In a society governed by the rule of law, it is elementary that unelected regulators must act in a manner that is predictable, rests on sound reasoning, and is grounded in the letter and spirit of the authorizing statute. Over the past year, the leadership of the Federal Trade Commission has not acted consistently with this principle.
FTC leadership has reversed decades-old elements of antitrust policy with little opportunity for public comment, little effort to engage impacted constituencies, and little factual inquiry that have been the hallmarks of modern antitrust policymaking. In the words of minority commissioners Noah Phillips and Christine Wilson, these changes have been made “with the minimum notice required by law, virtually no public input, and no analysis or guidance.” The result has been the imposition of a once-defunct form of antitrust enforcement that is heavy on rhetoric and ideology and light on fact and analysis. To protect markets in the digital 21st century, the FTC has reverted to the discredited policies of the analog 1970s.
The FTC’s actions exhibit a consistent intent to discard an analytical framework that has rooted agency policymaking in a singular focus on factually demonstrated harm to competition as the touchstone for safeguarding a market economy. Given the loosely worded language of the antitrust laws, this framework provides assurance that regulators are acting in conformity with the statutory mandate to preserve the integrity of the competitive process.
In short order, FTC leadership has rescinded a 2015 policy statement that had reaffirmed the consumer welfare standard that has guided antitrust policymaking (and still governs federal antitrust case law) since the 1980s and withdrawn revised vertical merger guidelines that had been issued in 2020 with the Department of Justice and enjoyed broad support in the scholarly and practitioner communities. It would be thought that these abrupt policy shifts, which now diverge from DOJ Antitrust, would have been accompanied by a clear statement of revised policy. Nothing of the sort has been forthcoming. The result: carefully tailored agency guidelines refined over decades have been replaced by agency discretion as to what methods of competition may now be deemed after-the-fact as “unfair.”
The FTC’s changes to merger review policy most clearly substitute regulatory fiat for statutory constraint.
In 1976, Congress enacted the Hart-Scott-Rodino Act to replace disruptive post-transaction litigation with a pre-transaction clearance process that provides regulators with the opportunity to challenge a transaction but without unduly delaying the bulk of transactions that pose no antitrust risk. The agency has now upset a legislative balance that has been honored for almost 50 years.
In February 2021, the FTC “temporarily” suspended (but has not restored) the practice of granting early termination of the 30-day waiting period in the case of transactions that raise no antitrust issues. In August 2021, the FTC announced that it would send “warning letters” to parties that consummate a transaction after the waiting period has expired but before the agency believes it has had an opportunity to investigate fully. While the agency has always retained the right to challenge consummated mergers, this policy of indefinite delay cannot be reconciled with the intent behind the HSR Act since it reinstates much of the uncertainty merging parties had faced prior to passage of the statute.
In another apparent deviation from legislative design, the agency has reportedly been using its investigative powers in the merger review process to demand information that lacks a clear relationship to competition policy.
This unilateral rewrite of the HSR Act is not only legally contestable but casts doubt upon whether the agency remains committed to its statutory mandate to preserve the free play of competitive forces that drive a market economy.
That mandate requires that the agency act as an enforcer that vigorously intervenes on a case-specific basis to correct periodic threats to the competitive process. But the FTC appears to be moving toward a model in which it continuously regulates markets to achieve policy goals that extend substantially beyond preserving competition. (Tellingly, FTC leadership has removed language in its “Rules of Practice” that had defined the mission of the agency’s Bureau of Competition as seeking “to ensure price competition.”) This incipient conversion of antitrust policy into industrial and social policy threatens to convert free markets to managed markets in which firms must constantly seek regulatory clearance to avoid exposure to sanctions imposed by agency discretion untethered to any transparent policy framework.
This emergent shift is evident in the agency’s announcement in October 2021 that any company that enters into a consent order to settle an agency investigation of an acquisition — or merely abandons an acquisition in response to an investigation — would be subject to a “prior approval” order. The consequence: The company could not undertake any acquisition in the relevant market, or possibly other markets, without FTC approval, including acquisitions that would not meet the reporting thresholds under the HSR Act. This constraint would last for at least 10 years. Contrary to the agency’s characterization, this policy does not restore, but goes beyond, the past use of prior approval orders — so far, in fact, that it too departs from the statutory objective to facilitate, rather than suppress, M&A activity.
Only seven months ago, the Supreme Court issued its ruling in AMG Capital Management, LLC v. FTC, in which it unanimously admonished the FTC for having exceeded its statutory authority in seeking monetary relief in certain circumstances. Rather than taking account of the court’s ruling, the FTC has challenged the judiciary to the equivalent of an interbranch duel. An administrative agency is free to adopt new policies to promote its statutory mission; however, it is not free to venture beyond the ambit set by elected legislators. In a democracy, that principle should never be ignored.
Jonathan M. Barnett is a professor at the University of Southern California, Gould School of Law. He recently published "Innovators, Firms, and Markets: The Organizational Logic of Intellectual Property" (Oxford University Press 2021), a political and economic history of U.S. innovation policy and technology markets.