Planet Money - FTC Chair Lina Khan on Antitrust in the age of Amazon

Episode Date: November 3, 2023

When Lina Khan was in law school back in 2017, she wrote a law review article called 'Amazon's Antitrust Paradox,' that went kinda viral in policy circles. In it, she argued that antitrust enforcement in the U.S. was behind the times. For decades, regulators had focused narrowly on consumer welfare, and they'd bring companies to court only when they thought consumers were being harmed by things like rising prices. But in the age of digital platforms like Amazon and Facebook, Khan argued in the article, the time had come for a more proactive approach to antitrust.Just four years later, President Biden appointed Lina Khan to be the Chair of the Federal Trade Commission, one of the main government agencies responsible for enforcing antitrust in America, putting her in the rare position of putting some of her ideas into practice.Now, two years into the job, Khan has taken some big swings at big tech companies like Meta and Microsoft. But the FTC has also faced a couple of big losses in the courts. On today's show, a conversation with FTC Chair Lina Khan on what it's like to try to turn audacious theory into bureaucratic practice, the FTC's new lawsuit against Amazon, and what it all means for business as usual. Help support Planet Money and get bonus episodes by subscribing to Planet Money+ in Apple Podcasts or at plus.npr.org/planetmoney.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

This is Planet Money from NPR. Last week, I had a chance to sit down with Lina Khan. Hey! Hello! Hey, I'm Lina. Hey, Alexi. Nice to meet you. And, okay, Alexi, I have to say, this was super exciting, because Lina Khan is the chair of the Federal Trade Commission,

which, among other things, regulates how big companies can get in the U.S. Okay, so just to start, I have to ask, Trade Commission, which, among other things, regulates how big companies can get in the U.S. Okay, so just to start, I have to ask, when you were a kid, was Monopoly your favorite board game? No, I think it was probably like Snakes and Ladders. Nevertheless, Lena is now helping set the rules for the real-life game of Monopoly playing out across the American economy. As FTC chair, she is one of the country's top antitrust cops, policing companies as they vie for bigger and bigger slices of any given market.

Now, for a long time, antitrust was kind of this sleepy policy backwater. The prevailing theory of how to police monopoly power had basically been to let the market sort it out on its own, unless you could prove that consumers were clearly getting harmed. But a few years ago in 2017, Lina Khan rocketed into the national conversation with a simple but radical argument, which is that we had been doing everything wrong and that by now it was exacting this hidden toll on our everyday lives. Monopoly power and consolidation can make the difference between whether you have to drive five miles to go to the hospital or whether you're driving 50 miles to go to the hospital. It can be the difference between whether you're paying $4 for eggs or $10 for eggs.

It can make the difference between whether you can quit your job and have opportunities with a rival firm or whether you're in fact just stuck working for a company, even if they're docking your wages or worsening your working conditions. And so there are just very real material consequences of how we do antitrust. In other words, the stakes are a lot bigger than a board game. Hello and welcome to Planet Money. I'm Jeff Guo. And I'm Alexey Horowitz-Ghazi. In just a few years, Lena Kahn went from a controversial new voice calling for antitrust reform

to the person leading one of the main government agencies that could actually do something about it. And as FTC chair, she's taken some big swings against some of the economy's most prominent tech giants. She's suffered a couple big setbacks. And now the FTC has filed one of the biggest antitrust cases in decades against Amazon, which we should say supports and pays to distribute some NPR content. Today on the show, a conversation with Lina Khan, what it's like to try to turn audacious theory into bureaucratic practice, and what it all means for business as usual. Okay, so to kind of go back to your origins, tell me the story of how you fell in love with antitrust, at least as a kind

of professional calling. So one of my first jobs after college was as a researcher and business journalist for a think tank. And one of my first assignments was a deep dive into the chicken industry, the poultry market. And pretty quickly, it became clear that the poultry market is structured like an hourglass. So you have millions of consumers on one side, thousands of farmers on the other side, and they're connected just by a handful of companies. And what that means practically is that if you're a chicken farmer today, to do business, oftentimes you're just dependent on a single company to get to market. And from interviewing these farmers, it became clear that that asymmetry of power was resulting

