This is an insanely misinformed take - Lina Khan's FTC has done more in the last year than they have in the preceding decade, despite a significant baked-in culture that dismisses even the concept of antitrust as being harmful. Can you point to some examples of her poor execution?
> Google will pay their lawyers a similar amount and the FTC is likely to lose again bc their case is weak!
I cannot claim to the same prior knowledge as you, but I can read a news article as well as the next person. I am not sure how you can interpret this case as a loss for the antitrust bar, no matter whether Google wins or loses.
* Set Google's claims that default search placement is not a meaningful barrier to entry next to the fact revealed in litigation that they paid 26 billion dollars for default search placement in 2021
* Communications with Apple have revealed a company so cozy with Google, that the tone is of two major players effectively dividing up the market. Even Apple partisans like John Gruber have called out Apple's hypocrisy in benefitting from this arrangement: https://daringfireball.net/linked/2023/10/27/google-aggregat...
* Internal communications were revealed that show Google choosing to goose ad rates without the slightest concern for a decline in sales — a clear sign of market power.
Of course, I don't think Judge Mehta has a great track record on this? So whether Google will lose the case is no sure thing.
But without Khan, these facts and figures are simply not here, and we are not having this debate. So while I can see some basis for your claim that Khan is a failure, I can't actually line it up with reality as I see it very well. The conversation around antitrust has changed, without a doubt, and while there a myriad reasons for that, we have to give Khan her due if we are to acknowledge that anyone has any impact on the course of human affairs at all.
I understand that the standard measure of every legal bureaucrat/official's effectiveness is their record, but as a member of the public I could give a shit. Actually, I think the obsession with perfect judicial records creates a bunch of perverse incentives and overall is poor metric of effective governance.
>Filing these speculative long shot cases wastes the FTC’s valuable time.
You know what a bigger waste of the FTC's time is? Being completely unwilling to take on any big players for years at a time because you might lose, regardless of how blatantly the flout the spirit of the law. The public loses trust in and the business community loses respect for the institution, and society suffers as a whole. It's a free pass for abysmal behavior at the highest levels.
>There are important mergers which don’t get attention bc Lina is wasting her time with Microsoft and Google.
What are these mergers and how can you be sure they didn't get any attention? Were they yet another handful of guaranteed winners that would not move the needle whatsoever when it comes to societal effects of blatant abuse of monopoly power?
> public loses trust in and the business community loses respect for the institution
To the degree Khan has been successful, it’s in the former. She has been performative, which makes the public feel good. But also ineffective, which makes business happy. (Two corporate lawyers at national firms, familiar names in Silicon Valley, have advised me to rush mergers under this FTC. You’ll get sued. But they’ll drop the ball or settle, and then the deal is done.)
Strongly disagree. Her job is to win cases and be the figurehead for a change in tone where we stop letting monopolies run the country, and she's doing the latter admirably.
If America could get their shit together we'd pass stronger antitrust laws that make winning these cases easy. It is unreasonable that it takes so much work to fix things that are obviously horrible for almost everybody.
But she's the FTC chair not the legislature. She has to work with the laws as they are not as she wants them to be. I don't believe her role is to be a figurehead for legislative change.
The very fact that the FTC is "doing things" is a complete breath of fresh air. When it fails to do them, that's a sign that the system is rigged against them working (or that the laws we need to ban the things that suck aren't in place yet). It's part of a larger movement.
It sucks that the FTC fighting uphill battles is the only way to make the changes we need. In a better world, the citizenry could make it happen through class-action suits, but the laws we need to have a better world don't exist yet.
I disagree. You don’t necessarily have to win big cases. You just have to show that you are willing to take them to court, and that alone projects power. The result is that companies are less likely to file dubious mergers, and this is exactly what we want and what is happening:
> You just have to show that you are willing to take them to court
This only deters small firms. If you can afford to fight, it’s currently worth it. The FTC will show up unprepared [1], and you will win. Wall Street loves Lina.
*If* you are taken to court, it’s probably always worth the fight, losing such a trial has massive consequences.
However, in the past, that was an empty threat, the FTC would only take cases to court that they would win 100% - which vastly errs on the side of caution. It also meant that you could basically expect never to be challenged on a merger.
That has changed now. Now, there is a real chance that your mergers and anticompetitive behavior will get examined and THAT is the deterrent. The new FTCs behavior causes ripples long before an actual court case.
There is a difference between „I will never get taken to court“ and „I will probably get taken to court, and then I will probably win but honestly, all bets are off“.
> She has lost her big cases! She is ineffective. That’s the metric which matters.
I posted this above, but I am going to repost it just to make sure the point is made (sorry if it feels like I am spamming).
From [1]
> You wouldn’t realize this success if you listen to the conventional wisdom in politics, because Wall Street is pushing a public narrative that antitrust agencies are losing in courts, and therefore they are losing their ability to stop deals. But this isn’t true, because if it were, you wouldn’t see regular reports from business publications lamenting the decline in deals, and writing things like “The average size of mergers completed is now at the lowest level in 20 years.” And you wouldn’t have deal-makers on CNBC calmly describing how hard it is to get mergers done.
So what you claimed as the only metric that matters isn't true, but why let facts get in the way of a good soapbox.
Also since you are an economist and clearly misinformed about how law works, let me add this bit of nuance. You cannot win cases when judges will deliberately misinterpret the law Congress passed. From [2]
> And yet, this epiphany, that markets are politically structured and don’t have a will of their own, hasn’t made it to one very important place: the judiciary. The same week Sullivan gave his speech, a panel of three D.C. Circuit Court judges struck down a monopolization case against Facebook on the grounds that markets self-correct. "Many innovations may seem anti-competitive at first but turn out to be the opposite,” wrote the panel, “and the market often corrects even those that are anti-competitive." The D.C. Circuit Court panel was bipartisan, and included Republican appointees Karen L. Henderson and Raymond Randolph, as well as Obama appointed judge Robert Wilkins.
> These words undermine Congressional statute, and may devastate the ability to use antitrust law against digital platforms, at least in the D.C. Circuit. The specific procedural question was on the right of state attorneys general to bring an antitrust case over a violation that happened years earlier, as Federal enforcers can. Three judges made a policy decision to disallow that, even as Congress had just passed a law a few months earlier to make it easier for states to participate in antitrust enforcement.
> In other words, the power of judges is massive, and judges openly and often thwart the will of Congress. And this power is not necessarily based on partisan or traditional ideological affiliations.
Deliberate or not, a large part of the judiciary has been brought up in an environment where mergers are good and markets will magically correct this otherwise. That obviously needs to change and will take more time. Also Biden nominating judges that worked to get mergers done doesn't really help.
I think she certainly has pounded the table, and started a bunch of actions, but I am not sure what she has actually accomplished / delivered so far. I think she hasn't yet delivered any meaningful results yet, so I will reserve my judgement till there's any real outcome.
