Noah Phillips, one of two Republican commissioners on the Federal Trade Commission, has told POLITICO that he plans to leave the agency in the fall.
Phillips’ departure comes at an unusually high point in the agency’s history, with heightened skepticism toward corporate consolidation and tensions between Republicans and Democrats on the commission under Chair Lina Khan, a progressive antitrust hawk who has targeted tech behemoths and corporate concentration across the economy.
While Phillips’ departure is unlikely to have an immediate impact on agency decision-making because it will not jeopardize Khan’s Democratic majority, it will provide another opportunity for the White House and a bipartisan coalition of lawmakers to press the agency to be more aggressive in its fight against corporate power.
Phillips alerted FTC staff to his pending departure, according to a copy of the memo obtained by POLITICO. There is no set departure date, but Phillips has stated that he intends to resign in the fall. While Phillips stated that his primary reason for leaving was to prioritize his family, he also stated that one factor was his perception that the other commissioners were not open to discussion and compromise.
Since Khan took over as chair in June 2021, Phillips and his Republican colleague Christine Wilson have openly disagreed with her on policy and enforcement priorities, as well as her management of the agency, which has suffered from low morale since Khan took over. They have argued that the agency requires less funding, not more, as Khan has requested, that Khan is putting unnecessary obstacles in the way of corporate mergers, and that she is refusing input from dissenting voices.
When his spot becomes available, there may be a lot of competition for his replacement. When appointing minority commissioners to independent agencies, the president typically defers to the opposing party in the Senate. However, as Congress prepares for a contentious midterm election and faces bipartisan pressure for antitrust reform, the nomination could be divisive.
It’s unclear who will have the upper hand in the selection, but Sen. Ted Cruz (R-Texas) is expected to play a significant role. Cruz, who is expected to be either the chair or ranking member of the powerful Senate Commerce Committee (which has oversight authority over the FTC), praised Lina Khan’s accomplishments during her nomination hearing but was harsh on Alvaro Bedoya, the most recently confirmed Democratic commissioner, whom he labeled a “radical.” Cruz, a former FTC employee, has criticized tech behemoths for perceived biases against conservative speech, and he may push for someone ideologically aligned with those goals.
Senator Roger Wicker (R-MS), the current ranking member of the Senate Commerce Committee, is also expected to weigh in. Though Wicker initially supported Khan, he has since expressed concerns about her agency management, making him likely to support a less aggressive commissioner as well.
While Biden is likely to defer to Senate norms on nominations, he has made antitrust enforcement and competition policy a priority, and the White House may seek someone who agrees with Khan.
“Fundamentally, more than anything else, now is the right time for me and my family,” Phillips, who has been with the agency for slightly more than four years, said.
However, he added that current agency dynamics also influenced his decision to leave. He specifically mentioned the majority’s unwillingness to reach a consensus as a contributing factor.
“I’ve always tried to bring to light the tradeoffs the commission faces in doing the work we do,” Phillips said, whether it’s intellectual property enforcement or merger enforcement. “And the recent conversation hasn’t accounted for a serious discussion of counterargument.”
Phillips and Wilson took the unusual step in March of arguing against the White House’s request for a 30% budget increase for the agency.
In a March statement, they stated that there is “no assurance that the agency will abandon its current course of deviating from sound legal precedent and the commission’s established jurisdiction.” The majority commissioners’ changes to merger review procedures, which they claimed would make it unnecessarily burdensome on companies, were also dubbed “bonkers crazy.”
“I have enormous respect for Chairman Simons, [Acting] Chairwoman Slaughter, and Chair Khan,” Phillips said of the three agency leaders with whom he has worked. “I have strongly disagreed with each of them at times.” But it’s true that there have been more disagreements recently.”