Brian Albrecht writes about how the DOJ and FTC are using the antitrust rulemaking process to get outcomes progressives want:
Since 1968, the DOJ and later the FTC have tried to make more explicit the types of mergers that they would challenge by issuing guidelines. As our knowledge of the economics of mergers changes, the FTC and DOJ periodically update their guidelines.
To get input on updating these guidelines, the agencies ask for comments from the public. Unfortunately, these agencies’ most recent request betrays their ultimate political agenda for the update. Khan and Kanter declared at the outset of this process that they have “launched a joint public inquiry aimed at strengthening enforcement against illegal mergers.” Right from the start, they show their preference for simply stronger — not necessarily better — enforcement, leading to (in the words of Stanford’s Doug Melamed) a “very tendentious” effort to produce new merger guidelines now.
Throughout the public-inquiry process, the agencies have asked leading questions of the public such as, “What changes in standards or approaches would appropriately strengthen enforcement against mergers?” Again, instead of following the law and economics, which may or may not require stronger enforcement, the agencies assume the answer they want. An agency that biases the information it collects leaves itself vulnerable to groupthink.
Read the whole thing here.