Written Testimonies & Filings

ICLE Comments to the House Commerce Committee on FTC Reform

Executive Summary

The International Center for Law & Economics (ICLE) welcomes the Committee’s request for information on reforming the Federal Trade Commission (FTC). Congress should make the FTC a more reliable source of economic knowledge and constrain the discretion through which uncertain theories become costly investigations, settlements, or rules.[1] 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.[2]

The biggest opportunity for reform is strengthening the FTC’s research, information, and competition-advocacy functions, which can reduce the uncertainty that complicates competition and consumer-protection policy. The most defensible structural option would maintain the FTC’s enforcement authority at the FTC while requiring contested cases to proceed in federal court. A more expansive reform might instead confine the Commission to research and advocacy and move coercive enforcement to the Department of Justice (DOJ), which could potentially come at the cost of transition burdens and risks to the Commission’s consumer-protection expertise.

Beyond strengthening the agency’s research and competition-advocacy activities, we suggest Congress consider the following targeted reforms:

1. Require contested FTC Act liability and merger challenges to proceed in federal district court.
2. Ensure that investigative demands are proportionate, provide prompt independent review, and require timely closing notices.
3. Replace general Section 18 substantive rulemaking authority with specific congressional authorizations; foreclose substantive competition rulemaking under Section 6(g); and strengthen economic analysis, enforceable procedural safeguards, and retrospective review of major rules.
4. Reject open-ended monetary relief for novel or contestable theories; confine any new direct redress authority to clearly defined fraud and demonstrated consumer injury.
5. Shorten the duration of non-fraud consent orders and require interim review.
6. Give the Bureau of Economics a formal, independent role in review before adoption of any major demands, complaints, consent orders, rules, and significant policy statements.
7. Require consumer-welfare limits on competition enforcement, including standalone Section 5 claims; press the FTC to replace the 2022 UMC statement and the agencies to revise the Merger Guidelines accordingly.
8. Codify deception’s materiality and reasonable-consumer requirements, permit meaningful rebuttal of materiality presumptions, and enforce Section 5(n)’s distinct limits on unfairness.
9. Require guidance and settlements to respect fair notice and their legal limits, with public comment and proportionate economic assessment of significant guidance.

Recent judicial decisions make these issues timely, but much of the necessary work concerns ordinary agency practice. Congress can establish durable requirements for evidence, process, and accountability while using oversight to press for changes the Commission can make under its present authority.

I. Strengthen the FTC’S Research and Policy Capacity

Competition policy must distinguish conduct that harms consumers from conduct that fosters competition through lower prices, higher quality, greater innovation, or other benefits. Consumer protection faces similar challenge. Restrictions on information, advertising, data use, or product design can remove benefits as well as risks. Policy must weigh the costs of mistaken intervention, the costs of leaving harmful conduct unaddressed, and the limits of the institutions making those judgments.[3]

The FTC can help supply the evidence those judgments require across diverse competition and consumer protection issues. Section 6 of the FTC Act authorizes the agency to gather and report market information. The Commission’s Office of Policy Planning and, especially, its Bureau of Economics have produced valuable “policy R&D.” That work has guided enforcement and served as a source of information and analysis to federal and state legislators.[4]  Congress should give that work clearer priority, supported by economists, statisticians, technologists, and relevant industry experts.[5]

A stronger research program should examine how markets work before recommending changes. It should study entry, innovation, business practices, and consumer decision-making, then assess whether past merger remedies, rules, and enforcement programs achieved their stated purposes. Retrospective studies should examine mistaken predictions and ineffective interventions alongside any successes. Examples of such work by FTC staff are numerous. We recommend building on those capabilities through process reforms and focused congressional support. The Commission should choose research questions for their policy value, rather than solely to support pending cases, and publish findings even when they do not support its enforcement positions.