in a lot of abuse. And farmers told me that they wanted to go speak out to the government, but chicken companies threatened them and said, if you speak up, we'll retaliate against you. And it was such an instructive example of how concentrated private power, how monopoly power could also infringe on people's most fundamental liberties. of Planet Money's series on antitrust in America will know the backstory to this history. But here's a quick recap. The late 19th century saw the rise of these massive new companies, these trusts, as they were called, like John D. Rockefeller's Standard Oil, which were using their sheer size to push competitors out of the market. So the antitrust laws at the federal level were passed back in 1890 against the backdrop of this phenomenal industrial revolution

that had delivered a lot of technological gains and progress, but had also concentrated power over these new industries and a very small number of hands. And so you had farmers, for example, who were often dependent on a single railroad that was going through their town. And they saw how that concentrated power could result in discrimination. It could result in arbitrary price hikes. And there was a sense that who was winning and who was losing in our economy was not based on who on the merits was offering the best products or services or prices, but really the whims of these gatekeepers. services or prices, but really the whims of these gatekeepers. And so there was a big movement to really push Congress to pass a set of laws to really rein in some of this unchecked power. So in 1890, you had the Sherman Act that was passed. In 1914, you had the Clayton Act, the FTC Act, which created the Federal Trade Commission.

Is that your favorite one? Yeah, I think it has to be. the Federal Trade Commission. Is that your favorite one? Yeah, I think it has to be. Over the next 60 years, the government took a pretty aggressive approach to policing anti-competitive behavior, regularly stopping companies from merging or even breaking up companies they argued had gotten too big. Until the 1970s, when there was a backlash to all this aggressive enforcement and the pendulum swung the other way. A new way of thinking about antitrust started to take hold, which essentially said, the fact that some shoe manufacturer or pie company is gobbling up market share from its competitors isn't necessarily a bad thing. The only thing we should really be worrying about

is whether actual consumers are harmed by things like rising prices or fewer kinds of products. What mattered should be consumer welfare. And that consumer welfare standard, as it was christened, set the stage for the next 40 years. Antitrust regulators became a lot more hands-off. The market, the thinking went, would solve a lot of these problems all on its own. There was a view that if you ever had, you know, monopolization in the economy and that monopoly started to hike prices or hurt its customers, that that monopoly power would be disciplined by a new set of companies that would rush in and try to take business away from the monopoly. This new paradigm in antitrust thinking

was spelled out most famously by a legal scholar named Robert Bork in his book, The Antitrust Paradox. Antitrust, he argued, the law that's supposed to help competition, was actually harming it by intervening on behalf of particular companies. That was the paradox. And Bork's view? That has become mainstream. That was the paradigm Lena Kahn decided to attack when she was a law student at Yale back in 2017, when she wrote a provocative paper for the Yale Law Journal playing off the title of Bork's famous book, The Antitrust Paradox. The paper was called Amazon's Antitrust Paradox. And what was the vision you laid out in that paper for what needed to change when it came to antitrust policy in the U.S.? So that paper is that I wrote, you know, as a student in a very different role than the

one I'm in right now, basically argued that the shift in antitrust that we had seen in the 70s and 80s now created serious blind spots in how we enforce the laws against monopolies. And those blind spots were especially acute in digital markets. and those blind spots were especially acute in digital markets. In her paper, Lena pointed to the wave of social media platforms and online marketplaces, places like Amazon, that had come to define this new internet economy. These new business models, she argued, they'd started to pose whole new kinds of antitrust threats that couldn't be captured by a narrow definition of consumer welfare, which is based

on things like price or product variety. One of the arguments was that a focus on short-term price effects, for example, could disable us from recognizing monopoly power in its earlier stages, especially in digital markets. There can be a real premium on getting big as quickly as you can. And when you're looking to do that, you may not be focused on short-term profits in the same way. You're really looking to expand, to build a huge user base, to build market share. And so some of the tactics that firms can deploy in those early stages can be anti-competitive, but they can really fall off the radar from

