Rise of the Neo-Khans; the Legacy of Biden's Antitrust Enforcement

Amazon, Google, Wal-Mart Grocery, and Pornhub. For better or worse, consolidated markets characterize the American competition landscape. Prior to the Biden administration, the penultimate antitrust enforcement question in regards to mergers was: is it anticompetitive or not? After the Biden administration, the enforcement question is: is it anticompetitive enough?

President Biden's non-conventional FTC Chair and leader of the so-called "Hipster (Brandeisian) Antitrust" movement is 34 year old, Lina Khan. Prior to Khan, the FTC's blockbuster merger bust-up was between telecom's AT&T and T-Mobile. The merger would have led to the largest telecom from the combination of the then numbers two and four telecoms. For some, that was controversial. For, Khan it was a no-brainer.

So a merger at the top of industry is easily anticompetitive. And so is a merger at the bottom, apparently. A recent kill shows how much Khan changed things.*

This year, Khan's FTC killed a merger between Spirit and Jet blue. That combination would have created the fifth largest air carrier from the numbers six and seven air carriers. Enforcement officials did this by discriminating between discount and other carriers. She claims, successfully no less, that the low-fare market was a separate market and that merger would undermine or eliminate that market.

In other words, Khan showed that antitrust enforcement is a dial, not a light switch. Successive administrations will have a difficult time dialing it back.

*Khan has killed mergers for Nvidia, Sanofi, Illumina, and Lockheed Martin, among others. She has also taken on Microsoft and Kroger. She is a darling of both parties. J.D. Vance and Matt Gaetz are considered, "Khanservatives."

United States v JetBlue Airways Corp., 712 F Supp 3d 109 [D Mass 2024].