Licensing restrictions, certificate-of-need requirements, and other government-created barriers can protect incumbents at consumers’ expense. Where antitrust immunity shields conduct from enforcement, research and advocacy may be the most effective response.[6] ICLE’s recent comments to the FTC and DOJ explain why examining public restraints should remain one of the agency’s top responsibilities.[7]

International engagement should follow the same evidence-based approach. The FTC should explain the consumer benefits of competition and innovation, assess the costs of foreign restrictions, and resist general presumptions with weak support in the economic literature. A firm’s size or a rival’s disadvantage, for example, does not by itself establish harm to competition and consumers. Public statements of enforcement policy should identify the economic and legal basis for each position.[8]

The Commission should also invite outside economists and other qualified researchers to test competing explanations using the information it collects. Where statutory confidentiality limits disclosure, controlled access, confidentiality undertakings, and review of proposed publications may permit independent analysis while safeguarding competitively sensitive information. Public reports should disclose methods and limitations, and disclose enough underlying evidence or data for others to assess their conclusions. Compulsory information requests still need a defined question and a proportionate scope. Calling an inquiry research does not eliminate its costs.[9]

Congress should assess staffing and funding against the work to be done. It should require reporting on the quality and use of research; the results of retrospectives, investigations, and other studies; and the duration and closure of investigations, alongside enforcement activity. More investigations or larger monetary recoveries do not, by themselves, demonstrate that an agency uses its resources well.

II. Evaluate the FTC’s Structure After Trump v. Slaughter

Trump v. Slaughter invalidated the FTC’s for-cause removal protection in light of its executive functions and overruled Humphrey’s Executor to the extent anything of that decision had survived intervening cases.[10] It left open, however, whether Congress should consolidate enforcement or redesign the Commission. Nor did the decision erase the possible value of bipartisan membership, multidisciplinary expertise,[11] and deliberation, all of which remain compatible with presidential removal.

As we see it, Congress has two defensible options. It could retain the FTC’s enforcement role while moving contested adjudication to federal court, or, as part of a broader reform, it could instead limit the Commission to research and advocacy and leave coercive enforcement to the Department of Justice (DOJ).

A redesigned Commission would not automatically insulate it against presidential removal—among other things, its power to compel information, e.g., would likely require its own constitutional analysis. And, under any design, procedural safeguards for investigations, rulemaking, and remedies should apply to whichever agency exercises enforcement authority. Their value does not depend on which party controls the executive branch.

A. Retain Competition and Consumer-Protection Enforcement at the FTC

The most palatable option would strengthen the FTC’s research and advocacy functions while retaining its competition and consumer-protection enforcement. As Section III explains, contested cases would proceed in federal district court. Such independent judicial determination of liability in the first instance would constrain enforcement discretion, diminishing some of the concerns arising out of the supposed reduction of agency independence after Trump v. Slaughter.

Transferring enforcement to the DOJ would impose costs that the administrative simplicity of consolidation might not offset. The DOJ’s antitrust work closely overlaps with the FTC’s competition mission, but experience litigating FTC civil-penalty referrals[12] does not establish that moving the FTC’s broader consumer-protection program would preserve its expertise or improve outcomes.

And transferring competition enforcement alone would undermine an important institutional advantage of the FTC: its capacity to assess competition and consumer-protection questions through shared economic analysis and a common decision-making process.[13] Restrictions on advertising, data use, or product design, for example, may address consumer harms while also raising entry costs, limiting discounts, or discouraging innovation. Conversely, enforcement against deception can improve consumers’ ability to compare competing offers. Keeping the two functions together increases the likelihood these sorts of effects will be considered, and it holds the same decisionmakers responsible for the consequences of both enforcement programs. Section 5(n) reflects this connection by requiring unfairness analysis to account for countervailing benefits to consumers or competition.[14] That said, the FTC’s use of economic analysis in consumer-protection enforcement has been uneven, and Congress should strengthen the economic review that makes this combination valuable.[15]

B.  Focus the FTC on Research and Advocacy

A more expansive reform could limit a multimember FTC to market studies, economic analysis, retrospective evaluation, reporting, and domestic and international competition advocacy. Coercive civil enforcement would move to DOJ. The Commission would neither adjudicate cases nor issue substantive rules. The case for this model rests on the value of a dedicated research institution whose judgments are separate from the incentives to initiate and defend enforcement actions. Transparent research methods, publication of internal disagreements, and a defined mission would protect its professional independence, consistent with the Constitution’s separation of powers.

