Antitrust at the Agencies: National Nanny Hangover Edition
The Federal Trade Commission’s (FTC) rulemaking machinery is humming again. Is it being tuned for optimal performance—or revved for another trip into the ditch?
Most of the current action has to do with consumer protection. That’s par for the course, really. Apart from issuing the ill-fated noncompete rule, since vacated—comments here if anyone wants a recap—FTC rulemaking has been almost wholly on the consumer-protection side for as long as there’s been FTC rulemaking and a consumer-protection side to the agency. “Unfair or deceptive acts and practices,” or the FTC’s UDAP authority, were added to Section 5 in 1938 via the Wheeler-Lea Amendments, so it’s been a while.
For one thing, there’s no controversy over whether Congress has granted the commission substantive rulemaking authority over consumer-protection matters. It has—both a general authority under Section 18 of the FTC Act to prescribe rules against specific acts or practices that violate Section 5’s UDAP prong, and authority under various statutes that charge the FTC with adopting and enforcing particular restrictions addressing specific issues or practices. These include, among others, the Fairness to Contact Lens Consumers Act, the Children’s Online Privacy Protection Act, and the Fair Credit Reporting Act, later amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act, under which most—but not all—regulatory authority shifted to the Consumer Financial Protection Bureau.
But some competition-adjacent rulemaking remains under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act).
Rulemaking under the HSR Act is not exactly competition rulemaking. It doesn’t directly regulate which mergers are lawful and which are not. Still, it regulates the process by which mergers are screened and imposes affirmative obligations on firms contemplating mergers and acquisitions—at least for transactions above the filing threshold. Hence, these are competition-adjacent rules, and HSR rulemaking is competition-ish.