Who Will Run the FTC for Trump in 2025 If He Wins Tomorrow?
They must have the skills to split the uprights of aggressive enforcement AND deregulation to undo the damage done over the past four years. Let's start there and identify some potential nominees.
Welcome back to Competition on the Merits – Election Edition, I suppose.
Some of you have been asking about how the results of the election impact FTC and DOJ personnel moving forward. Let’s do that.
There has already been attention over whether Kamala Harris might keep Lina Khan on as the FTC Chair (a title she invented and prefers; “Chairman” by statute). Will she stay if Harris wins? If President Harris renominated Khan would a Republican-controlled Senate confirm her? If they refused to would it even matter – since the FTC has no holdover statute and a sitting Commissioner (even a Chairman) can sit as long as they would like. Would she go? So much attention on the infighting among Democrats on the Khan question. Mark Cuban and Reid Hoffman say no. Stoller and his ilk are in a tizzy. Oh my. Anyway, you can go find that sort of thing in Bloomberg. Besides, the answer is not all that complicated: Khan leaves when she wants to.
And for what it is worth, I suspect she does want to go. She’s filed the suits and done the things she said she would do: Big Tech suits, Robinson-Patman (soon), competition rulemaking, thrown out and replaced the Section 5 guidance, new Merger Guidelines, etc. Now she will lose plenty of these and can stick around to watch and collect losses on signature items or move on to the next job having already had a remarkable impact on the agency. I suspect the latter. If Harris wins the election I think it would take a big appointment to keep her in the Administration: Solicitor General? Associate or Deputy Attorney General? Otherwise, why not head back to Columbia University, hang out with your family, do some writing, and enjoy the spoils for a bit?
But today’s Competition on the Merits is about what happens if Trump wins. There has not been much written about that. Matt Yglesias (who obviously should subscribe) pointed out the asymmetry in attention paid to potential regulatory personnel and appointments – particularly at the FTC – in a second Trump presidency.
So let’s take a small step toward correcting that ratio. Neither the academics nor the antitrust press can be bothered with this sort of thing – mostly because it would involve having to talk to Republicans.
Let’s start with some links to useful background reading that I’m guessing might become more interesting to those following this space if Trump wins tomorrow:
What the FTC should do under Republican leadership. And no doubt if President Trump wins — which is looking more and more likely from where I sit – we will spend plenty more time on the substantive policy agenda.
How the Trump administration could pick up the failed Biden-Harris attempt at Whole of Government Competition Policy and turn it into something useful.
OK, so here is the plan for today. I will finish today’s issue with a menu of sensible candidates for President Trump to lead the FTC. Maybe I’ll talk a bit about less sensible candidates too, i.e. types that do not make much sense to lead the FTC in its current context. But where we must start to have this conversation is with understanding what we might want an FTC leader to accomplish during a second Trump term. What are the objectives? Understanding that question gets much of the work done in identifying the characteristics President Trump might be looking for to lead the FTC. So that’s the plan.
Analyze the goals of the Trump FTC in the current regulatory environment, i.e. following the Khan FTC
Discuss what characteristics and skill sets those goals imply and thus are necessary for the next FTC Chairman
Identify potential candidates likely to have those skills
Some of the logic below obviously also applies to the DOJ’s Antitrust Division. But the FTC has a broader set of tools to deploy though the themes will be similar. We will discuss the DOJ separately later. Let’s get to it.
What Will the Trump FTC Want to Accomplish? Splitting the Uprights Between Enforcement and Deregulation
It is important to start with where the FTC finds itself as we approach the 2024 election. If we were having this conversation in 2016, or even 2020, it would be a very different one. The political economy has changed significantly between then and now in terms of the way the political “right” must think about competition policy and the FTC. The shift is not difficult to understand.