antitrust enforcers if they're just looking at, for example, price or output as key metrics. In her 2017 law review article, Lena argued it was time to drastically shift our approach to antitrust enforcement, to return in many ways to the spirit of the original antitrust laws that had led to the breakup of Gilded Age behemoths like Standard Oil. behemoths like Standard Oil. The paper suggested that similar action needed to be taken now by taking steps that included potentially breaking up Amazon. Lena argued that focusing too narrowly on consumer harm had allowed a handful of tech companies and digital platforms to get so big and powerful it had become nearly impossible for new businesses to compete. Antitrust enforcement, she said, needed to go back to a more proactive approach. The paper went kind of viral. People went bananas. And it helped

catapult Lena and a wider group of scholars calling for antitrust reform into the public sphere. For a lot of scholars, it was a rallying cry, though others saw this reform movement as backsliding and dismissed it as a kind of vintage way of looking at monopolies. They called it hipster antitrust. Do you identify as a hipster in the rest of your life? Probably not. Hipster or not, Lena became kind of famous in policy circles. And back in 2019, when our colleagues Jacob Goldstein and Kenny Malone interviewed her for Planet Money, they asked her a hypothetical.

If you had all the antitrust power in the world, what would you do? Do you want a title? We're going to make you the ruler of antitrust in America. That seems kind of antithetical to the spirit of antitrust. Well played. Yeah, that's fair. Well, just two years after that conversation in 2021, it kind of happened. President Joe Biden appointed Lena to be the chair of the Federal Trade Commission. That is about as close as you can get to being the ruler of antitrust in America. All of a sudden, Lena went from an outspoken

academic to someone on the inside, someone at the helm of antitrust enforcement in America. And as chair con, she's had a rare chance to put some of her ideas into actual practice. So once you kind of became the chair, like, did it seem like it was going to be easy? No. Elaborate. So look, I mean, you know, the FTC is this remarkable agency, but we're small. We're around 1,200 people. We're smaller today than we were at various points in the 1970s, even as the economy has continued to expand significantly. We're also outgunned

oftentimes. You know, at base, when the FTC is doing its job, when it's taking on, you know, monopolies that we believe have illegally used their monopoly power, that's pitting the agency against some of the most powerful and well-resourced companies in our entire economy. You're kind of like taking on the oil barons of our era in a way. Do you think about it that way? I think it's fair to think that, you know, there are certain markers of the Gilded Age, once again, that we're living through. And so, you know, the robber barons and the industrial trusts that the FTC was charged with taking on a century ago

were once again facing similar battles. After the break, how those battles have started to shape up since Lena Kahn leapt from the ivory tower into the enforcer's chair. In June of 2021, Lenaina Khan was appointed by President Biden to chair of the Federal Trade Commission. Now, the FTC isn't the only agency tasked with enforcing antitrust laws

in the U.S. There's also the DOJ and state attorneys general. But Lina Khan has become one of the top monopoly cops in the country. And like any other cop, her job is not to make the law, but to enforce it. Her job is to investigate companies, review proposed mergers, figure out if any of them are breaking antitrust laws. And if they are, she can file lawsuits against them. But the final decision on those cases is up to the courts. And if you want to get a sense of Lina Khan's antitrust philosophy, how she's trying to enforce antitrust law more aggressively and even expand the law beyond the consumer welfare standard, a good place to start would be the merger guidelines. The merger guidelines are kind of like the government's antitrust manual. They lay out how the FTC and the Department of Justice will investigate company mergers, like what red flags they're looking for, what kinds of mergers they'll try to block for being anti-competitive.

