The FTC plays an essential role in curbing illegal mergers and monopolies and increasing its enforcement is welcome. But to do so effectively, the FTC must stop ignoring the value of expertise, democratic accountability, and due process.
Until relatively recently, antitrust had not been a high-profile area of law. In recent years, commentators (including at this center) made a number of critiques about the course of antitrust to push back against some of the most commonly-held antitrust assumptions. These assumptions include issues such as rulings that make class actions more difficult, insufficient merger enforcement, insufficient attention to monopsony, and the interface of IP licensing with antitrust, among other issues. Since that time, the pushback against traditional bipartisan antitrust grew. The Biden administration chose a set of antitrust critics for prominent leadership roles in the White House and at both antitrust agencies, which populists in the Republican party also embrace. A new bipartisan consensus of populists of left and right may not agree on issues such as mandatory Covid vaccines, immigration, or race but they find common cause in economic populism based on hostility to large corporations, especially large technology companies.
While antitrust should always evolve as economic thinking and empirical work changes various assumptions, we believe that something different is afoot: The Biden administration is following the Trump Administration’s approach of prioritizing loyalty and ideology over expertise and experience among staff—at least at one federal agency: the Federal Trade Commission (FTC). By minimizing the importance of expertise, democratic accountability, and due process, however, the FTC is undermining its ability to effectively enforce our antitrust laws. This has manifested itself in a number of ways:
Fewer judicial checks on bureaucratic power. Recently, the FTC has announced that companies that want to settle antitrust concerns about a current deal must agree to give the agency the power to block later ones that it considers similar, without having to go to court. By aiming to bring cases and make rules to stop what it deems “unfair methods of competition” rather than antitrust violations, the FTC narrows the scope and defers the time of judicial review.
Rejection of expertise. The current FTC leadership criticizes reliance on economic analysis, caricaturing academic literature to justify dropping the agency’s guidance to companies about which vertical mergers may be challenged.
As Professors Carl Shapiro and Herbert Hovenkamp have written for this blog regarding the basis of the vertical merger guidelines:
“This statement is flatly incorrect as a matter of microeconomic theory. [Elimination of Double Marginalization] applies (a) to multi-product firms, (b) regardless of whether the firms at either level have monopoly power or charge monopoly prices, and (c) regardless of whether the downstream production process involves fixed proportions. All of this has been included in economics textbooks for decades, building on a seminal 1950 paper by Joseph Spengler.”
This is a symptom of the larger process problem: The majority statement on the withdrawal cited the agency’s experience—yet the staff was likely not consulted. If they had been, they could have ensured the statement made the economically-defensible case for stricter merger review.
Leaders of well-managed organizations listen to staff, but the FTC staff, Commissioner Christine S. Wilson recently said, has become increasingly marginalized in decision-making, noting “current leadership has sidelined and disdained our staff.” This leads the staff to invest less in the agency and the best employees to find other employment. What keeps talented staff making less money in the government is the knowledge that they make a difference. Without motivated and high-quality staff, the FTC cannot effectively maintain current work levels, let alone effectively expand enforcement. In her testimony, Wilson said that staff have been silenced externally—or as Commissioner Wilson states more directly, FTC leadership has been “muzzling staff internally and externally”—forbidden to speak publicly and present their scholarship. Ignoring and disrespecting staff undermines the agency’s capabilities and leads to enforcement errors and court losses.
Internal decision-making. Studies across fields show the importance of diverse viewpoints in creating more effective outcomes. Yet the FTC, said Wilson, has erected walls between majority Democratic and minority Republican Commissioners—they no longer share drafts of decisions, which is unprecedented in modern antitrust history.
Due process. The FTC hastily created public meetings without sufficient opportunity for stakeholders to respond with comments; for example, the public had only a week to respond to the plan to drop the vertical merger guidelines to offer comments to update the reality of the merger guidelines, after roughly a year since their introduction and with arguments for its withdrawal being challenged by the leading antitrust law and economics professors and the Department of Justice expressing reservations about the hasty withdrawal. Further, the FTC invites only one-minute commentary for stakeholders and only after it has voted (often along partisan lines—a change from prior administrations where agreement on harms created more legitimacy for enforcement).
The increase in political polarization has now bled into antitrust, and the FTC has become political in a way that it had not been for more than a generation. This violates accepted norms of proper notice and comment and creates a sham version of input. Further, the FTC’s abandonment of the vertical merger guidelines while the Department of Justice Antitrust Division has kept them (at least for now, though it is possible that AAG for Antitrust Kanter may withdraw) means that when a deal is reviewed by one agency, the companies arbitrarily will be treated differently than they would by the other antitrust enforcer.
Undermining accountability. Populists have criticized antitrust policy as insufficiently accountable to the democratic process, making it odd the FTC is assuming authority to make competition rules without explicit Congressional authorization. Odder still, the FTC claims that Section 5 of the FTC Act should be expanded to its 1914 original intent, but at the same time expands the pre-merger review law to include the notification of debt in merger filings—against the express original intent of that law. And when companies comply with the law and then complete their mergers, the FTC is issuing letters threatening to sue at some indefinite later time, defeating the purpose of pre-merger review and eliminating a critical bargaining chip that incentivizes companies to give the FTC sufficient time to conduct its review.
A Way Forward
First, Commissioners should embrace procedural fairness principles of due process, transparency, and genuine openness to input. Such an embrace creates better evidence to shape outcomes.
Second, the FTC should create substantive legitimacy. Deliberation on the substance requires acknowledging both the benefits and costs. The best way to do this is to seek out non-partisan expertise, as well as input from stakeholders, rather than relying on ideological predispositions in which economic analysis takes a backseat to other amorphous factors. Economic analysis provides an empirical basis for action and tools to understand evidence and data. As economics changes, it allows antitrust to embrace new theoretical insights informed by facts. Durable change requires good process, dispassionate analysis and buy-in from multiple external stakeholders as well as from the courts. Legitimacy in substantive outcomes based on careful deliberation will make such outcomes less likely to be overturned by future administrations. This greatly reduces the risk of unintended or harmful consequences.
Third, use the expertise and experience of the FTC staff. If the best antitrust lawyers and economists feel disrespected and ignored, they have no reason to stay in public service for much less money than they could make in the private sector. Without them, the FTC cannot perform its essential role of keeping our economy competitive.
Disclosure: D. Daniel Sokol and Abraham L. Wickelgren are law professors specializing in antitrust at the University of Southern California and the University of Texas, respectively. Neither are involved in cases before the FTC, though Sokol met his wife on a blind date set up by two FTC lawyers and Wickelgren served as a staff economist in the FTC’s Bureau of Economics (1999-2004). Sokol (as a Senior Advisor with White & Case LLP) and Wickelgren both do antitrust consulting but not before the FTC. Sokol also serves as an unpaid academic advisor to the US Chamber of Commerce on antitrust issues.
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