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What Do We Do with Presumptions in Antitrust?

TOTM Winter was coming, as it does. We knew the agencies were going to issue new merger guidelines, and then they did. On Dec. 18, 2023, . . .

Winter was coming, as it does. We knew the agencies were going to issue new merger guidelines, and then they did. On Dec. 18, 2023, the Federal Trade Commission (FTC) and U.S. Justice Department (DOJ) jointly issued merger guidelines, supplanting 2023’s draft guidelines, the 2010 Horizontal Merger Guidelines, and the 2020 (partially withdrawnVertical Merger Guidelines.

That’s big news in antitrust, even though the guidelines do not have the force of law. There’s more on the merger guidelines below. But what else is new?

Read the full piece here.

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Antitrust & Consumer Protection

The Conundrum of Out-of-Market Effects in Merger Enforcement

TOTM Section 7 of the Clayton Act prohibits mergers that harm competition in “in any line” of commerce. And, indeed, the Supreme Court’s decisions in Philadelphia National . . .

Section 7 of the Clayton Act prohibits mergers that harm competition in “in any line” of commerce. And, indeed, the Supreme Court’s decisions in Philadelphia National Bank and Topco are often cited on behalf of the proposition that this means any single cognizable market, and that anticompetitive effects in one market cannot be offset by procompetitive effects in another.

That would appear to simplify antitrust analysis, and it certainly can. But as is so often the case in antitrust, apparent simplicity can be confounding in application. Is it really true that harm in any market, however narrow, is grounds to block a merger, whatever its broader effects? Is that the best reading of legal precedent? Is it required? And is it either practicable or desirable?

Read the full piece here.

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Antitrust & Consumer Protection

The Porcine 2023 Merger Guidelines (The Pig Still Oinks)

TOTM Well, they have done it. On Dec. 18, the Federal Trade Commission (FTC) and U.S. Justice Department (DOJ) issued their final 2023 merger guidelines, as an . . .

Well, they have done it. On Dec. 18, the Federal Trade Commission (FTC) and U.S. Justice Department (DOJ) issued their final 2023 merger guidelines, as an early New Year’s gift (nicely sandwiched between Hanukkah, which ended Dec. 15, and Christmas) of the porcine sort.

The two agencies try to put lipstick on this pig by claiming that the guidelines “emphasize the dynamic and complex nature of competition,” an approach that supposedly “enables the agencies to assess the commercial realities of the United States’ modern economy when making enforcement decisions.” But no amount of verbal makeup prevents this porker from oinking, despite the valiant best efforts of the antitrust agencies’ talented and highly respected chief economists (Susan Athey and Aviv Nevo) to argue otherwise.

Read the full piece here.

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Antitrust & Consumer Protection

Why Challenges To FTC Authority Are Needed

Popular Media Facebook parent Meta Platforms Inc. filed suit against the Federal Trade Commission in the U.S. District Court for the District of Columbia on Nov. 29, . . .

Facebook parent Meta Platforms Inc. filed suit against the Federal Trade Commission in the U.S. District Court for the District of Columbia on Nov. 29, alleging the FTC’s administrative proceedings against the company are “structurally unconstitutional,” and that they violate the Fifth Amendment’s Due Process Clause, the Seventh Amendment’s right to trial by jury, and Articles I and III of the U.S. Constitution.

The suit — which also names Commissioners Lina Khan, Rebecca Kelly Slaughter and Alvaro Bedoya — raises complex issues of constitutional and administrative law.

In brief, it’s about the limits of agency authority and, not incidentally, what authority Congress can properly delegate to federal agencies. It is also, at least arguably, an expression of backlash to regulatory overreach.

Such a backlash seemed increasingly likely, if not inevitable, given the FTC’s recent blitz of activity in the tech sector. That includes not just enforcement matters but an ambitious regulatory agenda.

Read the full piece here.

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Antitrust & Consumer Protection

A Consumer-Welfare-Centric Reform Agenda for the Federal Trade Commission

TOTM As we approach a presidential election year, it is time to begin developing a  comprehensive reform agenda for the Federal Trade Commission (FTC). In that . . .

As we approach a presidential election year, it is time to begin developing a  comprehensive reform agenda for the Federal Trade Commission (FTC). In that spirit, this post proposes 12 reforms that could be implemented by new leadership, either through unilateral action by a new chair or (in some cases) majority votes of the commission.

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Antitrust & Consumer Protection

Gus Hurwitz on Meta’s Challenge of FTC Constitutionality

Presentations & Interviews ICLE Director of Law & Economics Programs Gus Hurwitz was a guest on The Cyberlaw Podcast, where he discussed Meta’s broadening attack on the constitutionality . . .

ICLE Director of Law & Economics Programs Gus Hurwitz was a guest on The Cyberlaw Podcast, where he discussed Meta’s broadening attack on the constitutionality of the Federal Trade Commission’s (FTC) current structure. Other subjects tackled include South Korea’s law imposing internet costs on content providers, the Biden Federal Communications Commission’s first two months with a majority, the race to 5G, and the FTC’s last-ditch appeal to stop the Microsoft-Activision merger. Audio of the full episode is embedded below.

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Telecommunications & Regulated Utilities

Hands Across the Agencies

TOTM In the headline to a Dec. 7 press release, the Federal Trade Commission (FTC) announced that it, in concert with the U.S. Justice Department (DOJ) and . . .

In the headline to a Dec. 7 press release, the Federal Trade Commission (FTC) announced that it, in concert with the U.S. Justice Department (DOJ) and U.S. Department of Health and Human Services (HHS), had managed to “Lower Health Care and Drug Costs, Promote Competition to Benefit Patients, Health Care Workers.” According to the subhead: “Recent agency actions have helped lower costs, increase care quality for consumers and promote competition across the health care market.”

The headline sounds great. One wonders about the extent to which the subhead is true.

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Antitrust & Consumer Protection

Where Are the New FTC Rules?

TOTM Perhaps more than at any time in its history, the Federal Trade Commission (FTC) under Chair Lina Khan has highlighted substantive rulemaking as a central . . .

Perhaps more than at any time in its history, the Federal Trade Commission (FTC) under Chair Lina Khan has highlighted substantive rulemaking as a central element of its policy agenda. But despite a great deal of rule-related sound and fury (signifying nothing?), new final rules have yet to emerge, and do not appear imminent. This post explores some possible “whys and wherefores” that may help explain this seemingly peculiar state of affairs, and the policy implications of the commission’s recent rulemaking activity.

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Antitrust & Consumer Protection

Google, Amazon, Switching Costs, and Red Herrings

TOTM Way back in May, I cracked wise about the Federal Trade Commission’s (FTC) fictional “Bureau of Let’s Sue Meta,” noting that the commission’s proposal (really, . . .

Way back in May, I cracked wise about the Federal Trade Commission’s (FTC) fictional “Bureau of Let’s Sue Meta,” noting that the commission’s proposal (really, an “order to show cause”) to modify its 2020 settlement of a consumer-protection matter with what had then been Facebook—in other words, a settlement modifying a 2012 settlement—was the FTC’s third enforcement action with Meta in the first half of 2023. That seemed like a lot, even if we ignored, say, Meta’s European and UK matters (see, e.g., here on the EU Digital Markets Act’s “gatekeeper” designations; here on the Norwegian data-protection authority; here and here on the Court of Justice of the European Union, and here on the UK Competition Appeal Tribunal).

Read the full piece here.

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Antitrust & Consumer Protection