After Lena became chair, the FTC decided to revise and update the merger guidelines. Lena says they've been revised periodically over the last few decades, but significant parts hadn't been revised since 2010. And we believe that a lot had changed since 2010. I think one of the worries has been that the agencies have used at various points models and theories that haven't always mapped onto the reality of what happens once chicken farmers by talking to them directly. She teamed up with the DOJ to collect information directly from the public about how mergers have worked in the time of online platforms like Facebook or Amazon or Uber. So we got a lot of input. We did a bunch of listening sessions with farmers, with nurses, with health care workers more generally, with journalists, with nurses, with healthcare workers more generally, with journalists, with musicians, really with people across the economy to understand on the ground, what has it looked like when you've seen mergers in your sector and what have the real world

effects been? You know, we got thousands and thousands of comments, a lot of them from workers who had noted, for example, the ways in which mergers that have gone through have ended up resulting in their pay being cut, their work schedules becoming less predictable, their working conditions becoming worse. We heard from, you know, small businesses, independent businesses about how mergers have resulted in them being muscled out of markets, not because they can't compete, not because customers don't want their products, but because firms that have merged have been able to use their muscle to bully firms and push them out. And so there are revisions that we put forward this summer, for example, address platform markets.

For the first time ever, they address labor markets. They make clear that the agencies are going to look at how mergers could potentially limit competition, not just in ways that will harm consumers, but also in ways that could harm workers and labor. The FTC and DOJ put out a draft of the new merger guidelines this summer, and they give you a sense of how Lena is exploring broader types of harm than many of her predecessors. The FTC is now looking not just at how consumers might be harmed by a merger, by, you know, higher prices or less product variety, but also at how a merger might affect, you know, workers. And in speeches and articles, she's also talked about harm to digital security, harm to privacy. But the merger guidelines are only one tool she has to change the way companies behave. For this agenda to have any real teeth, it comes down to filing actual lawsuits against companies that Lina Khan and the FTC allege have broken antitrust law. And with those lawsuits, she's taken some pretty big swings. We asked Lina to walk us through four of those lawsuits.

The first one was a case the FTC refiled against Facebook, arguing that some high-profile acquisitions from the last decade or so shouldn't have been allowed. And one of the claims there was that Facebook had become dominant on the desktop market. And then they quickly saw that the market at a later stage was shifting to mobile. And they saw that firms like Instagram and WhatsApp instead were threatening to become more dominant in the mobile space and make Facebook irrelevant. And so we allege Facebook made those acquisitions of Instagram and WhatsApp because it viewed them as a threat in the mobile market. The FTC is arguing that the courts should unwind the deal, force Facebook to divest itself of WhatsApp and Instagram. We reached out to Facebook's parent company, Meta, for comment, and they referred us to a previous statement in which they say, quote, The court has not yet made a decision on this case. The FTC's lawsuit is still pending. But the case shows how Lina Khan and the FTC are

now thinking about why it's so important to stop anti-competitive acquisitions earlier in the process. The idea is that if regulators aren't paying close enough attention to emerging markets, especially in tech, huge dominant firms can just buy up any would-be rivals and scuttle that market before it ever really gets going. These technological inflection points can be really important moments of new competition. And so the incumbents oftentimes feel threatened during these moments. And so we want to be making sure that we're not allowing dominant monopolies today to also solidify their monopoly power in tomorrow's markets through these acquisitions. And this is the underlying philosophy that's also motivating the second lawsuit we're going

to talk about. Another case the FTC brought against Facebook. This one after it had been rebranded to Meta. Meta was trying to acquire a virtual reality company called Within Unlimited. And even though that VR market was still in its tiniest infancy, the FTC argued that Meta's behavior was still anti-competitive because it preempted competition that might otherwise bloom in the virtual reality space. And so Lina and the FTC used an old legal theory that hadn't been used much for decades, since basically before the whole backlash against aggressive antitrust enforcement. So the FTC's case seeking to block Meta's acquisition of Within was really about what's

known as potential competition. And so the claims in the case included noting that Meta itself had actually been planning to enter this market itself and it ended up doing this acquisition in ways that short-circuited that organic competition that we would have seen if Meta had organically looked to enter. And so that was one of the counts. We also noted that just the mere fact that Meta was potentially going to enter also ended up disciplining the existing players in the VR market. Now, in the case of Meta within Unlimited, the courts decided not to block that acquisition. Tell me a little bit about what happened in the decision and what lessons you're taking from that. So, look, we only bring cases where we believe there's a law violation,

and our team did a terrific job putting together that case in a very compressed period of time. It's true, you know, we did not win and we were disappointed by that. But the court's decision also had a whole set of really important determinations about how this potential competition doctrine applies in digital markets. So in the case, you know, one of Facebook's argument was that this doctrine is so old, it doesn't even apply to these markets. And the court firmly rejected that. He said, no, this potential competition doctrine is alive and well, even in markets like digital markets, even relating to virtual reality. And he noted a whole set of important ways that that doctrine applies in this market and gave us a whole set of wins that we can build on in any future cases.

