ICLE Calls for Stronger FTC Research Capacity and Clearer Limits on Enforcement
PORTLAND, Ore. (Sept. 29, 2026) — Congress should strengthen the Federal Trade Commission’s (FTC) research capacity and work to remove government barriers to competition while limiting the administrative discretion that can turn uncertain legal theories into costly investigations, settlements, and rules, the International Center for Law & Economics (ICLE) said in comments filed with the U.S. House Committee on Energy and Commerce.
The comments respond to the committee’s request for information on FTC reform. ICLE President Geoffrey A. Manne, Senior Scholar Daniel J. Gilman, and Director of Economic Research Eric Fruits authored the filing.
“The Commission’s success should be measured by improvements in consumer welfare—considering price, output, innovation, and product quality—rather than the number of cases it brings or the reach of its regulatory ambitions,” the authors write.
The filing follows the U.S. Supreme Court’s decision in Trump v. Slaughter, which invalidated legal protections against removing FTC commissioners without cause. ICLE identifies two paths for Congress. Its preferred approach would keep enforcement at the FTC but move contested cases to federal court. A broader overhaul would limit the FTC to research and competition advocacy and transfer enforcement to the Department of Justice (DOJ). That approach would bring transition costs and risk weakening the FTC’s consumer-protection expertise.
Under either approach, ICLE recommends that federal district courts decide contested liability cases and merger challenges. Congress could also make permanent the FTC’s recent practice of seeking final court orders to block mergers without pursuing a parallel administrative case. “An expert agency can supply evidence and analysis without deciding the merits of a complaint it authorized,” the comments state.
The authors call for investigative demands that state their purpose and justify their scope. They also recommend prompt, independent review when recipients challenge those demands. If an investigation goes six months without substantive written communication, the FTC should close it or provide a reasoned, time-limited extension. “The cost of answering extensive compulsory demands can induce settlement even when the underlying legal theory is doubtful,” the authors write.
The comments also recommend that Congress and the FTC:
- Narrow rulemaking authority: Replace reliance on broad provisions of the FTC Act with specific congressional authorizations. Recent court decisions set aside the FTC’s noncompete rule, a rule governing automatic renewals and similar sales practices, and its Combating Auto Retail Scams rule.
- Strengthen economic review: Give the FTC’s Bureau of Economics a formal, independent role before the agency approves major investigative demands, complaints, consent orders, and rules. Publish economic assessments that explain material disagreements.
- Apply a consistent competition standard: Use the consumer welfare standard for claims that conduct constitutes an unfair method of competition. Withdraw the FTC’s 2022 policy statement on such claims and revise merger guidance to reflect evidence on new entrants, efficiencies, and relationships between firms at different stages of production.
- Limit new monetary remedies: Reject open-ended restoration of the monetary authority the Supreme Court ruled out in AMG Capital. Confine any new direct route to consumer compensation to clearly defined fraud decided in federal court.
- Reassess consent orders: Set an eight-year presumptive term for orders outside fraud cases, with a review after five years.
- Preserve consumer-protection limits: Require evidence that a misleading claim matters to consumers and give businesses fair notice of their legal obligations, including in personalized-pricing and data-security cases.
To interview one of the authors, contact Jim Fellinger at [email protected]. Download the full comments here.
About ICLE
The International Center for Law & Economics is a nonprofit, nonpartisan research center working with a roster of more than one-hundred academic affiliates and research centers from around the globe. ICLE scholars promote the use of law and economics methodologies to inform public policy debates.