On the other hand, separating research from enforcement could weaken both. And the DOJ already conducts research and engages in competition advocacy.[16] Congress would therefore need to specify how the Commission’s findings would inform enforcement by the DOJ and other enforcers. It would also need to address several organizational matters such as referrals, cross-border cooperation, personnel, and statutory remedies.[17] Nevertheless, Congress should compare the relative merits of each agency’s competing institutional design and consider whether greater specialization would be beneficial.

III. Move Contested FTC Cases to Federal Court

Congress should require contested liability under the FTC Act and merger challenges to be decided in federal district court, whether enforcement remains at the FTC or moves to the DOJ. Ordinary FTC civil-penalty actions under Sections 5(l) and 5(m) already proceed there.[18] The change would extend court adjudication to contested liability and prospective orders.

Many procedural objections to FTC enforcement arise from Part 3 adjudication, in which the Commission both authorizes a complaint and later decides its merits. The concerns grew in 2023, when the Commission replaced administrative law judge (ALJ) initial decisions—which could become final without Commission review—with recommended decisions that receive automatic Commission review.[19] Federal-court litigation would also eliminate some differences in the burdens antitrust defendants face based solely on whether the interagency “clearance process” assigns a case to the FTC or the DOJ’s Antitrust Division.

Axon allows certain constitutional challenges to reach district court without awaiting the administrative process; it did not invalidate Part III adjudication.[20] Jarkesy addresses the jury right for the Securities and Exchange Commission’s securities-fraud civil penalties, not necessarily every form of agency adjudication.[21] But Congress could step in to mandate such a shift.

The FTC has begun seeking permanent merger injunctions in federal court without a parallel administrative case, as its August announcement concerning Henkel explains.[22] Congress should consider codifying that approach. An expert agency can supply evidence and analysis without deciding the merits of a complaint it authorized.

Expertise should rest on sound analysis, rather than the identity of the decisionmaker. If the FTC retains enforcement, any retained administrative process for resolving cases should be confined to voluntary settlements, with clear terms and a stated factual and legal basis. If Congress replaces the underlying adjudicative process, it should also revise provisions that condition later remedies on a final administrative order. A change of forum should neither eliminate a remedy nor create duplicate proceedings.

For mergers, reform should give parties a predictable path from a preliminary-injunction ruling to a final decision on the merits without successive or duplicative proceedings. Harmonizing FTC and DOJ procedures makes sense where it removes differences without an economic or policy justification. But a preliminary ruling should not stand in for a final merits decision, and a faster procedure should preserve the opportunity to test the evidence.[23]

A.  Make Investigations Proportionate and Accountable

The cost of answering extensive compulsory demands can induce settlement even when the underlying legal theory is doubtful. Congress should require each demand to state its purpose, connect requested material to that purpose, and justify its scope in light of the likely evidentiary value and compliance burden. Major demands and material expansions should receive documented economic review and approval by an accountable official.[24]

Recipients need a prompt, practical way to obtain independent review of contested demands. That review should consider the number of custodians, time periods, duplication, and the cost of producing data in the requested form. Industrywide research demands need the same discipline, including a public explanation of the study question and the expected use of the information. The Commission should approve the actual scope of each study rather than rely on a broad standing authorization.

Congress should also consider requiring timely closing notices and periodic written explanations for continuing an investigation. We propose that, say, six months without substantive written communication trigger closure or a reasoned, time-limited extension, with documented exceptions where notice would compromise a legitimate investigation. Such a rule would end the indefinite uncertainty of inactive inquiries without hampering fraud investigations.[25]

Penalty-offense notices , which warn recipients that specified conduct may carry civil penalties, require particular care. Section 5(m)(1)(B) already requires a qualifying determination other than a consent order and actual knowledge that the conduct is unlawful. It also provides additional court review for a defendant who was not a party to the earlier proceeding.[26] Congress should require each notice to identify the precise adjudicated practice and explain its relevance, while preserving a meaningful opportunity to contest whether the recipient’s conduct falls within that determination.