The short version goes something like this. In 2016, the political economy of competition policy on the right was over-indexed on Big Tech. Competition policy circles on the Hill, academia, among practitioners, and inside agencies were fixated on Big Tech. Antitrust enforcement against Google, Meta, Amazon and others was either the number 1 priority or something close to it. Some of this has to do with legitimate competition policy concerns. Some of it – and I think most of it – has to do with the widely held and not incorrect view that these firms have sometimes participated enthusiastically in the censorship of conservative voices or put their thumb on the scale in favor of Democrats in the political process. Many conservatives were willing – despite repeated warnings that embracing the weaponization of antitrust for political ends would do more harm than good – to do damage to broad swaths of the economy to indulge that priority. While it is still a priority for some. It simply is not the priority it used to be. Why? Two things have changed.
First, the Biden-Harris administration competition regime has happened. For better or worse. It’s been four years. And a lot of bad things have happened arising from the excesses of the Khan-Kanter antitrust enforcement regime. In 2016 or 2020, conservatives played footsie with the populist, Hipster, Neo-Brandeisian crowd because it was the surest route to using antitrust weapons to “get” Big Tech. The downside – that Khan and Kanter would take the same approach other industries – was speculative and hypothetical. It was also quite predictable. But nonetheless it was a problem for tomorrow. Well, it is tomorrow. What has happened?
New HSR rules that introduce bureaucratic sludge and impose a tax on all mergers and acquisitions and disproportionately impact smaller firms;
Sacrificing the rule of law in merger consents to punish individuals from disfavored industries like oil and gas or private equity;
Threatening to bring back the Robinson-Patman Act to punish discounts and low prices for groceries.
Targeting Elon Musk and X.com for political reasons
A variety of failures of due process as documented in the House Oversight Committee Report
The withdrawal of the Trump administration Vertical Merger Guidelines and the introduction of the new, more structural, and less economically sound Merger Guidelines
Throwing away the bipartisan Section 5 Policy Statement that harmonized the FTC’s unfair methods of competition authority with the rest of the federal antitrust laws under the consumer welfare standard;
Controversial use of FTC consumer protection authority to convert the FTC into a civil rights regulator.
The examples go on and on. The bottom line is that huge swaths of the American economy are under investigation by the FTC. And many of them for little reason to do with potential violations of the antitrust laws or the FTC Act. The overhang of antitrust liability for normal, competitive conduct, the bureaucratic sludge that has been introduced into the merger review process, the flouting of the rule of law to ban noncompetes. But the costs of that regulatory overreach are real and salient and have had political consequences. Republican politicians hear a lot more about what the FTC is doing to make their life harder than what Google is doing to make their life harder.
The economy has been overregulated and smothered. Just like Khan and Kanter said they would do. That’s the first big change in the political economy of competition policy and antitrust on the right.
The second big chance? Every big tech firm has been sued! It’s already happened.
Here is what I wrote about that before:
Namely, virtually every Big Tech target has been the subject of multiple antitrust suits by federal and state enforcers, even holding aside private litigation. Google has live suits targeting both its search and Ad Tech businesses, Amazon has been sued multiple times on competition and consumer protection grounds. DOJ brought a monopolization suit against Apple. Meta certainly has not escaped antitrust scrutiny. Big Tech is, frankly, up to its eyeballs in lawsuits, many which will not be resolved until well after the 2024 election. Heck, some may not be resolved by 2028. But it appears diminishing marginal returns for further large scale Big Tech antitrust suits have kicked in.
Think what you want about the merits of those suits. The point is that
the Trump and Biden administrations already brought them. Of course there could be more. And election season sometimes brings out the worst of the Big Tech players when it comes to political bias and unforced errors. But there just is not enough fresh meat on the bone to make “going after Big Tech” THE core antitrust principle of the second Trump FTC.
People on the left and right asking whether a second Trump term means “getting Big Tech” are fighting the political debate of 2016 or 2020 at best. But today’s debate is different. It is broader. And it requires conservatives to more firmly admit there are real tradeoffs between the perceived benefits of weaponizing antitrust today against one’s favorite targets on the one hand, and the real costs to Americans, to the economy, and to industry from an over-active approach to antitrust detached from the consumer welfare standard and constraints on the administrative state.
