Lina Khan Left a Robinson-Patman Mess for the FTC: How Will the Commissioners Clean It Up?

Nobody likes to lose an election. But in the spirit of facilitating the peaceful transition of power, rather than try to jam major items out the door in the three months between the election and the inauguration, the losing team traditionally adopts a “pens down” approach in order to allow the incoming administration a chance to take office with a relatively clean slate.

Apparently, President Biden’s controversial Federal Trade Commission Chair Lina Khan did not get that memo.

In the months leading up to the 2024 election, instead of attending to the Commission’s business, Ms. Khan was busy stumping on the campaign trail for progressive candidates. As a result of this administrative neglect, from November 2024 through the end of January 2025, she voted out a flood of specious complaints, limiting incoming Republican Chairman Andrew Ferguson’s ability to dedicate the Commission’s scarce resources to cases he believes have a higher likelihood of success.

Perhaps the most notable of these hurried cases were Robinson-Patman Act complaints against Southern Glazer Wine and Spirits (filed in December 2024) and PepsiCo (filed in January 2025). The Robinson-Patman Act basically prohibits a seller from charging competing buyers different prices for commodities of the same grade and quality—i.e., volume discounts. The FTC has not brought a Robinson-Patman Act in over twenty-five years, and for good reason: modern antitrust focuses on injury to competition, but the Act essentially focuses on injuries to specific competitors. While a Commissioner in the minority at the time, now-Chairman Ferguson wrote dissents in both cases. His scholarly thirty-page dissent in Southern Glazer merits particular attention.

Ferguson began by providing a lengthy exegesis of the text of the Robinson-Patman Act and the case law that has interpreted it. Ferguson readily conceded that the Robinson-Patman Act is inconsistent with the consumer welfare standard because the statute deliberately seeks to protect individual competitors, “plac[ing] it at odds with the broader purposes of the other antitrust laws, against which the Supreme Court has repeatedly advised.” Still, argued Ferguson, simply because the government doesn’t like a particular policy articulated in a duly enacted statute is insufficient justification to decline to enforce that statute. (As an example, Ferguson argued that the Biden administration was notorious for engaging in this kind of conduct, such as deliberately refusing to enforce the nation’s immigration laws.) Thus, in his view, having the executive branch simply refuse to enforce a statute it didn’t like would be unconstitutional, and “[n]othing requires Congress to develop an economically coherent body of antitrust law.” Besides, in his opinion, the evidence of the detrimental effects of Robinson-Patman enforcement on overall consumer welfare is “mixed.”

So what to do?

Ferguson noted that because the FTC has “limited resources,” the Commission must “be choosy about how we commit the taxpayers’ resources and ensure that we get the biggest bang for their buck.” Applying that principle to the enforcement of the Robinson-Patman Act, Ferguson proposed a compromise: the FTC should bring secondary-line Robinson-Patman cases “only when there is strong evidence that the favored purchasers possess market power.” In Ferguson’s view, focusing on buyer market power serves two important purposes: first, such cases would “direct[] our resources toward the conduct that most concerned Congress”; and second, such cases would “maximize[] the effect of the Commission’s enforcement resources.”

Ferguson argued that the FTC’s complaints against Southern Glazer and PepsiCo both failed his test. As Ferguson noted in his dissent in Southern Glazer, he has seen “little evidence that the favored retailers possess substantial market power in any particular product or geographic market. This case therefore may protect the disfavored retailers who allegedly paid higher input prices than their competitors, but it may do so by raising prices for millions of hardworking Americans.”

Ferguson was less reserved in his PepsiCo dissent, published a few weeks after the Southern Glazer dissent. He said that by bringing this case against PepsiCo right before the inauguration and a few weeks after his proposal for a bi-partisan compromise, Khan and her Democratic cohorts essentially spat in his face “by turning the Robinson-Patman Act into a political bludgeon. They have filed a complaint without evidence precisely so that they can say they are ‘reviving’ the Act, thereby thrilling the sectors of their party that have demanded that the Act be revived. But that is not law enforcement. It is base politics.” In so doing, argued Ferguson, Khan has “tied the hands of the incoming Trump Administration,” wasting precious resources by “spend[ing] the American people’s money on a political lark [rather] than protect[ing] competition in our markets.”

While an analysis of the merits of Ferguson’s compromise approach for Robinson-Patman enforcement is best left for another day, his two dissents reveal that he is none too happy that that former Chair Khan has tied his hands in the early days of his Chairmanship. (It should be noted that because even the FTC is not immune to reductions in force from DOGE, Chairman Ferguson’s concerns about the efficient use of FTC’s limited resources have some increased urgency.) Logic would therefore dictate that Ferguson would want the Commission to dismiss or settle these two cases at some point before they get too far down the road.

As she also filed dissents in both cases (see here and here) fellow Republican Commissioner Melissa Holyoak would likely be on board. Both Ferguson and Holyoak have made compelling arguments that because the FTC is likely to lose both Southern Glazer and PepsiCo, pursuing these cases will waste precious Commission resources. Moreover, if these cases are as weak as Ferguson and Holyoak claim, then taking them to trial raises the specter of creating bad legal precedent in an already dysfunctional area of antitrust law. And the Trump-Vance FTC is being criticized for failing to differentiate itself on both a substantive and practical basis from the shenanigans of the previous administration. Cleaning up the Robinson-Patman mess left by Lina Khan would certainly help mute some of this criticism.

But an interesting question arises from President Trump’s nomination of Mark Meador as the third Republican Commissioner. In a July 2024 FedSoc Blog post entitled Not Enforcing the Robinson-Patman Act is Lawless and Likely Harms Consumers, Meador argued against critics of Chair Khan’s then-forthcoming Robinson-Patman case against Southern Glazer. (I wrote a response to Meador’s arguments.) Ferguson no longer needs Meador’s vote to break a deadlocked FTC due to President Trump’s recent (and controversial) firing of the two Democratic Commissioners. But if the Chairman seeks to dismiss or settle Southern Glazer or PepsiCo, will Meador agree, or will the Republican Commissioners divide over this issue?

How this Robinson-Patman Act drama at the FTC will play out is anyone’s guess. But given its impact on the future enforcement of such a controversial area of antitrust law, this debate undoubtedly merits our continued attention.