Complaints should allege facts supporting the applicable statutory elements, rather than merely label conduct unfair, deceptive, or anticompetitive. An unfairness theory must explain the injury caused or likely to be caused, why it is substantial, why consumers could not reasonably avoid it, and why countervailing benefits do not outweigh it. A deception theory must identify the misleading representation, omission, or practice and its materiality. A competition theory must explain the competitive harm and account for relevant efficiencies.

IV. Define and Discipline FTC Rulemaking

Congress should eliminate reliance on Section 6(g) of the FTC Act as a source of general substantive competition-rulemaking authority.[27] It should also consider replacing the FTC’s general authority to issue consumer-protection rules under Section 18 with specific legislative authorizations that define the practice, objective, and limits of each delegation. Implementing a defined congressional policy—as the Commission does under the Fairness to Contact Lens Consumers Act and the Children’s Online Privacy Protection Act—differs from deciding what conduct to prohibit across the economy under an open-ended unfairness standard. Existing subject-specific mandates and rules would require express transition provisions.

The noncompete litigation shows why Congress should settle the scope of Section 6(g). In Ryan, a Texas district court held that the provision grants procedural, rather than substantive, rulemaking authority and set aside the noncompete rule. A Florida district court preliminarily enjoined the rule on major-questions grounds without deciding the Section 6(g) question. A Pennsylvania district court declined to enjoin it, finding that the Commission likely had authority to issue substantive competition rules. The Commission later dismissed its appeals, leaving the Section 6(g) question without an appellate resolution. Congress should define that authority and reduce the prospect of renewed rulemaking and litigation under a future Commission.[28]

In Custom Communications, the 8^th U.S. Circuit Court of Appeals vacated the amended negative-option rule because the Commission failed to prepare the preliminary regulatory analysis Section 22 requires when a rule has an estimated annual effect on the national economy of $100 million or more.[29] In National Automobile Dealers Association, the 5^th U.S. Circuit Court of Appeals vacated the CARS rule because the Commission skipped the advance notice of proposed rulemaking required by its rules of practice.[30] In February 2026, the FTC removed the noncompete and CARS rules and restored the prior negative-option provisions to conform to the court decisions.[31] These results support clearer grants of authority and enforceable procedural discipline. They do not, however, establish that every consumer-protection rule is unlawful.

Congress has twice tightened the Commission’s consumer-protection rulemaking. The 1975 Magnuson-Moss amendments subjected Section 18 rules to procedures beyond those required by the Administrative Procedure Act, including an informal hearing and substantial-evidence review.[32] In response to the rulemaking that followed, Congress added further procedural and oversight requirements in 1980. In 1994, it codified limits of unfairness in Section 5(n). Those limits, however, do not apply to unfair methods of competition.[33] Reading Section 6(g) to authorize substantive competition rules would let the Commission issue them without those safeguards.

Where Congress authorizes rulemaking, it should preserve meaningful opportunities to test disputed evidence and require analysis early enough to inform the choice. Section 22 already calls for preliminary and final analyses. It permits judicial review of a complete failure to prepare them while limiting review of their adequacy.[34] Reform should address those provisions directly. Congress should consider making the agency’s threshold determinations and its treatment of significant contrary evidence reviewable. It should also require a supplementary preliminary analysis and a meaningful opportunity to comment when new information materially changes a rule’s expected effects.[35]

Rulemaking analysis should identify the specific injury, a credible baseline, likely benefits and costs, effects on entry and innovation, and less restrictive alternatives. Large projected transfers between groups should not be mistaken for net social gains, and uncertain estimates should disclose their assumptions. The Commission’s 2022 advance notice on commercial surveillance and data security treated privacy, data security, advertising, and algorithmic decision-making as a single subject, although each involves different practices, evidence, and potential remedies.[36] It gave little attention to the limits of the Commission’s authority or to the benefits consumers receive from data-supported services. The proceeding remains at the preregulatory stage, with no proposed rule issued.[37]

Congress should also consider requiring retrospective review of major rules against their stated objectives. Revising or withdrawing an unsuccessful rule would demonstrate analytical discipline. Procedural requirements serve a purpose when they improve decisions, rather than generate paperwork that supplies no useful information.

