Focus Areas:    Antitrust | DOJ Antitrust Division | merger review

More on the Fighting Antitrust Agencies

One additional observation on the WSJ story Paul mentioned.  Much has been written about the strained relationship between the FTC and DOJ in antitrust matters.  There has, of course, never been a more descriptive and entertaining version of these tensions than the one offered by former Chairman and now Commissioner Kovacic who observed that the so-called sister agencies amounted to “an archipelago of policy makers with very inadequate ferry service between the islands” where “too many instances when you go to visit those islands the inhabitants come out with sticks and torches and try to chase you away.”

Its been awhile since that particular description, but the quotes in the Journal article really suggest a remarkable level of tension between the agencies.  Consider:

  • Commissioner Rosch describing the DOJ as “an arm of the administration,” that “can and will enforce the antitrust laws only insofar as that is consistent with administration policy;”  or
  • Even going so far as to question whether AAG Varney was able to take an unbiased view of health care related matters because of her past representation of the American Hospital Association.

Fairly serious stuff.  Perhaps the Commissioner and AAG just need some topic upon which they can both agree?

The inter-agency clearance fights, and especially the high-profile ones that bring out the sticks and torches, significantly undermine the mission of antitrust enforcement institutions.  Commissioner Kovacic closes the article with the basic, but critical point:   “The fact and appearance of a contest are bad for the coherence,” says Mr. Kovacic. “If you develop a perception that you’re going to get different outcomes depending on where [a deal] goes, your system suffers.”

 

Filed under: antitrust, clearance, doj, federal trade commission