# Antitrust and The Rule of Law: A Conversation with Former FTC Chair Lina Khan Source: https://www.youtube.com/watch?v=d7XAam3Kkas Recap page: https://rapidrecap.app/video/d7XAam3Kkas Generated: 2026-03-05T20:04:21.836+00:00 --- ## 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. ## Detailed Analysis Lina Khan detailed her agency's effort to re-center antitrust enforcement around broader constituencies than just consumers, emphasizing the documented consolidation of labor markets and the fact that antitrust statutes do not explicitly restrict enforcement benefits to consumers. This approach manifested in merger challenges, such as the Kroger-Albertson's suit, where labor harm was explicitly included, and in regulatory actions against pervasive practices like non-compete agreements, which the FTC sought to eliminate entirely through a finalized rule, though this rule was ultimately dropped post-administration change. Khan discussed the difficulty of implementing broad changes given the limited tenure of political appointees, contrasting it with the previous administration's 12 years of solidification. She advocated for using tried-and-true legal reasoning methods in antitrust, which has historically suspended normal statutory interpretation, and stressed building diverse support coalitions. Regarding the current legal environment, Khan expressed concern over judicial hostility toward administrative authority, exemplified by the non-compete rule being struck down in one district but upheld in another, and the potential invalidation of independent agency structures via the potential overturning of Humphrey's Executor, which she believes risks turning law enforcement into an extension of partisan agendas. She also noted that while many FTC antitrust actions continue under the new leadership, there are troubling allegations of pay-to-play politics affecting enforcement decisions, especially at the DOJ. ### FTC Priorities on Labor and Antitrust - Focusing on worker impact in mergers, especially healthcare - Challenging Kroger-Albertson's merger with a labor harm story for the first time - Eliminating non-competes for workers across various industries - Using consumer protection tools against gig economy deception. ### Challenges to Agency Authority and Interpretation - Antitrust doctrine had become unmoored from economic reality, requiring scholarly intervention - Advocating for using standard statutory interpretation tools in antitrust - Navigating judicial skepticism towards executive authority, culminating in decisions like Lower Bright. ### The Future of Independent Agencies Post-Humphrey's - Overturning Humphrey's threatens the character of multi-member agencies by potentially removing incentives for appointing minority party commissioners - Independence allows for institutional durability of bipartisan programs like data broker scrutiny. ### Current State of FTC Enforcement - Vast majority of initiated antitrust lawsuits continue vigorously - Trump administration is defending the FTC's previous rule increasing merger notification information, which was vacated by a district court. ### Political Dynamics of Antitrust Enforcement - Navigating engagement with conservative factions who support antitrust while simultaneously facing opposition campaigns funded by big business groups against the FTC - Serving in government requires strategic coalition building to garner Congressional support and avoid hostility. ### Advice for Future Legal Reformers - Shifting from standards-based 'rule of reason' to more 'bright line rules' curbs discretion that can lead to weaponization - The existence of a private right of action, unlike in labor law, serves as an important escape valve against government capture. ### Transition to City Government - Khan's role in NYC Mayor Adams' transition focused on staffing top economic/legal jobs and ensuring readiness on day one by identifying executive levers independent of state negotiation.