But of course, anytime we have setbacks in the court, we look closely at those opinions and try to figure out what we do better. According to the court, the argument the FTC made in this case was, quote, impermissibly speculative. But the court did accept potential competition as a valid argument in theory, and Lena sees that as a kind of win. Another one of her big swings? The FTC's attempt to block what are called vertical mergers. That's when companies buy up other companies in their industry that they don't directly compete with, like a car company buying a smaller tire manufacturer, for example. Under recent mainstream interpretations of antitrust law, vertical mergers are generally seen as OK.

They're not seen as anti-competitive. They're even seen as a way to improve efficiency, which, you know, is good for consumers. But Lena Kahn argues those mergers can come at a big cost. They can give a company too much power in an industry. And you can see this argument playing out in case number three, the FTC's attempt to block Microsoft from acquiring a video game company called Activision Blizzard. Microsoft and Activision Blizzard, they aren't direct competitors. Not exactly. Microsoft makes the popular gaming console, the Xbox, while Activision Blizzard makes games.

But the FTC's case argued that this merger could allow Microsoft to starve other video game platforms, like the PlayStation, from getting access to big Activision games, like, you know, Call of Duty. We've generally had a market where you could have platform-agnostic content developers that are able to reach video gamers through a whole set of platforms. And there's a risk that if this acquisition goes through, we'll instead see a shift to a series of walled gardens that will make it much more difficult for organic content to be getting to video game users. But the courts decided again in this case against the FTC. They let Microsoft's vertical merger go through, saying the FTC hadn't proven the deal would hurt consumers, though the FTC is still

pursuing a case post-merger. This leads us to the fourth and final case that Lina walked us through, the one that many people across the world of antitrust had been waiting for for years. This fall, the FTC brought a case against the subject of her famous law school paper, against Amazon. But the crux of the FTC's case against Amazon rests on more conventional antitrust arguments about consumer welfare, that Amazon had had a policy that harmed its third-party sellers, which Amazon to access consumers. In today's digital economy, if you want to be visible in e-commerce, you generally have to sell on Amazon. And the lawsuit lays out a set of tactics that Amazon has deployed against those merchants that we believe are

anti-competitive. It has basically dictated policies that say, if you sell on Amazon, you can't list your products on any other website for a price that's lower than what you're listing on Amazon. And one reason that ends up being problematic is because Amazon has also been hiking the fees that it charges these merchants. So these merchants face higher costs on Amazon but are not able to raise their price on Amazon to reflect those higher costs. And instead, they have to either raise their price on other websites, or they just stop selling anywhere else entirely because Amazon is so punitive when it does see that people have, you know, listed their products elsewhere for a lower price. And so at the end of the day, Amazon's tactics are actually resulting in higher prices, not just on Amazon, but across the rest of the economy. And if you step back, you know,

in a healthy competitive market, if you have a company that's raising prices for its customers and making the service worse, you should expect competition, right? It creates an opening for new businesses to come in and take business away from that incumbent. But we really haven't seen that successfully in this market. And we allege that's in part because Amazon has engaged in illegal tactics to block rivals. And so it's able to harm its customers without really paying the price that it should in a competitive market. One thing that a lot of people have pointed out about this case is that it's not exactly the same prescription you called for in your famous law school paper. You know, that kind of frames the harm on terms that are familiar to the consumer welfare standard way of thinking about monopoly power.

