625. The Biden Policy That Trump Hasn’t Touched

Episode Summary

Executive Summary: The episode traces Lina Khan’s rise from antitrust researcher to FTC chair and examines her effort to revive aggressive competition policy against consolidation, monopolies, non-competes, and private equity roll-ups. It also highlights the irony that some of her merger guidelines survived and were retained by the Trump administration, underscoring the bipartisan force behind stronger antitrust enforcement.

Main Topics: Lina Khan’s path to the FTC (Priority: 5/5): Khan explains how post-crisis journalism plans led her to think tanks, law school, and eventually government antitrust enforcement, with early work on market consolidation shaping her worldview. Antitrust history and the Chicago School backlash (Priority: 5/5): The discussion reviews the Sherman Act, Clayton Act, FTC Act, and how 1970s-80s Chicago School ideas shifted policy toward under-enforcement and market self-correction. Amazon and digital-platform enforcement (Priority: 5/5): Khan connects her Yale paper 'Amazon’s Antitrust Paradox' to the FTC’s later lawsuit against Amazon, focusing on anti-discounting, fulfillment tying, and algorithmic pricing practices. FTC enforcement strategy and results (Priority: 5/5): Khan argues the FTC brought more ambitious cases and achieved notable wins, including merger blocks, private-equity challenges, and enforcement actions in health care and agriculture. Non-competes, labor markets, and worker mobility (Priority: 4/5): She describes the FTC’s attempt to ban non-competes as a labor-market reform aimed at improving wages, job switching, and entrepreneurship, despite mixed court outcomes. Merger guidelines and bipartisan antitrust (Priority: 4/5): Khan explains the new merger guidelines as a roadmap updated for digital markets, labor markets, and serial acquisitions; their retention under Trump is framed as evidence of bipartisan overlap. Corporate capture and future of antitrust (Priority: 4/5): The interview closes on the political and institutional stakes of antitrust, with Khan warning that concentrated corporate power shapes information, policy, and democracy itself.

Key Arguments: Consolidation has reduced competition across sectors, leaving consumers paying more and workers/farmers earning less. The Chicago School-era assumption that markets self-correct and monopoly power is fleeting is contradicted by decades of evidence. Amazon used consumer-welfare rhetoric and platform design to avoid scrutiny while building durable market power. FTC enforcement under Khan targeted modern forms of concentration, including serial acquisitions, private-equity roll-ups, and labor-market restraints. Non-competes are broadly harmful and often unjustified outside a narrow set of trade-secret cases. Merger guidelines matter because they shape deterrence, legal clarity, and market behavior before harmful deals occur. Antitrust is not just about prices; it also affects innovation, quality, worker mobility, and democratic power. Bipartisan support for stronger antitrust exists even amid broader partisan conflict, as shown by continued merger guidelines under Trump.

Data Points: Age at FTC appointment: 32 - Khan was appointed FTC chair by Joe Biden in 2021, becoming the youngest FTC chair in history. FTC founding year: 1914 - The agency she led was created in 1914. Antitrust law origins: 1890 - The Sherman Antitrust Act was passed in 1890. Additional antitrust laws: 1914 - Congress passed the Clayton Act and FTC Act in 1914. Law review paper title: Amazon’s Antitrust Paradox - Khan’s Yale law review article became widely influential. Merger guidelines length: 50 pages - Khan described the updated merger guidelines as a 50-page blueprint. Private comments received on non-compete rule: 26,000 - The FTC received 26,000 public comments after proposing a ban on non-competes. Estimated share of Americans covered by non-competes: 1 in 5 - Khan cited a conservative estimate that as many as one in five Americans were subject to non-compete clauses. Markup increase: ~20% to as high as 60% - She cited research showing average markups rising from around 20 percent in the 1980s to as high as 60 percent. Investigation length: 18 months - She helped lead an 18-month congressional investigation into Big Tech. Current trial year for Amazon case: 2026 - The FTC’s Amazon case was described as scheduled for trial in 2026. States joining Amazon suit: 18 states plus Puerto Rico - The FTC sued Amazon alongside 18 state attorneys general and Puerto Rico.

Pivotal Quotes: "I view the stakes here as being existential for our country." — Lina Khan: Khan on why antitrust and competition policy matter beyond technical regulation. "It's like being in your house when a tornado comes and wipes out everybody's house except for yours." — Former Biden administration official, quoted by host: A metaphor for the surprise survival of Khan’s merger guidelines under the Trump administration. "You need to place more value on feedback and input that is actually tethered to reality and tethered to facts." — Lina Khan: Khan on how public servants should handle criticism and assess policy feedback.

Implications: The episode suggests antitrust is becoming a durable bipartisan issue, with real consequences for pricing, wages, innovation, and market entry. Even as leadership changes, Khan’s framework may continue shaping enforcement and debate over corporate power.