President Donald Trump’s Federal Trade Commission nominee, Mark Meador, is moving swiftly through the Senate confirmation process. That doesn’t mean the consumer protection agency, with a soon-to-be Republican majority, will diverge significantly its policy agenda from former President Joe Biden’s four-year White House tenure.
The FTC, often referred to as the nation’s “top consumer protection cop,” consists of a Bureau of Consumer Protection and a Bureau of Competition, focused on antitrust regulation. The work of both of these bureaus is overseen by five commissioners, each nominated by the president and confirmed by the Senate. Each has seven-year, staggered, terms, and with the chairman elevated by the president.
With the recent departure of former Biden-appointed Chairwoman Lina Khan, the FTC has been operating with a partisan deadlock. Meador’s confirmation would make it whole and give the Trump administration its party majority at the agency.
Historically, the agency has been largely bipartisan, but Biden’s FTC was far more aggressive and extreme in both its policies and process. This lurch to the political left dovetailed with an increasingly populist Republican Party on issues such as reining in the power of so-called “Big Tech.” The FTC currently has multiple cases or investigations pending against leading U.S. tech companies, including Meta, Microsoft, and Amazon.
It’s fair to expect continued support for cracking down on tech companies and other large businesses from hold-over Democratic Commissioners Rebecca Slaughter and Alvaro Bedoya. However, the other commissioners’ policy positions are more difficult to predict.
Assuming Meador is confirmed, as is expected, all the Republican commissioners have been vocal about their concerns about the behavior of major tech firms.
Meador, while a staffer for Sen. Mike Lee (R-UT), told an antitrust conference in 2023 that the antitrust world was in a “paradigm shift among Republicans and conservatives concerning the proper role and use of government power” and that “concentrated economic power is just as dangerous as concentrated political power.” He added that “at the root of this approach is a rejection of libertarianism,” signaling opposition to a laissez-faire approach concerning regulation once embraced by most of the Republican Party, but now in question with the rise of a more interventionist, populist approach on the political right.
On social media platform X, Republican Commissioner Melissa Holyoak wrote, in praise of the FTC’s call for public comments on content moderation issues, that “Big tech censorship is one of the most consequential issues facing our nation.”
Trump-appointed FTC Chairman Andrew Ferguson announced the agency’s call for public input by posting that “Big Tech censorship is not just un-American; it is potentially illegal.” He also asked for “public submissions from anyone who has been a victim of tech censorship (banning, demonization, shadow banning, etc.).”
The legal validity of the FTC’s labeling major platform content moderation decisions as “censorship” is legally specious. Just last year, the Supreme Court upheld the free speech rights of platforms not to carry any speech they do not wish to carry, writing that the First Amendment “does not go on leave when social media are involved,” highlighting that third-party posters cannot be “censored” on the private property of platforms. But the new FTC’s framing of the issue signals a continued hard line on America’s tech companies.
In another show of policy continuity, Ferguson recently announced that the agency would be keeping the merger guidelines as updated during the Biden administration. Merger guidelines are nonbinding but seek to impart to the business community what might raise red flags at the agency and, ideally, reflect the current state of antitrust law.
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Conservative critics decried the Biden-era version as not reflecting current antitrust practice in the courts and ignoring 40 years of economic learning in the antitrust field. Former FTC general counsel Alden Abbott wrote at the time of its final release that “the guidelines ignore the immense changes in U.S. antitrust case law over the last four decades, reflecting an economics-based appreciation for the role of business arrangements in advancing efficiency and consumer welfare” while generally comparing the updated version to a lipsticked pig and calling for its withdrawal in a post on a law and economics blog.
Advocates of traditional conservative “light-touch” antitrust regulation had hoped for a return to the previous guidelines, signaling an FTC more open to deferring to market forces and less inclined to government intervention. The guidelines do not bind the commissioners to any particular decisions, but they do leave the door open to continued heightened regulatory scrutiny of mergers and acquisitions.