V. Calibrate Monetary Remedies and Consent Orders

AMG Capital foreclosed restitution and disgorgement under Section 13(b), but left the FTC’s other monetary remedies intact.[38] Section 19 authorizes consumer redress for qualifying rule violations. It also provides a separate route for conduct covered by a final cease-and-desist order that a reasonable person would have known was dishonest or fraudulent.[39] Sections 5(l) and 5(m) authorize civil penalties under specified conditions.[40] Congress should assess any proposed expansion against those remaining authorities and evidence of cases they cannot adequately address. It should not assume that restoring the former Section 13(b) practice is necessary.

We oppose restoring open-ended monetary authority for novel or contestable theories. If demonstrated gaps in existing remedies justify a new direct route to redress, Congress should confine it to clearly defined fraud, require a causal connection to consumer injury, specify how to measure compensable loss, set a limitations period, and require adjudication in federal court. Restitution, disgorgement, and civil penalties serve different purposes and should not be treated as interchangeable. Prompt relief against fraud can benefit consumers, but broader financial exposure also increases pressure to settle before the agency proves unlawful conduct.[41]

Congress should consider shorter terms and periodic reassessment review for non-fraud consent orders. We recommend an eight-year presumptive term, with review in year five. Longer restrictions should require a case-specific explanation of continuing risk and likely benefits. Existing modification authority places the burden on respondents to seek relief. Scheduled review would instead require the agency to reassess whether restrictions remain justified as technology, markets, and law change.[42]

Orders should specify the required conduct and maintain a demonstrable connection between the violation and the remedy. Broader restrictions may be justified for deliberate or repeated fraud, but ordinary cases should not become occasions to regulate unrelated future conduct. In LabMD, the court vacated an insufficiently specific order while assuming unfairness for purposes of its analysis. It did not hold that the FTC lacks all data-security authority. Settlements bind their respondents: They cannot establish obligations for everyone else.[43]

VI. Ground FTC Decisions in Economic Evidence

Congress should consider giving the Bureau of Economics a formal, independent role before the Commission approves major investigative demands, complaints, consent orders, rules, and significant policy statements. Review should fit the decision and test the theory of harm, the evidence, alternative explanations, and the expected costs of intervention and nonintervention. Economists should be able to communicate directly with commissioners. Their review role should inform decisions without, for example, requiring elaborate quantification in every straightforward fraud matter.[44]

For public actions, a separate economic assessment should explain the analysis and any material disagreement, subject to confidentiality protections. The Commission should explain any departure from that assessment. Published reasoning would let Congress and outside researchers evaluate the agency’s decisions while leaving responsibility for them with the Commission.

The consumer welfare standard should govern competition enforcement, including standalone claims under Section 5’s unfair-methods-of-competition provision. Commissioner Mark R. Meador’s Sept. 14 call for renewed standalone Section 5 enforcement makes substantive limits especially important.[45] Congress should require evidence connecting challenged conduct to harm to the competitive process and consumers, including effects on output, quality, innovation, and price. Harm to a rival, concentration, or firm size cannot substitute for that showing. The FTC can address prospective harm without treating a theoretical possibility as sufficient evidence to intervene.[46]

The FTC’s 2022 policy statement on unfair methods of competition[47] marks a distinct and expansive departure from precedent and prior agency practice.[48] We recommend that the Commission withdraw it and, in due course, publish guidance tied to competitive effects, cognizable efficiencies, and administrable legal limits.

The FTC and DOJ should also revise merger guidance to reflect evidence on entry, efficiencies, and relationships between firms at different levels of a supply chain. The guidance should identify transactions that ordinarily present little competitive concern. Stability does not justify retaining poorly supported presumptions. Congress should demand the supporting analysis without legislating particular concentration thresholds.[49]

A. Apply Deception and Unfairness Standards Consistently

Congress should consider codifying the core deception requirements: a material representation, omission, or practice likely to mislead consumers acting reasonably in the circumstances, with a meaningful ability to rebut presumptions of materiality.[50] A consumer’s mistaken expectation alone should not create an unlimited duty for businesses to explain their operations without evidence of a misleading practice. Unfairness has a distinct statutory test: conduct must cause or be likely to cause substantial injury that consumers cannot reasonably avoid and that countervailing benefits to consumers or competition do not outweigh.[51] These limits should constrain enforcement even when the conduct at issue is unpopular or unfamiliar.[52]

