Antitrust Issues And President-elect Trump: A Discussion With Ashley Baker

The video can be viewed here.

The full text is below and be viewed in the PDF here.

Antitrust Issues and President-elect Trump: A Discussion with Ashley Baker

Paul Steidler: Hello, I’m Paul Steidler with the Lexington Institute, and I’m joined today by Ashley Baker, Executive Director of the Committee for Justice.

President Trump has recently announced key antitrust appointments. He has named Gail Slater, an Economic Advisor to Senator JD Vance, to serve as the Assistant Attorney General for Antitrust in the Justice Department.

The President has also announced he will name Andrew Ferguson, currently an FTC Commissioner, to Chair the FTC (Federal Trade Commission) something that does not require Senate approval. And the President will also nominate Mark Meador, a former aide to Senator Mike Lee and a prominent attorney, to be an FTC Commissioner. He will replace, upon confirmation, Commissioner Lina Khan.

Ashley is a nationally renowned expert on administrative law, examining issues at the intersection of the courts, regulation, and technology. She is the founder of the Alliance on Antitrust Coalition, has testified before the U.S. Senate on antitrust law, and has worked closely on efforts to confirm three U.S. Supreme Court nominees. Ashley, it great to have you with us.

Ashley Baker: Thank you for having me, Paul.

Paul Steidler: From a broad policy standpoint, what are the characteristics of sound antitrust policy?

Ashley Baker:  From more of a 30,000-foot level without getting into too much detail, what I would consider a sound antitrust policy is something that protects consumers by protecting what we refer to as the competitive process.

Antitrust enforcement is used against conduct that is likely to harm consumers as a result of harm to competition. And another characteristic of sound antitrust policy is what it doesn’t do. It shouldn’t be used for things other than the antitrust laws itself. It should not be used to achieve socioeconomic goals or other policies that are entirely unrelated to antitrust law.

Paul Steidler: And in general terms, how are the expected policies of the incoming Trump administration likely to be different than those of the Biden administration?

Ashley Baker: Well, I think generally a lot different, both in policies and we will be hearing a different tune. After four years of experiencing the Biden Administration in action through mostly the FTC, but also the DoJ, I think there’s a broad political demand for something different than Lina Khan’s FTC and Jonathan Kanter’s DoJ.

For the first time in a long time these issues are very relevant to the American people because they have been hearing time after time over the past four years about certain FTC actions and how that has created a lot of business uncertainty. How it’s hampered innovation. They have heard more about that than they have about supposed violations of antitrust law.

So, I think after that experience we’ll be seeing something quite a bit different.

Going by each of the agencies, starting with the FTC, incoming Chairman Andrew Ferguson, during his campaign for chairman, floated a document of what his views are and what his policies would be, and what the FTC under him would do. Notably, he mentioned stopping Lina Khan’s war on mergers. I would definitely categorize the current Biden FTC as being above else all just anti-merger in general.

Ferguson also says in this document, “Most mergers benefit Americans and promote the movement of capital, that fuels innovation. Focus FTC resources on the mergers that harm competition and hinder innovation while permitting mergers that keep capital flowing to innovators.”

That’s a very important point. I think overall, we’ll see antitrust enforcement as there should be antitrust enforcement.

We will stop seeing this broad anti-merger conduct that either stops mergers through litigation or prevents them from happening in the first place, just through threats. That is another thing that the Khan FTC has continuously bragged about: the number of mergers that they say have been stopped in the boardroom because they just didn’t want to go through the process, because that was too much of a threat.

Moving on to the DoJ, we know a little bit less there.

But one thing is that Gail Slater has real knowledge of both antitrust law and of technology. One way the Trump DoJ might be different from the Biden DoJ is Slater is probably unlikely to continue Jonathan Kanter’s policy of threatening criminal prosecutions for previously civil violations of Section 2 of the Sherman Act.

More broadly, Gail Slater formerly worked at the FTC. She has also worked for and represented companies. This means that she does understand the real-world consequences imposed by these bureaucratic delays in the merger process and by this general regulatory uncertainty that has been created by the Biden administrations.

So, at both agencies, I think we could see both strong antitrust enforcement when needed, combined with an equally aggressive focus on deregulation and maybe streamlining some processes and procedures in a way that makes a lot more sense and gives a lot more certainty to those parties who are merging.

Paul Steidler: Concerning antitrust enforcement, there has been recent discussion about combining the antitrust enforcement actions of the FTC into those of the U.S. Department of Justice as part of the DOGE effort. Is that a good idea?

Ashley Baker: Yes. I think more generally the Department of Government Efficiency (DOGE) is a great opportunity for us to all think about the competition enforcement design of the two agencies which share this dual overlapping authority.

The merger clearance process, for example, might as well be a coin toss between which agency is assigned to you, as a merging party, to review your merger. We discussed this at length in our brief in Axon v. FTC which was a case the U.S. Supreme Court decided in 2023. We discussed how it’s very unfair that if you’re assigned to the FTC, and not the DoJ, you could potentially not have your case heard immediately by an Article III court.

You could go to what they call the Part 3 process, which is the in-house tribunal of the FTC. So, that part of it is unfair.

And it’s also just inefficient to have two agencies essentially doing the same thing. There are a lot of bureaucratic delays, and inefficiencies, so that could be streamlined.

DOGE, for example, could encourage Congress to pass the One Agency Act, a piece of legislation that’s out there right now. It has been introduced a few times throughout the years and was originally introduced by Senator Mike Lee.

It would take antitrust enforcement from the FTC and place it all under the DoJ, which would not rid us of the FTC entirely. It would take the antitrust enforcement to the DoJ, house it all under there, under one department, which does have enforcement powers and does represent the views of the United States. The FTC would be left to enforce its consumer protection mandate, where appropriate.

Paul Steidler: What else is important to know at this time of transition?

Ashley Baker: There’s a lot going on in antitrust right now. One thing I would highlight is the tension that we have between the courts and the agencies, and how that could potentially play out down the road when it comes to some of the rulemaking actions of the FTC. And some of the non-rulemaking.

For example, this summer in the Supreme Court in their Loper Bright decision rightly overturned the 40-year-old Chevron Doctrine under which the courts deferred to a federal agency’s interpretation of ambiguous language in the laws it administered.

Federal judges are now going to rely on their own interpretation of ambiguous provisions, and this could apply to everything such as the FTC’s effective ban on non-competes, how that is interpreted, and whether or not they are correctly applying Section 6(g) the FTC Act, to FTC’s interpretation of its Section 5 policy statement from 2022. I think it’s fair to say (the Section 5 statement) goes far beyond what the statute says and what it intended.

Then, you have this broader trend that I think we’ll be seeing post-Loper Bright that applies to things that aren’t explicitly rulemaking such as the merger guidelines. The merger guidelines have been relied upon by judges, not because the judges really had to, but because the merger guidelines in the past, before the Biden Administration overturned them and re-wrote them in a way that was not consistent with previous administrations, were predictable and reliable.

This gave companies some sense of the rule of the road. It gave judges something useful to refer to when it came to antitrust litigation. Now that they have completely reversed course, and overturned everything in the Biden Administration, what use are those guidelines? And now that judges are not necessarily relying on agency interpretation as much, we will see what happens.

Paul Steidler: Thank you very much, Ashley. For additional information about Ashley Baker and the Committee for Justice, please visit committeeforjustice.org. You can also find Ashley on X, or Twitter, at @andashleysays.

Ashley, it’s been great to have you join us today. Thank you very much, and best wishes for a great New Year.

Ashley Baker: Thank you for having me, Paul.