Khan Job

In September 2021, three months into her now-ended tenure as chair of the Federal Trade Commission (FTC), Lina Khan circulated a “Vision and Priorities” memo that read less like a law-enforcement agenda than a political-economy manifesto. The agency, she declared, is “a public body whose work shapes the distribution of power and opportunity across our economy.” She outlined three priorities: confronting “rampant consolidation” through aggressive merger enforcement; cracking down on “dominant intermediaries” that “hike fees, dictate terms, and entrench their market power”; and eliminating one-sided contract terms such as noncompetes and repair restrictions.

The moment seemed tailor-made for such ambitions. The Biden administration had issued a sweeping executive order on competition, and Khan had already made a national name with her 2017 Yale Law Journal student note, “Amazon’s Antitrust Paradox,” which argued that consumer-welfare antitrust could not address the real harms of concentrated corporate power. At 32, confirmed by the Senate just four years out of law school, she became the youngest chair in FTC history.

Today, much of that agenda lies in ruins. Courts have blocked or dismantled nearly every major initiative that Khan launched. Merger enforcement produced a few wins: Kroger–Albertsons, Illumina–GRAIL, and Tapestry–Capri. But those cases rested on conventional legal theories that career staff would likely have pursued under almost any chair. Khan’s signature projects—competition rulemaking, novel litigation theories, and a campaign against “dominant intermediaries”—met a different fate. Courts rejected them, or the administration quietly shelved them, damaging the FTC’s institutional credibility.

Khan arrived at the FTC famous for her Amazon argument, but her “Vision and Priorities” memo revealed a broader ambition. The goal was not merely to win cases but to change how the agency governs markets.

Traditionally, the FTC has enforced competition law case by case. That process is slow and costly and—Khan argued—does little to reshape the underlying structure of markets. Her memo instead promised a focus on “structural incentives,” not individual bad actors. The implication was a different kind of FTC: one that would write rules binding entire industries at once.

Rulemaking became the logic behind nearly everything that followed. If the agency could define unfair practices across whole markets, it would no longer need to pursue violations firm by firm. Why challenge noncompetes employer by employer when the FTC could ban them nationwide?

Khan and Rohit Chopra had previewed the strategy in an academic paper arguing that the FTC’s reliance on case-by-case adjudication had produced a system that “generates ambiguity, drains resources, and deprives individuals and firms of any real opportunity to participate.” They contended that the FTC possessed statutory authority to issue substantive competition rules, a power largely dormant since the 1970s.

The test case was a nationwide ban on noncompete agreements, finalized in April 2024 on a strict 3–2 party-line vote by the FTC’s five-member commission, whose majority is held by the president’s party.

Four months later, a federal court in Texas struck the rule down, vacating it nationwide. The court held that the FTC lacked authority to issue such a sweeping regulation. It also found the measure arbitrary and capricious—a categorical ban that ignored both the potential benefits of noncompetes and less sweeping alternatives.

A narrower rule targeting the most abusive agreements—or case-by-case enforcement against specific employers—might have survived. We will never know. Khan chose the categorical ban in part because the broader goal was to establish the FTC’s rulemaking authority itself. The gamble failed. In September 2025, the commission voted 3–1 to dismiss its appeals and accept the rule’s vacatur, effectively killing the competition-rulemaking strategy.

Khan’s FTC finalized the first major overhaul of the premerger-notification form required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, a law that mandates advance federal review of large mergers. By the agency’s own estimate, the new form nearly tripled average preparation time—from 37 hours to 105 hours per filing—adding roughly $139 million in annual compliance costs across all filers. The U.S. Chamber of Commerce put the burden far higher, estimating that per-filing costs would rise from about $80,000 to more than $300,000.

The revised form required detailed narratives about competitive overlaps, labor markets, and even draft term sheets, information that filing parties argued went well beyond what the statute authorizes the FTC to collect.

The core problem was proportionality. Only about 2 percent of HSR filings trigger deeper investigations, let alone complaints. Yet the new form imposed mandatory disclosures on every filer, forcing firms to produce far more information than the agencies typically request from the small share of transactions they actually scrutinize.