The proposed personalized-pricing statement illustrates the current risks.[53] A seller’s false claim about a price may be deceptive, but consumer expectations of uniform pricing alone do not establish a duty to disclose personalization, its basis, and the types of data used. Such a duty may reduce available discounts with little, if any, countervailing benefit.[54] The agency should establish the allegedly misleading implication and its materiality, then assess whether disclosure would improve consumer decisions. Research into consumer understanding, the prevalence of deceptive pricing, and the effects of disclosure should precede a general enforcement presumption.[55]

Data-security enforcement likewise requires more than identifying a breach and prescribing better security after the fact. The agency should connect the alleged deficiency to the statutory injury and explain why the demanded precautions were reasonable under the circumstances. Clear findings and specific remedies can encourage useful precautions; vague obligations to maintain a comprehensive program can leave firms uncertain about what compliance requires.[56]

These examples also show the risks of regulating through guidance and settlements. A firm may adopt disclosures recommended in a policy statement or security measures required by another company’s settlement to avoid an expensive investigation, even where the Commission has not established that the law requires them. Agency expectations can thus become practical compliance standards without a determination that the underlying conduct is unlawful.[57] As Geoffrey A. Manne warned, “the FTC’s processes have enabled it to operate with essentially unbounded discretion in developing the doctrine by which its three high level standards [the Unfairness, Deception, and UMC Policy Statements] are applied in real-world cases.”[58] To reduce that risk, guidance, reports, and settlements should distinguish legal obligations from recommended practices. Significant guidance should receive public comment and proportionate economic assessment while remaining nonbinding. Congress should ensure that enforcement rests on a demonstrated violation of governing law, not merely a departure from guidance or another firm’s settlement.

VII. Conclusion

Congress should strengthen the FTC’s capacity to produce useful evidence while placing targeted limits on discretion that permits weakly supported interventions. That calls for sustained research and advocacy, independent economic scrutiny, court adjudication of contested cases, proportionate investigations, and remedies that remain justified over time.

[1] See generally Legislative Hearing on 17 FTC Bills Before the Subcomm. on Com., Mfg. & Trade of the H. Comm. on Energy & Com., 114th Cong. 3 (2016) (prepared statement of Geoffrey A. Manne, Exec. Dir., Int’l Ctr. for L. & Econ.), http://docs.house.gov/meetings/IF/IF17/20160524/104976/HHRG-114-IF17-Wstate-ManneG-20160524.pdf [hereinafter Manne Testimony].

[2] See Int’l Ctr. for L. & Econ. & TechFreedom, Consumer Protection & Competition Regulation in a High-Tech World: Discussing the Future of the Federal Trade Commission 1–2, 10–12 (Dec. 2013), http://docs.techfreedom.org/FTC_Tech_Reform_Report.pdf; Berin Szóka & Geoffrey A. Manne, The Federal Trade Commission: Restoring Congressional Oversight of the Second National Legislature ii–iii, 38–64 (May 2016), http://docs.house.gov/meetings/IF/IF17/20160524/104976/HHRG-114-IF17-Wstate-ManneG-20160524-SD004.pdf [hereinafter 2016 Report].

[3] See Int’l Ctr. for L. & Econ., Antitrust Principles and Evidence-Based Antitrust Under the Consumer Welfare Standard 1–3 (2018) (comments submitted for the FTC Hearings on Competition and Consumer Protection in the 21st Century); Int’l Ctr. for L. & Econ., The Current Landscape of Competition and Consumer Protection Law and Policy 1–2 (2018) (comments submitted for the FTC Hearings on Competition and Consumer Protection in the 21st Century).

[4] See William E. Kovacic, The Federal Trade Commission at 100: Into Our Second Century (2009), https://www.ftc.gov/sites/default/files/documents/public_statements/federal-trade-commission-100-our-second-century/ftc100rpt.pdf; see also Paul A. Pautler, FTC Bureau of Econ., A History of the FTC’s Bureau of Economics (2015), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2657330.

