The term RINO or “Republican In Name Only” has been deployed to great effect ever since President Trump’s ride down the golden escalator. But when it comes to Trump’s new Federal Trade Commission chair, perhaps “MAGA In Name Only” is more appropriate.
The new chairman of the FTC has brought the social-political wars right into the heart of the agency. What the chairman has not done, however, is change the targets of the FTC’s antitrust cases, or its Javerian pursuit of Big Tech. The former might be cover for the latter.
In an interview on Fox Business Network last month, the new FTC Chairman Andrew Ferguson supported President Trump’s request that FTC decisions be shared with the White House in advance for the president’s possible input. That is a concession to presidential involvement in a supposedly independent agency that no previous FTC chair has ever allowed.
In a published statement, Ferguson also announced that he viewed himself as an “officer of the United States,” and thus bound by President Trump’s order to dismantle diversity, equity and inclusion at the supposedly independent agency.
Finding the “cozy” relationship between the FTC and the American Bar Association to have favored left-wing policies, he also ordered all political appointees at the FTC to disassociate itself from the ABA — including resigning membership in the organization, let alone holding leadership positions or participating in ABA activities. An appearance by the FTC chair is traditionally a highlight of the annual spring meeting of the ABA Antitrust Section. Evidently, this will happen no more.
These might be the easy favors to grant, however. Other statements from the interview illustrate that, on the substance, the new Trump FTC will look a lot like the old Biden FTC.
Ferguson stated that the antitrust guidelines issued by the Biden FTC will not be subject to wholesale review. He recites how earlier Republican-led FTCs chose to keep merger guidelines formulated by Democratic-led FTCs that preceded them, and he intended to do the same. Curiously, he ignored all of the instances where Democratic-led FTCs took an axe to what Republicans had done. So, quite unlike the wholesale review going on at other independent agencies, like the FCC, the FTC will be supine on antitrust substance.
The “sizzle” is Trumpian revisionist, but the “steak” isn’t. Here are some examples.
Ferguson was originally appointed to the FTC by President Biden and voted to approve the Biden era policies, most importantly the 2023 guidelines that signaled much greater hostility to mergers in the U.S., even when the mergers enhanced efficiency of companies’ operations. Ferguson was also part of Biden’s antitrust enforcers’ overt hostility to Big Tech. In the interview, he said:
“I think all of Big Tech is going to remain under the microscope. I can at least speak for the Federal Trade Commission. We’ve got cases involving Amazon and Meta, I care deeply about these cases. They’re very important. I intend to continue prosecuting them to continue holding Big Tech’s feet to the fire.”
Biden’s FTC reached back 10 and 12 years to try to undo Facebook’s acquisition of Instagram and What’s App. That is the case against Meta to which Ferguson specifically referred. Not just Big Tech, but many who speak for American commerce more broadly, objected to the FTC opposing a merger more than a decade after the FTC had allowed it to go ahead.
Ferguson defended his decision not to redo the Biden FTC merger guidelines because doing so would sow uncertainty in American business circles. Far greater uncertainty, however, results from the lesson that there is no time limit to the FTC’s ability to undo a merger that it had previously approved. Try working out long-run plans to integrate an acquisition with the sword of a break-up perpetually hanging over your head.
Consider another example of Biden’s antitrust aggressiveness. The Bush II administration promulgated guidelines that govern companies in a vertical supply chain relationship like a cable company purchasing a library of television shows. The Bush II FTC held these arrangements were generally benign.
The Biden FTC, however, repealed that guidance and the Justice Department sued to stop AT&T from acquiring Time Warner. The challenge was thrown out of federal court. Now, it seems, Ferguson will let stand the Biden administration’s 2021 rescission of the vertical guidance and look with suspicion on vertical relationships that deliver a product more efficiently.
The Amazon case Ferguson proudly referenced does precisely that.
Ferguson is trying to appear loyal to President Trump in everything but substance. It seems he might be trying to buy White House patience for his contrary direction on antitrust policy. “MINO” might not have the same ring to it as “RINO,” but in the case of the FTC, Ferguson leans Biden more than MAGA might think.
Tom Campbell was the director of the Bureau of Competition, the antitrust arm of the Federal Trade Commission, during the Reagan administration. He served five terms as a U.S. congressman from Silicon Valley and is an antitrust advisor to NetChoice, a trade association focused on promoting free expression and free enterprise, that includes Amazon and Meta.