Lina Khan and Jonathan Kanter have made it a political winner for the right to support the rule of law, the consumer welfare standard, and even got conservatives back to spending real intellectual energy and capital on questions like whether the FTC’s structure (and use of administrative litigation) are constitutionally sound! That is quite a feat in a short period of time. It was not long ago that Lina Khan secured 68 votes in the Senate for her confirmation as Commissioner. Does anyone think she would survive a confirmation vote today in a Republican-controlled Senate? There is a reason why. The reason is that Republicans have watched what the Biden administration competition policies have done and their constituents have paid the price.
Even the political economy in Silicon Valley has changed dramatically between 2016 and today.
Those two changes give a good picture of where President Trump will find the FTC on January 20, 2025. They are an institution that has overregulated merger activity to the point of deterring procompetitive transactions, smothering potential Little Tech exits, and targeting disfavored industries. The FTC is an institution with regulatory excesses and a well-deserved reputation in court for flouting the rule of law and among practitioners for abusing process. They are also an institution that has targeted Big Tech consistently for the past four years – and earned some victories.
The goals of the Trump 2025 FTC are simple: split the uprights between deregulation and aggressive law enforcement where appropriate. Over-indexing on aggressive antitrust enforcement aimed at Big Tech and other favorite political targets means missing out on the deregulatory opportunities created by the excess of the Biden-Khan FTC. It should bring good cases where they exist – and it should win them – including against Big Tech. But those deregulatory targets are too important economically and politically to pass by. That was not as true in 2016 or 2020. It is now.
What Skills Should the Next FTC Chairman Possess?
The “splitting the uprights” framing says a lot about what we should expect about FTC leadership and its characteristics. The Trump 2025 FTC will not only have to walk and chew gum at the same time, it is going to need to have a black belt in deregulation and in antitrust law to achieve both goals.
On the deregulatory front, the targets are endless:
Assessing the constitutionality of administrative adjudication and rulemaking at the FTC;
Bringing back sensible Merger Guidelines (both Horizontal and Vertical);
Reharmonizing enforcement under Section 5 of the FTC Act with the traditional antitrust laws – or at a minimum, bringing back the bipartisan 2015 UMC Policy Statement;
Considering whether OIRA should govern independent agencies (a pet project of former Trump OIRA Administrator and now D.C. Circuit Judge Neomi Rao);
Reforming the HSR process to be less burdensome – a task made more difficult by the two Republican Commissioners supporting the new HSR rules;
Reforming or repealing the Robinson-Patman Act;
Getting back to International Competition Advocacy – in defense of the consumer welfare standard which has taken quite a beating over the past 4 years in the global antitrust community;
And most of those deregulatory targets are simply undoing existing damage. There is also an affirmative deregulatory agenda! The FTC has considerable powers to attack state and local barriers to entry that impede competition, and it can play an important role in a “Whole of Government” approach to competition policy.
On the enforcement side of things, the point I want to make is that FTC leadership will also have to be expert in antitrust law. That expertise will be required not just in the crafting of new Guidelines, but in the day to day of bringing good cases and winning them. I do not expect by any stretch of the imagination, and would not predict, a Trump 2025 antitrust regime that looks like the Bush administrations or one that has a uniformly laissez-faire bent. Not at all.
I would expect aggressive, targeted, and principled enforcement – including at least some aimed at Big Tech. But I also expect a Trump administration that is very attuned to the overreach of the Biden administration and the political and economic benefits of cutting back on those excesses. It is a difficult and complicated balance, both politically and in the execution of policy. But one can already see signs of President Trump recognizing the benefits of campaigning against overregulation now – for example, in his recent speech to the Business Roundtable. President Trump’s willingness and desire for an aggressive antitrust enforcement arm will be there, just as it was during his first term, but expect to see more give and take between a distinct focus on regulatory cleanup and eliminating bureaucratic costs and barriers, and aggressive enforcement. I wouldn’t expect either of these forces to dominate, but rather a balance between the two and, importantly, personnel choices attuned to the tradeoffs and with expertise in each.