[5] See Daniel J. Gilman, Back to the Future (of Competition Research and Advocacy), Truth on the Mkt. (Apr. 25, 2025), https://truthonthemarket.com/2025/04/25/back-to-the-future-of-competition-research-and-advocacy. See also Marc Winerman, The Origins of the FTC: Concentration, Cooperation, Control, and Competition, 71 Antitrust L.J. 1, 4–5, 79–82, 138–41 (2003) (explaining that the House passed a bill creating an investigatory commission before adopting a prosecutorial approach).

[6] See James C. Cooper, Paul A. Pautler & Todd J. Zywicki, Theory and Practice of Competition Advocacy at the FTC, 72 Antitrust L.J. 1091, 1092 (2005); Maureen K. Ohlhausen, Identifying, Challenging, and Assigning Political Responsibility for State Regulation Restricting Competition, 2 Comp. Pol’y Int’l. 151 (2006).

[7] See Eric Fruits, Daniel Gilman, Ben Sperry, Kristian Stout & Mario Zúñiga, ICLE Comments to FTC and DOJ on Anticompetitive Regulations 7–9 (May 27, 2025), https://laweconcenter.org/resources/icle-comments-to-ftc-and-doj-on-anticompetitive-regulations; see also 2016 Report, supra note 2, at 87–90.

[8] See 2016 Report, supra note 2, at 89–90.

[9] See id. at 53–63.

[10] Trump v. Slaughter, No. 25-332, slip op. at 25–28 (U.S. June 29, 2026).

[11] Appointments to the Commission are, of course, the prerogative of the president, subject to the advice and consent of the Senate. While we cannot gainsay the utility of relevant legal expertise on the Commission, we note the historical paucity of appointees with graduate-level training in economics (in total, four: James C. Miller III (1981–85), George W. Douglas (1982–85), Dennis Yao (1991–94), and Joshua D. Wright (2013–15)).

[12] Under 15 U.S.C. § 56(a)(1).

[13] See Kovacic, supra note 4.

[14] 15 U.S.C. § 45(n).

[15] See infra, Section VI.

[16] See U.S. Dep’t of Just., Expert Analysis Group Papers, https://www.justice.gov/atr/expert-analysis-group-papers (last visited Sept. 28, 2026); U.S. Dep’t of Just., Competition Advocacy Papers, https://www.justice.gov/atr/competition-advocacy-papers (last visited Sept. 28, 2026).

[17] See Alden Abbott, Why Trump May Consolidate Federal Antitrust Enforcement, Truth on the Mkt. (Dec. 2, 2024), https://truthonthemarket.com/2024/12/02/why-trump-may-consolidate-federal-antitrust-enforcement (discussing consolidation of antitrust enforcement while retaining the FTC’s consumer protection role).

[18] 15 U.S.C. § 45(l)–(m).

[19] FTC Rules of Practice, 88 Fed. Reg. 42,872 (July 5, 2023) (codified at 16 C.F.R. pts. 0–4).

[20] Axon Enter., Inc. v. FTC, 598 U.S. 175, 191–96 (2023).

[21] SEC v. Jarkesy, 603 U.S. 109, 120–27, 140 (2024).

[22] See Fed. Trade Comm’n, Statement on FTC Win Blocking Loctite, Liquid Nails Construction Adhesive Merger (Aug. 17, 2026), https://www.ftc.gov/news-events/news/press-releases/2026/08/statement-ftc-win-blocking-loctite-liquid-nails-construction-adhesive-merger. (announcing the FTC’s “new approach” of seeking permanent injunctions to block anticompetitive mergers in federal court without continuing administrative proceedings).

[23] See 2016 Report, supra note 2, at 82–85.

[24] See id. at at 38–52.

[25] See 2016 Report, supra note 2, at 78–80. The six-month trigger is a proposed design choice, not a description of existing law or an empirically established optimum.

[26] 15 U.S.C. § 45(m)(1)(B), (2).

[27] See, e.g., Maureen K. Ohlhausen & James F. Rill, Pushing the Limits? A Primer on FTC Competition Rulemaking, Truth on the Mkt. (July 7, 2022), https://truthonthemarket.com/2022/07/07/pushing-the-limits-a-primer-on-ftc-competition-rulemaking.

