President Biden has issued firm instructions to FTC Chair Lina Khan to investigate whether big oil should be held legally accountable for the recent runup in oil prices. The fact of some price increase seems beyond dispute. The average monthly Brent crude price dropped as low as $18.38 in April 2020, at the onset of the COVID crisis, but had risen to $83.54 in October 2020. But look just a little bit further and matters are not so simple, for by November 19, 2021, that price had dropped to $78.60. Indeed, this nineteen-month period witnessed wide fluctuations in price. Nonetheless, without referring to any price data, Biden broadly claimed that the “mounting evidence of anti-consumer behavior by oil and gas companies” should trigger an investigation into potential collusive behavior.

Given that “gasoline prices at the pump remain high, even though oil and gas companies’ costs are declining,” such alleged behavior, Biden assumes, has allowed big oil companies to double their profits since 2019, thereby allowing for stock buybacks and dividends in the coming year. “Hard-working Americans”—a tried and true appeal to populist instincts—should not be “paying more for gas because of anti-competitive or otherwise potentially illegal conduct,” he said, which is why he has urged the FTC to bring “tools to bear” to ferret out and punish any possible wrongdoing.

It should be apparent that it does not take much in Biden’s eyes to instigate a lengthy and hostile investigation. Rising profits are no antitrust violation when they generate dividends, many of which end up in the pension funds of those hard-working Americans. And buybacks and dividends free up capital for either consumption or further investment. Unfortunately, in Lina Khan’s new age of antitrust enforcement, it appears unnecessary to allege anything that would make the price-fixing claim credible, for just how are the oil companies able to conspire to keep prices artificially high? OPEC finds that task difficult even with its formal agreements and enforcement powers. But the number of potential participants for any effective covert oil and gas price-fixing scheme must be few in order to deter individual companies from deviating from the cartel price by offering hidden concessions to its preferred customers. That does not seem possible when the roster of the ten largest oil companies reads as follows: