Because the Biden administration has effective antitrust regulation as a policy goal and has staffed the FTC with competent people empowered to pursue that.
The set of political employees at the FTC is very small.
As for the rest, much like other critics, i don't believe Lina is competent, and i dont' think she's been effective at all.
I think she's showboated a lot and made plenty of press, but in the end, that just hides that they have achieved, in practice, far far less than almost any FTC that gave a crap.
When she's gone, she will leave behind a legacy of crappy precedent it will take someone years to clean up to get things to a state where the FTC can win antitrust cases again (their win rate under Lina is remarkably low).
The DOJ, on the other hand, has done a great job.
1. What’s the best place to research FTC win rates?
2. Given that Khan is taking an “aggressive” approach to what sorts of cases the FTC should pursue, wouldn’t it make sense for the win rate to be lower under her leadership?
2. No, actually. At least, not this much lower. The win rate is certainly limited by aggression in the extreme, but not as limited in practice as you might think.
Assume for a second the FTC historically only brought 50% of cases it had a 100% chance of winning (IE was not that aggressive).
If it now brought 100% of cases it had a 100% of winning, it would be much more aggressive (file twice as many cases), but the win rate would still be 100% :)
Now, obviously, if they were bringing 100% of cases they had a >50% chance of winning before (0% of cases with <50%), and now are bringing 100% of cases they had a >25% chance of winning before (0% of cases <25%), the win rate would go down a lot.
But the general view of experts (on both "sides", which includes some of their long time very-good very-experienced now-retired career attorneys ) is, basically
1. they were much closer to bringing 50% of the 100% win cases before.
2. they haven't moved to bringing 100% of the 100% win cases, they've moved to some totally strange and random distribution that is based more on press and politics. Microsoft/activision is a good example of this - their argument is very weak (basically that microsoft is monopolizing the cloud gaming business!?)
3. it would be a lot more effective to start by bring 100% of the 100% win cases, or 100% of the >95% win case or whatever, than what they are doing now. You can/should be a lot more aggressive, but still "feared" for winning.
I've put aside any of the other complicated factors to simplify the comment enough to answer your question effectively.
If anyone felt we were at the point they had been bringing 100% of >50% win rate case, and were now trying to bring 100% of >40% win rate cases, I think you'd see a very different perception occurring among experts.
The other complex disagreement (but is a bit of a sideshow given that) is not just on the approach overall, but the fallout from losing so much.
That argument, roughly, looks something like this on the legal side.:
A. The FTC has a tendency to file in a small number of courts (DC, California, Delaware).
B. It gets appealed to roughly the same courts as well
C. You end up in front of the same judges a lot
D. Being humans, they are not immune to bias (though again, these are much better judges than people give them credit for)
E. As a result, bringing crappy (IE 25% win rate) cases in front of them just doesn't just affect your current case, but also affects whether the 100% win rate case stays a 100% win rate case.
This is almost certainly true, and you can argue over the degree to which it's true.
We'll call this the "reputation effect on enforcement ability".
Similar argument about companies doing the calculus about their mergers and business practices, IE the "reputation effect on deterrence ability".
So even among the hawks (which i am, for example, but i'm an american school hawk, not a european school hawk :P) you end up with a view that you can be a lot more aggressive without either of these reputation effects, and you should start there, not with a randomized distribution that is in some sense more aggressive, but is unnecessarily causing serious reputation effects. This will, in turn, likely also enable you to turn 95% wins into 100% wins, etc.
Yes, they probably also believe in what they're doing and yes, they've been putting this together for a while, but it's not a coincidence that we've had a regular cadence of these announcements for the past few months.
Edit: Recognizing when your party is playing a political game is a healthy part of the democratic process even if you agree with their goals. Pretending your preferred party is above political showmanship isn't even party loyalty, it's just naivete. Everyone needs to put on the show to accomplish their goals.
I'm not sure why people get so offended at the idea that political appointees on their side time their actions around election cycles. It's easy to believe about the $other party (for whatever value of $other), but for some reason we're very hesitant to acknowledge that our own people play the same game by the same rules.
Acknowledging that doesn't imply anything about the policy or about the motives of the actors, it's simply an acknowledgement that they're good at their jobs and know how to time things. But I guess it must feel slimy and we like to believe our guys are above that sort of thing?
I'm not implying anything is broken about the process, but they're clearly timing their actions around the election. As just one example: out of the 36 Antitrust press releases from the Attorney General's office (the tags on this press release) [0], 13 (36%) were in 2024 and 7 (19%) were just in the months of August and September of this year. A regular cadence of 36 Antitrust announcements since the administration started would be <1 per month, so 3.5/mo over the past two months (one of which isn't even over) is a clear outlier. There's some allowance to be made for the time it takes to put a lawsuit together but not enough to account for that large a difference.
Again, that's not to imply anything about the ethics or motives of the people involved, nor to say they were sitting on their hands until now. All I'm saying is it's a reality of our political system that sometimes the answer to "why now?" is "because we saved it up for the election".
[0] Using filters here, unfortunately I can't directly link to a filter view: https://www.justice.gov/news/press-releases