Trump poised to choose Simons as FTC chair

10 August 2017

President Donald Trump has chosen former US Federal Trade Commission official and Paul Weiss Rifkind Wharton & Garrison partner Joseph Simons as the head of the commission, bypassing current acting chairman Maureen Ohlhausen, sources tell GCR.

Bloomberg first reported Trump's preference for Simons yesterday, although the report said the president has not made a final decision on the matter. However, sources familiar with the process suggest that Trump decided to nominate Simons weeks ago, and has been waiting for him to complete his background check before formally announcing the nomination - likely in early September.

The administration appears to have decided against Ohlhausen, the only Republican currently on the commission, in its search for a permanent head of the agency. Ohlhausen has actively campaigned for the role, spending the first months of Trump's presidency blasting Obama-era FTC policies and promising to strip away regulations that she said have impeded free and fair competition. 

She has garnered the support of many in the antitrust bar and on Capitol Hill as she publicly jockeyed to maintain her chairmanship, and those supporters have expressed immense frustration that Trump appears to have discounted Ohlhausen's candidacy, multiple sources say. 

An FTC commissioner since 2012, Ohlhausen has fostered significant support among former Republican appointees for her consistently conservative approach to both policy and enforcement. For example, her dissent in the FTC's vote to sue chipmaker Qualcomm shortly before Trump's inauguration won praise from influential conservative think tanks the Federalist Society, the American Conservative Union and the Heritage Foundation, which previously had voiced little support for Ohlhausen. 

Just days after Ohlhausen said she was considering whether to withdraw the Qualcomm lawsuit, she gave a sweeping policy speech at the Heritage Foundation setting out her vision for antitrust policy under the Trump Administration. 

The Google factor

But two sources with knowledge of the administration's thinking said Ohlhausen was viewed among some on Trump's transition team as too traditional a conservative voice, particularly compared to PayPal founder Peter Thiel and former FTC commissioner Joshua Wright, both of whom advised on antitrust matters during the transition. While Ohlhausen had support within some pockets of the White House, a source said, others with influence preferred Utah attorney general Sean Reyes, who was thought to be the early front-runner for the FTC chairmanship. 

While Reyes was never taken seriously inside antitrust circles, by the time he backed out of consideration for the chairmanship earlier this summer, there was very little political will inside the White House to reconsider Ohlhausen as permanent chairman, a source said.

Reyes, however, possessed one quality Trump prizes in an FTC candidate: a healthy scepticism of Google, the online search giant that remains closely tied to the Obama Administration in the minds of conservatives, two sources with knowledge of the administration's thinking told GCR. Wright's connections to Google might have cost him an opportunity to lead the Department of Justice's antitrust division. 

Conservative pundits and media outlets, including Breitbart, branded Ohlhausen as Google's FTC chairman of choice, all but ending her chance for serious consideration inside the administration, the sources said. 

Ohlhausen's candidacy might have been taken more seriously inside the administration had the process for evaluating and nominating personnel been less chaotic, another source close to the transition said.

In past administrations, a streamlined process identified and interviewed potential candidates and reported their qualifications to the president. But in the first months of the Trump presidency, the source said, candidates for antitrust positions were interviewed by random administration staff including from the Office of Personnel Management and the Council of Economic Advisors. 

After speaking yesterday at a Federalist Society event, Ohlhausen declined to take questions from reporters, saying she had to leave.

Deciding on Simons

Sources stressed that Simons had nothing to do with the White House's decision to move on from Ohlhausen and that, other than his appearing on the transition team's shortlist of potential antitrust candidates, it was unclear how the administration came to prefer Simons for the position. 

By all indications, he is unaffiliated with any of the traditional channels that leads an administration to nominate someone for the antitrust agencies, one source said. Simons does not appear to be a political choice, as Reyes would have been, nor is he closely associated with former FTC chair Tim Muris or another known centre of gravity in the world of conservative antitrust. 

But those sources also said Simons in an obvious choice for any antitrust position in a Republican administration. "Joe is a very smart guy and a real antitrust lawyer," one source said. 

Simons led the FTC's bureau of competition from 2001 until 2003, during the George W Bush administration. His time marked a significant period of success for the commission and an increase in the number of merger challenges and non-merger enforcement matters. 

He would be the second Paul Weiss antitrust partner to take a top position at the antitrust agencies under Trump. In April, former partner Andrew Finch joined the Antitrust Division as its acting head; he will become principal deputy if and when the Senate confirms Makan Delrahim as assistant attorney general for antitrust. 

Simons did not respond to a request for comment. 

Another candidate for one of the vacant Republican seats on the commission is Christine Wilson, the Delta Air Lines in-house counsel and former chief of staff to Muris. Wilson has in the past been shortlisted for FTC vacancies when they arise - most recently when Wright left the commission - due in part to Muris's sway in Republican antitrust circles. 

Observers question whether Ohlhausen will remain at the FTC if and when Simons is nominated and confirmed. While press reports indicate she will stay on at the commission, one source with knowledge of Ohlhausen's thinking said she appeared reluctant to remain on for the duration of her term, which expires in September 2018, if she is not chairman.