The FTC never demonstrated that anticompetitive mergers were slipping through for lack of information. The practical effect was to raise the cost of filing itself, deterring marginal transactions by making compliance punishingly expensive.

In February 2026, the U.S. District Court for the Eastern District of Texas vacated the rule as arbitrary and capricious, finding that the FTC had failed to show that the benefits outweighed the costs. The court noted that the agency opens investigations into only about 8 percent of HSR-reported mergers, meaning that 92 percent of filers bore the added burden for no regulatory payoff.

The Fifth U.S. Circuit Court of Appeals has stayed the ruling, pending appeal. Still, the episode highlighted a recurring problem: even when Khan secured bipartisan support, stretching beyond statutory authority left the rule vulnerable in court.

In August 2022, the FTC issued an advance notice of proposed rulemaking on “commercial surveillance and data security,” posing 95 questions on data collection, algorithmic decision-making, targeted advertising, “dark patterns,” and cybersecurity practices. The scope made clear that the agency was positioning itself as a broad regulator of the digital economy. Commissioner Noah Phillips objected that the effort would turn the FTC into a de facto legislature, regulating issues such as discrimination and labor practices far beyond the agency’s traditional expertise.

The FTC Act of 1914 (establishing the agency) imposes clear limits. To issue such a rule, the agency must show that the targeted practices are “prevalent” and weigh the regulation’s costs and benefits. The FTC never came close to meeting that burden.

The legal terrain had also shifted. After the Supreme Court’s ruling in West Virginia v. EPA (2022) and the rise of the major-questions doctrine, a rule this sweeping would have required clear congressional authorization. The FTC plainly lacked it. Commissioner Phillips observed that he might have supported a narrower rule, focused on data security alone. Instead, the FTC tried to regulate much of the digital economy in a single rulemaking. The effort never progressed past the comment stage.

Congress enacted the Robinson-Patman Act (RPA) in 1936 to prevent large retail chains from using their purchasing power to secure better prices from suppliers than smaller rivals could obtain. Economists have long criticized the law for protecting competitors rather than competition, effectively punishing large buyers for negotiating lower prices that benefit consumers. The FTC had not brought an RPA case in more than 25 years. (The statute allows private rights of action, and private plaintiffs have continued to bring suits under it.)

Khan’s FTC revived the law in its final weeks, filing two cases just before the presidential transition: one against Southern Glazer’s Wine & Spirits in December 2024 and another against PepsiCo on January 17—three days before the handoff. New chair Andrew Ferguson’s FTC quickly moved to unwind one of them. The commission voted 3–0 to dismiss the PepsiCo case, with Ferguson calling it “purely political” and unsupported by evidence. Commissioner Melissa Holyoak, dissenting when the case was filed, had called it the worst case she had seen during her time at the FTC. The Southern Glazer’s case survived a motion to dismiss and remains pending.

RPA cases are difficult for a reason. Plaintiffs must show that price differences “may substantially lessen competition,” not merely that prices differ. The PepsiCo complaint tried to bypass that requirement by recasting routine volume discounts as unlawful promotional payments, turning standard pricing practices into automatic violations. As Holyoak wrote in dissent, the theory “avoid[s] the requirement of a substantial lessening of competition.”

This looked less like “rebuilding the muscle,” as Khan put it at a 2023 event at Georgetown Law, than a last-minute effort to revive a statute that many antitrust scholars believe Congress should have repealed long ago.

Section 5 of the FTC Act prohibits “unfair methods of competition,” language broader than that of the Sherman and Clayton Acts. In practice, however, the FTC has rarely used it as a stand-alone tool; most competition cases rely on those other statutes. Khan aimed to change that.

In November 2022, the FTC issued a new policy statement defining “unfair methods of competition.” The document explicitly rejected the regnant consumer-welfare standard, popularized by Robert Bork, that evaluates antitrust violations primarily by whether conduct raises prices or otherwise harms consumers. Khan described the move as restoration rather than revolution. “Today’s policy statement reactivates Section 5 and puts us on track to faithfully enforce the law as Congress designed,” she said, calling the previous policy “an abdication of the Commission’s statutory mandate.”

