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vised Amazon on its 2017 purchase of
Whole Foods Market, was said to be
a leading candidate for the Assistant
Attorney General for Antitrust posi-
tion. Susan M. Davies, a corporate
lawyer who had worked for Facebook,
was rumored to be Attorney General
Merrick Garland’s first choice for the
antitrust job. Left-leaning news out-
lets published harshly critical articles
about the pro-corporate direction
Biden’s Administration seemed to be
taking. On January 28th, a piece ran
in the American Prospect with the head-
line “Merrick Garland Wants
Former Facebook Lawyer to Top
Antitrust Division.”
Then, in March, Biden announced
that he was nominating Khan to a seat
on the F.T.C. Khan said that she was
surprised when, a few months later, she
was named chair. On July 9th, Biden
issued an executive order instructing
more than a dozen regulatory agencies
to take aggressive steps to promote
competition in the economy.
One of the F.T.C.’s last moves under
Donald Trump was to file, in Decem-
ber, 2020, a sweeping antitrust case
against Facebook, alleging that it held
a monopoly position in social media
and seeking to force it to sell Insta-
gram and WhatsApp. The suit under-
scored the stakes for Biden’s new anti-
trust authorities, who would inherit
the case, along with investigations of
Google and Amazon. Twelve days after
Khan started her new job, a judge dis-
missed the Facebook lawsuit, issuing
a harsh critique of how Khan’s prede-
cessors had written their complaint.
When Facebook purchased Instagram
and WhatsApp, in 2012 and 2014, moves
that were approved by the F.T.C., it
eliminated two of its most promising
competitors. Proponents of broader
antitrust enforcement argue that this
left Facebook free to violate its users’
trust and publish lies and propaganda
because it faced so little competition.
(WhatsApp had been popular in part
because of its strong privacy controls.)
Making Facebook sell both companies
would force it to compete with them.
When the judge dismissed the F.T.C.’s
case, he argued that the agency had
provided no proof for its assertion that
Facebook held a monopoly position in
social networking, but, instead, seemed
to assume that everyone simply saw it
that way.
The setback revealed some of the
limits of trying to use antitrust as a
mechanism for addressing bad corpo-
rate behavior. “There is relatively little
that Lina Khan can do,” Jason Furman,
of Harvard Law School, told me. “I
think she’s going to face very big chal-
lenges, because the courts decide.”
Khan told me that her vision for the
F.T.C. takes these challenges into ac-
count. “Antitrust needs to be on the
table, but we need to have a whole host
of other tools on the table as well,” she
said. On September 22nd, she issued a
memo outlining her priorities. One of
them, she told me, was to address the
merger boom that’s under way; during
the first eight months of 2021, $1.8 tril-
lion in mergers and takeovers was an-
nounced. Some of the largest corpora-
tions were set to become even bigger:
Amazon announced a proposed acqui-
sition of M-G-M studios; United -
Health Group proposed to buy Change
HealthCare; A.T. & T. wants to merge
WarnerMedia, which it owns, with Dis-
covery. “There’s a very real risk that the
economy emerging post-COVID could
be even more concentrated and con-
solidated than the one leading up to
it,” Khan said. “That is what you wake
up thinking about: the merger surge,
and what we’re going to do about it.”
During her first few months at
the F.T.C., Khan took advantage of
its Democratic majority—which in-
cluded Rohit Chopra,
who had been nominated
by Biden to become head
of the C.F.P.B. but hadn’t
yet been confirmed—to
gain easy approval of pol-
icy changes. Several of
those policies make it
more difficult for compa-
nies to get mergers ap-
proved, and some expand
Khan’s own authority at
the commission. The Wall Street Jour-
nal editorial page, which has published
at least six critical pieces about Khan
since she started, described her as
“Icarus,” and said that her “power grab
at the F.T.C. will end with her wings
melting in the courts.”
Suzanne Clark, the president and
C.E.O. of the U.S. Chamber of Com-merce, told the Journal, “It feels to the
business community that the F.T.C.
has gone to war against us, and we have
to go to war back.” But Khan disputes
that she is anti-business. “I think anti-
trust and anti-monopoly and fair com-
petition are enormously pro-business,”
she said. “Monopolistic business prac-
tices are not conducive to a robust and
thriving economy.” She noted that she
had started her career by looking closely
at the poultry industry, which was struc-
tured like an hourglass. “You have mil-
lions of consumers on one end, mil-
lions of farmers on the other end, and
they’re connected by a very small num-
ber of intermediaries,” she said. “I think
those types of markets where you have
deep asymmetries of power, sometimes
on multiple sides of the market, can
lead to all sorts of business practices
that are harmful.”
In addition to managing political
pressure, running the F.T.C. involves
overseeing hundreds of people, some-
thing Khan has never had to do before,
and during a pandemic. “You know, his-
torically you would just have an ice-
cream social and the whole team would
come in and you’d be able to see every-
body,” she said. “Now that looks like a
thousand-person Zoom, and Zoom
crashes, and half the people can’t get
on. ... There’s a level of clumsiness that
comes with just doing these types of
transitions during the pandemic.”
In a sense, the real work of Khan’s
antitrust fight will be about chang-
ing minds over time—first
those of consumers, and then
those of judges and legisla-
tors, who must reshape the
legal framework to ref lect
a new world view. Khan
seems to understand this.
Still, some longtime staffers
at the F.T.C. worry that she
is underestimating the risks
of pushing ahead with ag-
gressive cases that are likely
to fail, and of insulating herself from
views that don’t align with hers. “Do
you want an F.T.C. chair who’s going
to win cases?” a person who has done
extensive work in antitrust policy said.
“Or do you want an F.T.C. chair who’s
going to have glorious, spectacular
losses that so enrage people that the
system gets fixed?”