FTC’s Wilson Calls Dems’ Attitude Toward Staff ‘Reprehensible’

It’s “reprehensible” that FTC Chair Lina Khan and her allies have attacked agency staff as “lazy and corrupt,” and it shows in the agency’s “terrible” employee survey results, Commissioner Christine Wilson said Friday at a Free State Foundation conference.

Wilson cited unfavorable results from the Office of Personnel Management’s 2021 survey, which she recently highlighted. According to the survey, 53% of FTC employees "strongly agree" or "agree" that “senior leaders maintain high standards of honesty & integrity,” down from 87% in 2020.

Wilson likened neo-Brandeisian antitrust views to those of Jean-Jacques Rousseau and W.F. Hegel. The latter viewed destruction as good, believing that society moves through phases and every subsequent phase is superior to the preceding, said Wilson: Destruction, war and tumult are good because they lead to progress. Maybe the reason former FTC Commissioner Rohit Chopra was so “viciously critical of staff,” and “Khan has been so disdainful” of staff, is “because they don’t care” if the agency “gets trashed because they believe progress is right around the corner,” said Wilson, speaking virtually. “It pains my heart. ... I just find it reprehensible when the neo-Brandeisians and their allies attack, in particular our staff, as lazy and corrupt. Because there is not a harder working group of people in the federal government.” Khan’s office didn’t comment.

Commissioner Noah Phillips didn’t address the survey results while speaking on the panel. Wilson is “right to note it’s a really bad result,” Phillips told us after the event. “And it’s sad, and I hope the situation improves.”

Asked if members of Congress should investigate activity at the FTC, Wilson said, “I am attempting to understand the data points that I am seeing. When Chair Khan says that all decisions are political, it seems appropriate” to understand her writings and politics. “I’m trying to approach this in a scholarly way. ... I’m pulling [books] of philosophy and history off the shelves and attempting to orient myself to the trends I’m seeing around me.”

The FTC is right to revisit the merger guidelines with DOJ to ensure policies are keeping pace with modern markets through sound economic analysis, Wilson said during the panel. However, the FTC’s request for information shows “problematic” assumptions are “baked into the questions,” she added. About 1,900 comments have been submitted (see 2204220056), she said. The purpose of antitrust law is to protect competition, and the RFI includes assumptions about the need to protect competitive rivals, she said.

The guidelines can reflect that agencies are concerned about small, nascent rivals, said Phillips: “We understand that sometimes the competition is going to come not from another company that looks exactly like the incumbent.”

Former acting FTC Chairman Maureen Ohlhausen, now at Baker Botts, noted a recent position from the American Bar Association’s antitrust section raising concerns about legislation targeting the tech industry. ABA warns against shifting away from protecting competition in favor of protecting competitors. There are pieces of legislation that target conduct only when companies of a certain size engage in that conduct, said Phillips. Those bills have lost focus on competition and instead identify a certain set of companies for specific restrictions on mergers and self-preferencing, he said, and that doesn’t “put the consumer first.”