If the old approach was an abdication, however, the results of the new one were puzzling. The FTC brought few—if any—cases under the new stand-alone theory during Khan’s tenure. The problem was the standard itself. The policy statement abandoned cost-benefit analysis in favor of vague “fairness” criteria. Without a workable legal framework, it left litigators with little to take into court.

Legal scholars Dan Gilman and Gus Hurwitz argued that the statement was “untethered from consumer welfare and the rule of reason,” replacing economic analysis with subjective labels such as “coercive” and “exploitative.” Those terms, they noted, offered no clear limiting principle. The statement functioned more as a declaration than a litigation strategy. Ferguson’s FTC withdrew it shortly after taking over.

One initiative did survive, at least on paper. Merger guidelines adopted in 2023 made it easier for the FTC and the Antitrust Division of the U.S. Department of Justice to challenge mergers and to be more receptive to theories involving potential competitors, platform markets, and serial acquisitions, while making it tougher for firms to defend deals on efficiency grounds. Both the FTC and DOJ under the Trump administration say that they intend to keep the guidelines.

But guidelines are not law. Their force depends on how courts receive them. The lower thresholds for challenging mergers rest on thin empirical support, and sidelining the efficiencies defense would risk encouraging courts to block deals without weighing their benefits. The guidelines remain on the books, but their practical impact is uncertain.

The initiatives described here all share the same flaw: overreach. Noncompetes can be abusive, but a categorical ban was indefensible. The HSR filing form may have needed updating, but tripling the compliance burden—beyond statutory authority—invited judicial reversal. A 95-question rulemaking covering the entire digital economy was never likely to become a rule. A more disciplined FTC might have secured narrower, durable reforms. Khan’s FTC secured none.

Rulemaking and policy statements rarely generate headlines as merger battles do. Yet that agenda defined Khan’s FTC and embodied its central goal: stop litigating one firm at a time; instead, write rules that reshape markets across the economy.

That theory is now dead. Even in merger enforcement, where the FTC traditionally holds its strongest hand, the record proves less impressive than the headline victories suggest.

The memo’s first priority was merger enforcement—what Khan described as confronting “rampant consolidation.” Khan’s FTC later claimed a 93.75 percent merger-litigation success rate, higher than under prior administrations. But the figure collapses under scrutiny. The Information Technology and Innovation Foundation found that, of the 66 actions that the FTC listed as “challenging illegal mergers,” nearly half involved deals abandoned without a legal challenge. Of the 12 supposed “competition wins in court,” four amounted only to surviving motions to dismiss.

The losses came from novel theories. The FTC failed in its attempt to block Microsoft’s $69 billion acquisition of Activision Blizzard; a federal court denied the preliminary injunction, the deal closed, and the Ninth Circuit affirmed in 2025. It also lost its challenge to Meta’s acquisition of Within, a virtual-reality fitness app, where the court accepted the agency’s legal theory but found the evidence insufficient. And in November 2025, the FTC lost its retrospective challenge to Meta’s acquisitions of Instagram and WhatsApp, with the court concluding that Meta is not a monopolist.

The wins, by contrast, came from traditional enforcement theories. Illumina–GRAIL, arguably the most distinctive triumph of Khan’s tenure, involved a firm acquiring a company developing a competing product, a straightforward theory of competitive harm. The Fifth Circuit upheld the liability finding but criticized the remedy; Illumina divested GRAIL anyway.

The FTC also secured preliminary injunctions blocking Tapestry–Capri—the “affordable-luxury” handbag merger—and, most prominently, the $24.6 billion Kroger–Albertsons grocery merger. While the Kroger–Albertsons complaint also included a novel labor-monopsony claim, the court granted the injunction on traditional product-market grounds alone, declining to reach the labor theory for lack of evidence. Instead, these cases relied on familiar theories: direct competitors merging in ways likely to raise prices. Career staff litigators would have pursued them under almost any administration.