I know that requiring expertise both in antitrust law and administrative law does not sound like a big ask. But it is. Most antitrust lawyers do not know anything about administrative law or process. And of course, substantive knowledge is just one of the skills necessary to lead an agency. Other things matter: personality, leadership skills, willingness and ability to compete in the marketplace for ideas in writing and speeches. They matter deeply at the FTC currently because the agency’s morale is at an all-time low. But there are a lot of ways to combine those other skills into a successful FTC Chairman. The substantive knowledge is a “must-have.” And in particular, substantive knowledge of the administrative state. There is a ton of antitrust and economic expertise in the FTC staff that an FTC Commissioner or Chairman can lean upon in a pinch. The same just is not true when it comes to understanding the Administrative Procedures Act, judicial review of FTC rulemaking, or how to go about undoing regulatory excess. The next FTC Chairman must bring their own substantive knowledge and motivation on this dimension.
The very first questions I would be asking potential FTC Chairman candidates is for their favorite 4-5 targets for deregulatory action at the FTC and how they would go about doing it, the hurdles they expect to face, and how to overcome them. They should have very good answers to these questions. They should know whether they will bring back the 2015 UMC Policy Statement or do something more aggressive with it. They should have a plan or at least an idea of how to deal with merger consents that have flouted the rule of law to target individuals. They should have a plan for how to undo the unanimously supported HSR rules. But none of that can come at the expense of having professional knowledge of the antitrust laws, an understanding of the interplay between economics and law, and how to put together an antitrust case.
It is asking a lot. But being FTC Chairman is not for everyone. Or should not be. Let’s talk about potential candidates.
Fast Lanes and Slow Lanes: Potential FTC Chairman Candidates
A disclaimer: I obviously do not know who President Trump will nominate to join the FTC and which of the Republican Commissioners he will designate as Chairman. I do not think anybody does. But I do have some thoughts. And while I do not have any inside information, I have discussed competition policy and the FTC with President Trump before. I am occasionally asked to share my views on policy or personnel with folks who are close to that process and I am always happy to do so. I say the same thing no matter who asks me. So I might as well share similar thoughts here.
I’m going to discuss candidate “types,” or “lanes,” by which I generally mean groups of candidates with similar characteristics or that come from similar backgrounds. The lanes are almost always the same – but their relative attractiveness for a nominating president changes over time and across administrations as well as in response to the composition of the existing regulatory board. For example, an FTC with 2 sitting Republican Commissioners who are big law antitrust lawyers makes nominating a third of the same less likely on the margin.
I’m going to characterize the lanes as either fast or slow – with fast lanes being those I think are most likely to serve as the pool from which President Trump nominates the next Chairman and slower lanes being less likely. I’ll order the lanes fastest to slowest and talk just a bit about the characteristics in each lane, why I think the particular lane is fast or slow, and giving some leading examples of potential candidates in each lane. I know – you want the name. I’ll give you some names.
Fastest Lanes: Sitting Republican Commissioners
There are two sitting Republican Commissioners – Melissa Holyoak and Andrew Ferguson – and both are strong candidates for the Chairman position. Designating a sitting Commissioner as Chairman is the path of least resistance. It lowers the heat on the confirmation battle for the 5th Commissioner because it is about a Commissioner rather than a Chairman. But that is not the reason Holyoak and Ferguson are strong candidates. They certainly have the required chops both in terms of antitrust law and administrative law to do the job.
They have relatively similar profiles – each coming from a position as Solicitor General (in Utah and Virginia, respectively). Each has earned their stripes as a minority (oft-dissenting) Commissioner combatting the Khan FTC in individual cases, rulemaking, and policy matters. Each obviously cares deeply about the rule of law and FTC attempts to erode and evade it. You can get a sense of their views in interviews they have published (Ferguson here; Holyoak here).
Now is not the time to review their entire record – but they have each supported antitrust enforcement where they viewed a case as sufficiently strong. But they have also dissented where appropriate. The strongest dissents in antitrust enforcement matters, in my view, were in the extortionist abuse of merger process by the Khan FTC in Exxon/ Pioneer and Chevron/ Haas. Each has been prolific and has exhibited a strong proclivity for fighting against abuses of power that the FTC does not have from a the non-compete rule to “click to cancel” and beyond. Each is also probably a bit more aggressive on antitrust enforcement (particularly mergers) than say, I would be (e.g. there are a few merger complaints that Holyoak and Ferguson supported that I would have not). But President Trump might view that aggression as more of a feature than a bug.
