(Bloomberg) -- Less than a year into their new jobs, President Joe Biden’s competition regulators are infuriating the legal establishment they’ve wrested power from. 

“The current rhetoric is terrifying,” said Jonathan Jacobson, a lawyer whose clients include Alphabet Inc.’s Google and other large technology companies. 

For decades, U.S. regulators took a laissez-faire approach to mergers and sharp-elbowed competition. But a new generation of antitrust thinkers has taken charge in Washington and is eager to return to the trustbusting vigor of the early 20th century. 

At conferences, in op-eds and in speeches, the old guard is in high dudgeon, worried that the aggressive turn threatens the profits of their clients -- some of the U.S.’s largest corporations -- and potentially their own livelihoods. They complain that the new crew is sowing confusion as it subjects dominant companies to tougher scrutiny. 

The tension was on display at the first in-person American Bar Association antitrust conference since 2019 earlier this month in the nation’s capital. Jacobson and thousands of attorneys paid as much as $1,495 to attend the legal confab’s events and listen to industry veterans grapple with the newly combative antitrust enforcers. 

Openly Derisive

Some attendees were openly derisive of the so-called New Brandeisians, named for Supreme Court Justice Louis Brandeis, who in the early 1900s warned of the dangers of concentrated economic power. 

Barry Lynn, the director of the Open Markets Institute, a Washington policy group, and an ally of Federal Trade Commission Chair Lina Khan, accused professionals in the room of using “idiot science” over the past four decades to allow a consolidation of power that has weakened democracy. 

The room erupted into laughter when he finished speaking. “That was not dismissive laughter, that was nervous laughter,” Lynn said later. 

Khan, who previously worked for Lynn, built her reputation advocating once-fringe ideas that the traditional playbook for policing monopolies had failed, that more corporations should be broken up and that more mergers should be blocked outright. Those views now guide policy at the FTC and have been echoed by Biden, powerful senators like Elizabeth Warren of Massachusetts, and Khan’s counterpart at the Justice Department, Jonathan Kanter. 

Khan’s power to act, however, is limited: The FTC lacks a fifth member, leaving it split 2-2 along party lines and forcing the chair to win support from a Republican commissioner to get anything done. 

But the Senate is expected to confirm a fifth commissioner, Alvaro Bedoya, in the coming weeks. That would unleash Khan’s ability to more aggressively enforce her agenda.

The looming Democratic majority may help explain why one of Khan’s fiercest critics comes from within the agency. 

Christine Wilson, a Republican FTC commissioner, at a separate conference accused the new antitrust enforcers of being “hellbent on destroying” the FTC and accused Khan of fueling a staff exodus. An FTC spokesperson said the staff attrition rate in the 10 months since Khan took over “is on par” with that of the previous two chairpersons during the same period. 

The legal establishment bemoans that the FTC and Justice Department are abandoning the “consumer welfare standard,” which narrowly focuses on higher consumer prices when assessing the negative effects of mergers. The standard largely ignores factors like job losses, wage cuts, erosion of privacy protections or harm to small businesses. 

Many predict that legal challenges to mergers won’t make it past federal judges, who decide cases based on previous court decisions. 

Last week, juries in two separate cases acquitted executives accused by the Justice Department of conspiring to reduce workers’ pay and job prospects. The acquittals could signal headwinds to the Biden administration’s effort to use criminal antitrust charges to stop companies from colluding to lower labor costs. Kanter has said the antitrust division has to be ready to lose some cases to move the law in a different direction.

Biden’s appointees seem unfazed. Kanter warned at the ABA event that the Justice Department is taking an aggressive stand and litigating more cases than at any time in recent history. “We’re not afraid to take on big companies,” he said to a room of about 1,000 lawyers. On the same panel, Khan touted a trio of recently proposed mergers that were abandoned in the face of FTC challenges.

Four days earlier, Khan and Kanter hosted their own -- free and live-streamed -- “enforcer’s summit” to explain their agendas to the public. Some saw this as a snub to the ABA, whose annual conference is where antitrust enforcers traditionally discuss policy. 

By preempting the conference and delivering combative speeches, the newcomers are signaling that they don’t need the legal establishment to accomplish their goals, said William Kovacic, a Republican former FTC chairman who teaches at George Washington University Law School. “The dismissive view of the establishment does sting a lot of people,” he said.

Even if the new crew isn’t loved by the old guard, lawmakers listen to them. Progressive allies of Khan and Kanter dominate the antitrust debate in Washington, according to an analysis by the political-risk advisory firm Baron Public Affairs. 

Government officials, policy makers and lawmakers in both parties disproportionately cite left-leaning antitrust theorists, according to the analysis. It concludes that “left-of-center supremacy in the antitrust debate” would likely continue even under a Republican-controlled government.

Kovacic, the former FTC chair, credits the New Brandeisians for maneuvering their way into power. “They basically said to themselves, ‘We don’t have to work with the establishment, we are going to overwhelm it.’”

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