Khan’s role lay primarily in case selection and strategic direction; the cases reflecting her distinctive agenda lost. The traditional cases, built on conventional theories and litigated by career staff, won. Staff attorneys investigate and try the cases; commissioners vote on whether to file complaints but do not conduct investigations or argue in court. The victories were staff victories.

The memo’s second priority targeted “dominant intermediaries”—the gatekeepers that “hike fees, dictate terms, and protect and extend their market power.” The signature target was Amazon. Khan’s career-making argument held that price-focused antitrust cannot capture Amazon’s harms.

Yet when the FTC sued Amazon in September 2023, the complaint relied on . . . price effects. The agency alleged that Amazon imposed a 50 percent “tax,” “degrad[ed] the services it provides,” and “extract[ed] monopoly profit.” Notably absent was any allegation of predatory pricing, the theory that defined Khan’s law school note and launched her career. The case proceeded squarely within the framework that Khan had spent her career criticizing.

The same pattern appeared elsewhere. Testifying before the Senate in September 2022, Khan warned that when “markets become more consolidated and less competitive, prices rise, wages fall,” language drawn directly from the consumer-welfare framework that her academic work rejects.

The gap between theory and practice reveals the theory’s limits. Perhaps the old system understood something that Khan’s did not.

The memo also promised to “further democratize the agency” and adopt a “holistic approach” to harms beyond consumer prices. Khan used the FTC chairmanship as a public megaphone more than any predecessor, through op-eds, speeches, media appearances, congressional testimony, and, after leaving office, a New York Times column. She succeeded in putting antitrust on the front page.

Attention, however, is not the same as institutional power. Mergers and acquisitions declined during her tenure, but interest rates rose sharply, making it hard to separate the effects of monetary policy from any deterrent impact of FTC enforcement. Even if enforcement did deter deals, deterrence benefits consumers only if the blocked mergers were anticompetitive. If unpredictable legal theories also discouraged pro-competitive transactions, deterrence itself could have imposed real costs.

The internal view from career staff appeared less charitable. A February 2024 report by the House Judiciary Committee quoted one manager bluntly: “I’m not sure being successful (or doing things well) is a shared goal, as the Chair wants to show that we can’t meet our mission mandate without legislative change.” If accurate, that comment reframes the agency’s litigation record. Losses become strategy: lose in court, and then tell Congress that the FTC lacks the authority it needs. Win by losing.

Khan herself hinted at this logic at a 2022 conference, suggesting that, even if agencies believe “current law might make it difficult” to establish a violation, “there’s a huge benefit to still trying.”

The strategy has an obvious flaw, though. A courtroom loss sends a useful signal only if the agency was genuinely trying to win. Once Congress suspects that an agency may prefer to lose, every defeat becomes ambiguous, and the signaling value disappears. (That assumes that blocking the merger would benefit consumers, a separate debate.)

The approach also consumes its own credibility and diverts scarce resources. The high-profile cases meant to shift the debate absorbed staff time that could have gone to what line attorneys called “problematic deals” that instead “go unreviewed.”

Staff complaints at the FTC concerned how the agency was being run. Nearly 100 employees left the FTC in 2021 and 2022, the highest number for any comparable period since 2000. A strong labor market may explain some of those departures. But the Federal Employee Viewpoint Survey suggests a deeper problem. In 2020, 87 percent of FTC employees agreed that senior leaders “maintain high standards of honesty and integrity.” By 2022, that figure had fallen to just 49 percent. The FTC went from the best-ranked agency on this measure to the worst.

As outgoing commissioner Christine Wilson wrote in her February 2023 resignation op-ed: “Many FTC staffers agree with Ms. Khan on antitrust policy. . . . [T]he data convey the staffers’ discomfort with her means, which involve dishonesty and subterfuge to pursue her agenda.” Even employees who shared her policy goals no longer trusted her leadership. The Bureau of Economics, long the agency’s internal check on cases for economic merit, was sidelined. Its director resigned after methodological disputes with Khan’s team, leaving the post vacant for ten months.