There are some differences between the two. And again, if Trump wins tomorrow we can come back to the personnel issue in more detail. My own reading of their written statements and interviews suggests Holyoak is a bit more invested in the interplay of economics and antitrust law while Ferguson’s mastery of administrative law and history is a relative strength (not too many dissents out there that cover Blackstone, the APA, and the Federalist Papers). Holyoak also appears to be a bit more active in evaluating and writing and sharing her views and analytical approach on individual cases. Ferguson has been tied to potential nominations to positions outside the FTC – including Acting Attorney General – and may be highly sought after for those positions. Both are strong lawyers and thoughtful about the FTC Act and the rule of law. Neither has a long history of institutional FTC knowledge, but a fresh perspective is sometimes very useful for evaluating which FTC institutions and norms are useful and which are not. My harshest criticism of either is that acquiescing to the Khan FTC’s new HSR merger tax was a mistake because it will do much more harm than good to the economy — even accounting for the many and valuable concessions the Republicans extracted — and their compromise seriously reduces the probability a reviewing court will reject the rule.
Bottom line: Each is well above the bar and qualified as FTC Chairman and I am sure will receive serious consideration. And again, a pick from this lane seems most likely for those handicapping the field.
Still Very Fast Lanes: Political Insiders
A second perennial “type” for consideration for regulatory agencies, including the FTC, are political insiders – usually Congressional staffers. Todd Henderson and Brian Feinstein have a very nice paper documenting the increase in nominations for Congressional staffers at independent regulatory agencies over time. The FTC has been no exception with Noah Phillips, Lina Khan, Alvaro Bedoya, Rebecca Slaughter, and others in recent years.
I would normally downgrade this lane to “slower” given my description of what is needed for the Trump FTC in 2025 and my view of the average expertise of Congressional staffers in these areas. But it is difficult in that job to amass the sort of deep expertise in one area of law that is required to run an agency — much less both antitrust law and administrative law. There are exceptions of course. Noah Phillips comes to mind as having exceptional knowledge of both and putting them together to become a very effective Commissioner – and one that did considerable work on holding the Khan FTC accountable for its attempts to do competition rulemaking without authority.
I can think of two possible exceptions that would make for interesting candidates for FTC Chairman. Gail Slater is an FTC veteran with a decade of experience as well as subsequent roles in the Trump NEC. She is now Economic Policy advisor to J.D. Vance, and thus no surprise she is often mentioned as a potential candidate for FTC Chairman. Slater has ample FTC experience and is smart, politically savvy, and well respected. A second, “sleeper” candidate who fits this profile is Tyler Grimm – Chief Counsel for Policy and Strategy for the House Judiciary Committee staff. Jordan and the House Judiciary Committee have been supremely active in oversight against the Khan FTC and various abuses of power. The Committee has published work ranging from oversight of FTC ethics issues, a defense of the consumer welfare standard, to investigations of FTC leaks and politically motivated prosecutions of Elon Musk and X.com. Grimm’s work with the Judiciary Committee and antitrust expertise might well make him an interesting candidate for consideration.
Just Fast Enough Lanes: Conservative Litigators
One more interesting set of possibilities requires us to move a bit outside the box. The conservative movement is full of very talented lawyers who are in boutique law firms doing work that ranges from “cause” oriented work to just about everything else. A number of these conservative lawyers are not only well-credentialed (a lot of Supreme Court clerks among them) but also are closely connected to the Trump campaign and administration. I would not be surprised to see someone from this group get a very serious look. Satisfying the “administrative law” knowledge requirement within this group will not be a challenge. But finding someone with serious antitrust chops might be. But there are certainly a few. Some have done work fighting against Google and Meta. Others have worked with Elon Musk and X to defend against government overreach.
I’d exclude anyone from this list that has done either: (1) public work defending the Neo-Brandeisian approach to mergers and acquisitions specifically (i.e. not just suing Big Tech); or (2) advocated for a revival of the Robinson-Patman Act. There are plenty of conservative lawyers who got caught up in the populism fever and tried to recast these positions as conservative. But hating Big Tech is not enough any more. We can save the debate on the merits of those ideas for another day — but neither are consistent with the intellectual commitments required to do the job needed at the FTC moving forward in terms of reducing rather than increasing regulatory burdens. It may be a small set of interesting and qualified candidates here. But it is not zero.
