In October the Federal Trade Commission (FTC) released a draft of their Strategic Plan for Fiscal Years 2026-2030 as required by the government’s Performance and Results Act. Passed in 1993 as part of Bill Clinton’s efforts to “make government work better and cost less,” the program required federal agencies to prepare a “strategic plan” detailing their “mission, goals, achievement methods, and evaluation efforts.”
The FTC may have satisfied their duties under the Government Performance and Results Act. However, as Alex Reinauer of the Competitive Enterprise Institute observed, the FTC did not meet the legal obligation under 2018’s Foundations for Evidence-Based Policymaking Act. That bill requires federal agencies to ensure that their strategic plans include a “systematic plan for identifying and addressing policy questions relevant to the programs, policies, and regulations of the agency.” This includes a list of which policies the agency plans to pursue.
In order to be helpful to the FTC , I have some suggestions the agency can adopt as part of its strategy. My suggestions reflect the return of the phrase “without unduly burdening legitimate business activity” to the FTC's mission statement. The commitment to avoiding undue burdens was removed by Biden-era FTC Chair Lina Khan. Restoring the mission statement’s commitment to not unduly burden businesses is a good first step in repudiating Lina Khan’s destructive legacy. However, FTC Chair Andrew Ferguson must go further and officially restore the consumer welfare standard as the guiding principle of antitrust law.
As the name suggests, the consumer welfare standard judges a business’s actions by how they affect consumers. This parallels the market’s test for success. As the leading proponent of the consumer welfare standard, Robert Bork (in discussing the per se rule, which applies to all antitrust policy) said, “the only value that the per se rule implements is consumer welfare, since it necessarily implies a legislative decision that business units should prosper or decline, live or die, according to their abilities to meet the desires of their consumers.”
The consumer welfare standard was the guiding principle of antitrust law from the Reagan years until President Biden (or whoever was running the autopen that day) put Lina Khan in charge of the FTC and Jonathan Kanter in charge of the Justice Department’s Antitrust Division. Khan and Kanter replaced the consumer welfare standard with a return to the “big is de facto bad” standard. However, they updated this standard to allow the federal government to challenge almost any merger or acquisition—even ones that would benefit consumers by making businesses more efficient.
Chair Ferguson, and Gail Slater, President Trump’s pick to head the Justice Department’s Antitrust Division, are marked improvements over their predecessors. However, they are committed to a Khan/Kanter approach to antitrust policy when it comes to “big tech.” Under the leadership of Ferguson and Slater, the government has pursued high-level antitrust cases against Amazon (who is the subject of two lawsuits), Meta (parent company of Facebook, Instagram, and WhatsApp), and Alphabet (parent company of Google and YouTube).
The desire to use Khan-like tactics against big tech and other companies viewed as enemies of MAGA may explain why Ferguson and Slater are retaining the 2023 Revised Merger Guidelines. These guidelines made Khan-Kanter style “hipster” antitrust the official approach to FTC policy. Ferguson should amend the FTC’s Strategic Plan to include a statement of intent to reverse course and withdraw the 2023 guidelines; thus restoring the consumer welfare standard.
Ferguson should also commit to withdrawing Chair Khan’s revisions to the Hart-Scott-Rodin Act (HSR) pre-merger notification form. This form must be filed with the FTC and the Justice Department by businesses planning a “significant” merger or acquisition in order to obtain “pre-approval” of the transaction. According to the FTC’s own estimate, then-Chair Khan’s proposed changes to the HSR form would increase the time it takes to complete the form by approximately 68 hours!
An analysis by the Vinson and Ellis law firm showed that the revisions add “significant additional burdens for filing parties, including expanded document productions, increased reporting of buy-side structures, minority shareholders, and information about certain officers and directors, and new narrative responses about relationships between the buyer and the target.”
The requirement that the FTC release a strategic plan provides a (so far) missed opportunity for Ferguson to return to the consumer welfare standard. Hopefully he will take advantage of this chance to lay out a strategy that frees the American economy from both Lina Khan-style antitrust and its right-wing variant Khanservatism.