Khan also revised the FTC’s internal rules of process, consolidating hearing control under the chair, eliminating the staff-report requirement, and reducing administrative-law-judge independence, all in the name of “streamlining” rulemaking.

The same impatience with procedure appeared elsewhere. The FTC skipped statutory steps it had not formally eliminated—a preliminary regulatory analysis for a “click-to-cancel” subscription rule, which would require companies to make cancellations as easy as sign-ups, and the advance notice of proposed rulemaking for the CARS auto-dealer regulation, governing dealers’ sales and financing disclosures. Courts later vacated both rules on those procedural grounds alone, without reaching the merits.

Congressional reports examining Khan’s management—from the House Judiciary Committee in February 2024 and the House Oversight Committee in October 2024—are partisan documents. But the internal quotes they surface come from FTC employees. One manager emailed leadership: “The people who communicate with you most are afraid to tell you anything you don’t want to hear.” Asked what had improved under Khan, one director replied: “A few things, though none come to mind.”

Khan’s agenda required institutional capacity to execute. Her management style depleted the very capacity she needed. You cannot revolutionize an institution while driving out the people who know how it works.

What, then, is Lina Khan’s legacy? The 2023 merger guidelines survived, and leaders from both parties say that they intend to keep them. FTC v. Amazon survived a motion to dismiss and is headed toward a March 2027 bench trial. That’s about it. The noncompete ban has been removed from the Code of Federal Regulations. The Hart-Scott-Rodino overhaul has been struck down, though the ruling is on appeal. The commercial surveillance notice never became a proposed rule. The stand-alone Section 5 theory, if it can be called that, produced no case law. The retrospective Meta challenge failed on the merits.

Run through the memo’s three priorities, and the results look the same everywhere. The merger-enforcement wins rested on traditional theories that any FTC would have used. Sure, Amazon is pending. But the “dominant intermediary” agenda stalled. The FTC lost against Meta. Competition rulemaking is dead.

Khan arrived declaring that the FTC “shapes the distribution of power and opportunity across our economy.” She left touting junk-fee bans, a click-to-cancel rule, and a merger win rate that does not withstand scrutiny. Courts have since vacated the click-to-cancel and CARS rules on the same procedural grounds as the noncompete ban; the FTC skipped the cost-benefit analysis the law requires. Even the consumer-protection side of the ledger is shrinking. As Daniel Francis of New York University has argued, Khan’s “revolutionary” neo-Brandeisian program ultimately failed, while welfarist antitrust survived the challenge with its credibility intact. But the movement announced itself.

Maybe her wins are really outside the courtroom. After all, Khan put antitrust in the spotlight as no FTC chair had managed in decades. She forced a national debate over whether the consumer-welfare standard remains adequate and showed that a constituency exists for aggressive competition enforcement. Weeks after leaving office, Khan published a New York Times op-ed arguing that the Chinese AI firm DeepSeek proves that American monopolies threaten national security. “Breakthrough innovations,” she wrote, “have historically come from disruptive outsiders, in part because huge behemoths rarely want to advance technologies that could displace or cannibalize their own businesses.”

That claim underscores the unresolved question of her project: Which markets can self-correct, and which cannot? Without a limiting principle, her framework offers no way to tell. And celebrating creative destruction—the very process her tenure sought to replace with government intervention—raises an obvious problem. If hungry startups can cheaply disrupt monopolies, the case for an activist FTC becomes much harder to sustain.

Khan’s theory of change held that an ideologically committed FTC head could revolutionize enforcement through sheer will. The theory did not survive contact with the courts. The signature initiatives failed. The institution strained under the effort. A year later, courts are still vacating what Lina Khan left behind.

Khan’s FTC tenure failed, but the movement she represents is spreading. New York Mayor Zohran Mamdani won office channeling the same populist anger at corporate power. Khan herself, at 37, remains that sentiment’s most visible champion. (And Mamdani, it’s worth noting, appointed her as cochair of his transition team.) But a constituency is not a legal theory, and Khan’s tenure proved that the distance between populist energy and durable policy reform is measured in courtrooms.