I’ll save names (really, one name) here for down the road. But I would keep this lane in mind.
Not So Fast Lanes: Academia
Academia is often called upon to serve these spots. The FTC has a long tradition of academic Chairmen and Commissioners: Bob Pitofsky, Tim Muris, Dennis Yao, and myself to name just a few. But I have a hard time seeing any academics cracking through for serious consideration right now. And even at that, there are very few academics who understand both antitrust law and administrative law well enough to do the job. I might be wrong. And I would love to be – as I think there are some academics who have the requisite combination of skills and – tenure is a nice safety net when doing the job right means you have to upset a lot of people. Beyond that, finding academics who are Republicans, much less Trump supporters, is a difficult task. Putting all of that aside there are at least a few academics that would be on my own short list: Thom Lambert (Missouri Law) and Todd Zywicki (Scalia Law) are at the top of that list for different reasons. Lambert has deep antitrust and regulatory knowledge. There may not be a brighter antitrust mind in academia. Zywicki has FTC experience – and is deeply versed in consumer protection issues – which I am sure will make him a CFPB Director candidate. Still, I remain skeptical that an FTC Chairman is drawn from the halls of the academy.
Slow Lanes and Gridlock: Big Law
I’ll combine some of these because I think they are types that do get consideration for positions some years – but just will not this time around for one reason or another. Still, since you will probably hear about some of them as the rent-seeking race for nominations gets hot, we will mention them.
Perhaps the biggest omission from the list so far is Big Law. Presidents have loved to tap Big Law candidates for the FTC. Think Joe Simons, Christine Wilson, and Tom Rosch, among others. The experiment with Joe Simons (Paul Weiss alum) as Chairman is widely viewed as a failed one. Do not get me wrong. There are plenty of Big Law antitrust lawyers who are very talented, and would make good Chairman candidates. They are some who understand the stakes in historical context and would excel at the job. There are not many who also understand administrative law. Further, most practitioners with significant time left in their career as a practicing lawyer will return to Big Law after a stint in government service. This makes them less attractive on the margin if a big part of the agenda is to defang the FTC whose fangs and the work they create, to oversimplify, are the reason their practice is lucrative and successful. There are certainly exceptions – and in particular, retired antitrust lawyers who know exactly how harmful the Khan FTC has been in the context of the agency’s history in the 1970s and 1980s. If it were up to me, the Trump administration would consider antitrust legends that went through those wars. People like Tad Lipsky and Joe Sims, or to go a bit younger, Dave Wales. In any event, I do not think a Big Law Chairman is a likely addition to the Trump FTC.
I do think the lane construct is a useful way of thinking about potential candidates. I’ve named a few within the lanes I think are the most likely and discussed why I think some traditionally fruitful lanes will not be if Trump wins tomorrow. I certainly do not mean this issue to endorse one over another. And there are certainly other potential candidates in each of the lanes. So please forgive me if I’ve not named your favorite. But I wanted to start with some examples in each that are folks I think fit the profile and would be worthy candidates. If I were a betting man I would start with the sitting Commissioners – each of whom has proven quite capable, knowledgeable, and willing to fight. But to return to the general theme of the day – the key question for the next FTC Chairman is not just how active of an enforcer are you going to be, but rather what is your plan to allocate resources to both enforce the law and to undo the damage from the over-regulation over the past 4 years? What will you do with FTC resources? What about working with Congress? What about FTC amicus and advocacy efforts? What is your first speech about?
Soon enough we can spend some time here talking about what a plan might look like. I certainly have some ideas and have shared some of them here and here. If Trump wins tomorrow I will spend some more time writing about those ideas in detail, and perhaps talk a bit more about candidates as well as the DOJ. I’ll also want to write more about how the Trump administration can effectively use the Whole of Government Executive Order (or a version of it) to effectuate its goals. If Harris wins, well, we will turn to other topics! And what happens to the Khan FTC when Lina leaves? Until then, Happy Election Night Eve.
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