Antitrust and The Rule of Law: A Conversation with Former FTC Chair Lina Khan

Quick Overview

Former FTC Chair Lina Khan detailed her tenure's focus on integrating labor interests into antitrust enforcement, highlighting the challenge of updating doctrine disconnected from economic reality, while also discussing the current administration's rollback of key initiatives like the non-compete rule and the broader threat of politicization to administrative agencies.

Key Points: Khan prioritized enforcing antitrust laws to appreciate how unchecked market power harms workers, noting the word "consumer" does not appear in the antitrust laws. The FTC challenged the Kroger-Albertson's merger by including a labor harm story alongside the consumer harm story, marking a programmatic advance in how courts consider labor markets in antitrust. The agency worked to eliminate non-competes, resulting in elimination for thousands of workers, and finalized a rule banning them, which was subsequently dropped after a change in administration following conflicting court rulings. Khan advised future leaders to revive traditional statutory interpretation tools in antitrust reasoning and actively seek unusual coalitions for support, citing religious liberty advocates supporting the non-compete ban. The FTC under Khan used consumer protection tools against the gig economy, focusing on prohibiting unfair deceptive acts like lying to workers about potential earnings. Khan noted institutional durability at the FTC surprised observers, as the majority of initiated antitrust lawsuits and merger guidelines remain in place despite the change in administration. She expressed concern over allegations of politicization and potential corruption at the DOJ Antitrust Division, where enforcement decisions allegedly depend on which firm hires which lobbyists, leading to settlements based on connections rather than merits.

Context: This transcript captures a conversation at Harvard Law School with former Federal Trade Commission Chair Lina Khan, hosted by Professor Block, focusing on her tenure from 2021 to early 2025 and her approach to antitrust law, particularly its intersection with labor issues. Khan previously worked as counsel for the House Judiciary Committee Subcommittee on Antitrust and is currently a professor at Columbia Law School, bringing scholarship-driven, novel interpretations to agency enforcement.