookings Institution, in conversation with Bill Baer.

Baer is a visiting fellow at Brookings and served as director of the Bureau of Competition at the FTC from 1995 to 1999 and as assistant attorney general in charge of the antitrust division at DOJ from 2013 to 2016. 

For example, he touted the DOJ’s win in blocking Penguin Random House’s proposed $2.2 billion acquisition of Simon & Schuster. At the same time, the DOJ’s closely watched case against Google over alleged monopoly power in the search market is at trial. Google has pushed back on the allegations. 

In addition to court cases, Kanter said there have been “numerous” transactions abandoned after the DOJ filed. 

Khan said she echoed Kanter’s sentiment. For example, she touted Lockheed Martin terminated its $4.4 billion deal to buy Aerojet Rocketdyne Holdings after the FTC sued to block the deal. 

Additionally, the FTC’s case against Meta, which was first filed under the Trump administration and refiled under Khan’s leadership, is going to trial next summer, she said. 

She said the FTC has a “very active program under way” and has “already had significant success.” 

A critical component of how Khan and Kanter are renewing antitrust enforcement is through proposed updates to merger guidelines. The update rethinks the guidelines to modernize the approach. For example, one guideline would consider whether a merger involves a “multi-sided platform” and examine the competition between platforms. 

Khan said there is “no single set” of analytical tools that will be correct for analyzing antitrust enforcement because it varies depending on the market. The updated guidelines seek to meet that by allowing enforcers to use the right set of tools depending on the context, she said.

The public comment period closed last month. 

Kanter said the department is “working as quickly” as possible to read over all the comments. He also said that the amount of public participation — from workers, farmers, nurses, small business owners — in the process is encouraging. 

In part, Kanter said that was part of the “deliberate choice” to write the guidelines in a way that is “accessible to the broader public.” 

“The country is watching. The country cares about competition and a competitive economy because it affects so many aspects of our life and our democracy,” he said.