One of the criticisms of Federal Trade Commission Chair Lina Khan has been her theory-first, practical-realities second approach to antitrust law. Rather than be content with enforcement on a case-by-case basis, Khan has tried to impose on the agency she’s headed since 2021 a sweeping vision she developed while still a college student.
It “resembles the work of an academic or a think tank fellow who dreams of banning unpopular conduct and remaking the economy,” former FTC commissioner Christine Wilson said in a dissent to a 2022 policy statement the FTC put out under Khan.
Wilson resigned about a year later, slamming Khan on her way out the door for running roughshod over the bipartisan way the FTC has tried to do its work over the years.
“My fundamental concern with her leadership of the commission pertains to her … defiance of legal precedent and her abuse of power to achieve desired outcomes,” Wilson said in a Wall Street Journal piece when she announced her resignation last year.
Since graduating law school in 2017, Khan has not worked in the private sector, her biographical information shows. She served as counsel to the House antitrust subcommittee for a year. She then taught law at Columbia University for a year before being tapped to head the FTC.
Whoever is chosen to chair the agency in the new Trump administration, expect that person to bring private sector experience to the job, reporting on Khan’s replacement suggests.
In the running are Mark Meador, a partner at Kressin Meador Powers, and Alex Okuliar, a veteran antitrust attorney at Morrison & Foerster, a Bloomberg report says.
At Kressin, Meador has been an antitrust adviser to startups and Fortune 500 companies in almost a dozen industries, his biographical information shows. Among his clients have been companies in technology and healthcare, two of the industries in the competition crosshairs under the Biden administration.
Okuliar has advised Microsoft, Cisco and energy giant Enterprise Products, among others. In addition to Morrison & Foerster, his private practice has included work at Orrick, O'Melveny & Myers and Vinson & Elkins.
Okuliar, according to his biographical information, has “represented clients in some of the most significant antitrust cases of the last twenty years, including government enforcement, class actions and private party disputes.”
The two bring government experience as well. Meador has been an FTC and DOJ attorney and was chief antitrust counsel to the Senate Judiciary Committee; Okuliar is a former DOJ deputy assistant attorney general and also served as an FTC adviser.
Two other names floated to lead the agency are Melissa Holyoak and Andrew Ferguson, the two FTC commissioners appointed earlier this year to fill the seats vacated when Wilson and the other Republican-appointed commissioner, Noah Phillips, resigned.
Holyoak spent most of her career as a practicing attorney in the nonprofit sector, first at the Center for Class Action Fairness and then as general counsel of the Hamilton Lincoln Law Institute, before being named Utah solicitor general.
Ferguson is also a former solicitor general, for Virginia, and served as counsel to the Senate Judiciary Committee. He brings private-practice experience, too, at several law firms, according to his FTC bio, although the firms aren’t disclosed.
The one academic under consideration is Todd Zywicki, a professor at the George Mason University Antonin Scalia School of Law and a former head of the FTC’s policy division, his George Mason bio says. Earlier in his career he worked in private practice at Alston & Bird.
Gail Slater, an adviser to Vice President-elect JD Vance and a policy aide in the previous Trump administration, is leading the effort to find the next FTC chief, the Bloomberg report says. She spent a decade at the FTC as an adviser, including to a Democratic commissioner during the Obama administration. Before joining Vance’s staff, she worked in the corporate sector, first at Fox News and then at Roku.
She’s a potential pick for an antitrust role in the administration, although it’s not clear it would be FTC chair.
“Slater, 52, is also being considered for a top antitrust job,” Bloomberg reported.
Each of the candidates hasn’t immediately responded to a request for comment.
Semafor also reports that Makan Delrahim, an antitrust official in Trump’s first term, is also under consideration. Legal Dive has not yet reached out to him. His record is mixed, the publication says. He supported blocking ATT’s acquisition of Time Warner and going after Google for anticompetitive practices, but was okay with T-Mobile joining with Sprint. And he said tech companies should self-regulate to some extent, the publication says.
Regardless of who gets tapped for the role, the chances are good they’ll bring more than an academic perspective to the job, and that could impact the high-profile actions the government has taken in the last several years.
“Several blockbuster cases are hanging in the balance,” says the Bloomberg report, listing the lawsuits against Google, Apple, Amazon and Visa, among others.