Help us understand how your kind of thinking and strategy has changed between the time that you wrote that paper and now what you're bringing as chair of the FTC. that you wrote that paper and now what you're bringing as chair of the FTC? I mean, I'll say as a general matter, the exercise of doing independent research and writing an academic paper is very different from being a law enforcer, where you have subpoena power, you can investigate what's really going on. And ultimately, you're charged with, if you bring a complaint, making sure you're alleging law violations and setting up that case to succeed in court. That said, I'll also note that when you have the monopoly playbook, there are different life cycles of where you can be at any given moment. And the tactics that a firm will take to achieve monopoly power, to become

a monopoly, will look different from the tactics that it deploys once it's become a monopoly and is really focused on protecting that monopoly and exploiting that monopoly power. And so the case that we brought really reflects Amazon in the year 2023 and what we believe is now extraction mode. We're having cemented its monopoly power, having locked out rivals through this illegal tactics. It's able to extract from customers both on the consumer side as well on the seller side. And so that's what the case is about. If enforcers had investigated and decided to bring a case a decade ago, there's no doubt that the set of tactics that would have been focused there would have looked different. We reached out to Amazon for comment,

and they referred us to a statement released when the FTC filed its case. They called it a misguided lawsuit and said that if the case were successful, it would, quote, force Amazon to engage in practices that actually harm consumers and the many businesses that sell in our store. Lena Kahn says this case is just getting started. It might take years to battle it out in the courts. But she does say that asking a judge to potentially break up Amazon is still on the table. As for her larger strategy of taking on ambitious cases and trying out novel legal doctrines?

Seems like a number of critics argue that these last few cases that were lost, that they're a sign that you may be pushing antitrust enforcement beyond the boundaries of the actual law? Like, how do you respond to that critique? So we're absolutely dead focused on making sure we are fully being faithful to the laws that Congress passed and the legal precedent on the books. And, you know, we've had a whole set of successes. You know, we've had a whole set of successes. We've probably been successful in around 20 merger cases where after we filed a complaint, the companies walked away or after we did an investigation, the companies folded. That includes in the context of two really major vertical mergers. This was Lockheed's attempted acquisition of Aerojet, NVIDIA's attempted acquisition of Arm.

at. NVIDIA's attempted acquisition of ARM. Blockbuster deals known as vertical deals, which have historically been seen as more difficult to challenge. Companies walked away after the FTC filed its suit. So obviously, the setbacks that we've had, we've been disappointed by. We've kind of looked closely at what we can learn from them and do better. And ultimately, we carry the burden of explaining to the courts and persuading them about how these long-term antitrust principles apply in some of these newer markets. But as a law enforcer, one of the things that I think most about is deterrence. You really want to ensure that firms are not engaging in illegal behavior in the first instance. And one set of comments that have really been promising for us is hearing from prominent dealmakers, prominent bankers who will say a few years back when I was part of conversations about whether to do a merger, we never really talked about antitrust until the very, very, very end, if at all. And now that's totally different. We talk about antitrust on day one. And there are a whole bunch of deals that are not even happening because there's a recognition that they would be legally suspect from an antitrust point

of view. So as an enforcer, that deterrence is a huge marker of success, right? We want to be making sure we're conservating our resources, that firms are not engaging in illegal mergers in the first instance, and there are a whole set of indications that that's happening. Lina Khan, chair of the FTC, thank you so much for chatting with us. Thanks for having me. On the next Planet Money, the Luddites famously smashed machines to pieces. So when I heard that the author of a new Luddite book had never himself smashed even one single machine, I knew what to do.

All out the names of some of these machines as you do it in between. Gigmill. Gearing frame. Power loom. On the next Planet Money, we dare writers and researchers to do things they've never done before to learn about the economic world around us. Today's episode was produced by Dave Blanchard with help from Sam Yellow Horse Kessler and edited by Jess Jang. It was fact-checked by Sierra Juarez and engineered by James Willits. Alex Goldmark is

our executive producer. I'm Jeff Guo. I'm Alexi Horowitz-Ghazi. This is NPR. Thanks for listening. I'm Alexi Horowitz-Ghazi. This is NPR. Thanks for listening. And a special thanks to our funder, the Alfred P. Sloan Foundation, for helping to support this podcast.