Sept. 5, 2022 11:14 am ET
FTC Chair Lina Khan speaks during a House Appropriations Subcommittee hearing in Washington, May 18.
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Al Drago/Bloomberg News
Bravo for your editorial “Lina Khan’s Merger Metaverse” (Aug. 30). Readers deserve to know that the Federal Trade Commission is attempting to resurrect “actual potential competition” zombies that were buried by the courts long ago and should remain in their crypts.
I litigated the last potential-competition cases more than 40 years ago against a Justice Department bent on stopping bank mergers. Those cases represented policy-driven hopes that a massive government lawsuit unsupported by the law or evidence would scare off private companies uninterested in protracted litigation. Luckily, several banks were willing to endure the pain to establish the law.
During the trials, I saw judges roll their eyes when the government sought to prove that if the target company, which was not competing in the market, was acquired by a company that was competing in the market, the loss of the target company’s theoretical influence on competition in the market would harm consumers. Really? The government could hardly describe the theory in its pleadings and appearances in fewer than 100 words. That’s all you need to know about the actual-potential-competition theory.
You should also note the irony that these new cases represent. Big Tech has gobbled up the universe over the past 25 years, and now its sights are set on the metaverse, and the best that the government can do is roll out a discredited theory of law? It’s probably time to update the antitrust laws to accommodate virtual reality, but good luck getting Congress to do that.
Thomas P. Vartanian
McLean, Va.
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