[28] Ryan, LLC v. FTC, 746 F. Supp. 3d 369, 389–90 (N.D. Tex. 2024); Props. of the Villages, Inc. v. FTC, No. 5:24-cv-316-TJC-PRL, 2024 WL 3870380 (M.D. Fla. Aug. 15, 2024); ATS Tree Servs., LLC v. FTC, No. 24-1743, 2024 WL 3511630 (E.D. Pa. July 23, 2024).

[29] Custom Commc’ns, Inc. v. FTC, 142 F.4th 1060, 1070–72, 1074–75 (8th Cir. 2025).

[30] Nat’l Auto. Dealers Ass’n v. FTC, 127 F.4th 549 (5th Cir. 2025).

[31] Revision of the Negative Option Rule, Withdrawal of the CARS Rule, Removal of the Non-Compete Rule to Conform These Rules to Federal Court Decisions, 91 Fed. Reg. 6507, 6508–09 (Feb. 12, 2026). Although the Dodd-Frank Act permitted the CARS rule through ordinary notice-and-comment procedures, the court held that the Commission’s rules of practice required advance notice.

[32] Magnuson-Moss Warranty—Federal Trade Commission Improvement Act, Pub. L. No. 93-637, 88 Stat. 2183 (1975).

[33] Federal Trade Commission Improvements Act of 1980, Pub. L. No. 96-252, 94 Stat. 374 (1980); Federal Trade Commission Act Amendments of 1994, Pub. L. No. 103-312, 108 Stat. 1691 (1994); 15 U.S.C. §§ 45(n), 57a.

[34] 15 U.S.C. § 57b-3(a)–(c).

[35] Custom Commc’ns, 142 F.4th at 1070–75.

[36] Trade Regulation Rule on Commercial Surveillance and Data Security, 87 Fed. Reg. 51,273 (Aug. 22, 2022).

[37] See Int’l Ctr. for L. & Econ., Comments on Trade Regulation Rule on Commercial Surveillance and Data Security (Docket No. FTC-2022-0053, Nov. 21, 2022), https://laweconcenter.org/wp-content/uploads/2022/11/ICLE-Commercial-Surveilance-ANPR-Comments-v4.pdf; see also Int’l Ctr. for L. & Econ., Toward a Proper Understanding of Consumer Privacy and Its Regulation 1–3 (May 31, 2019), https://laweconcenter.org/wp-content/uploads/2019/07/Toward-a-Proper-Understanding-of-Consumer-Privacy-and-Its-Regulation-FTC-Hearings-ICLE-Comment-10.pdf; Int’l Ctr. for L. & Econ., Privacy, Antitrust, and the Economic Approach to the Regulation of Consumer Data 1–3 (2018), https://laweconcenter.org/resources/icle-comments-the-regulation-of-consumer-data.

[38] AMG Cap. Mgmt., LLC v. FTC, No. 19-508, slip op. at 1, 7–10, 14–15 (U.S. Apr. 22, 2021).

[39] 15 U.S.C. §§ 57b(a)–(b).

[40]

15 U.S.C. §§ 45(l)–(m).

[41] See 2016 Report, note 2, at 68–74. See also Alden Abbott, A Consumer-Welfare-Centric Reform Agenda for the Federal Trade Commission, Truth on the Mkt. (Dec. 14, 2023), https://truthonthemarket.com/2023/12/14/a-consumer-welfare-centric-reform-agenda-for-the-federal-trade-commission (proposing limited monetary relief for fraud).

[42] See 2016 Report, supra note 2, at 75–77; Joshua D. Wright, Statement Before the Subcomm. on Com., Mfg. & Trade of the H. Comm. on Energy & Com., Legislative Hearing on 17 FTC Bills 10–12 (May 24, 2016), https://docs.house.gov/meetings/if/if17/20160524/104976/hhrg-114-if17-wstate-wrightj-20160524.pdf; 15 U.S.C. § 45(b). The eight-year term and five-year review are design choices drawn from the 2016 Report. Wright favors shorter terms but leaves their length open.

[43] LabMD, Inc. v. FTC, 894 F.3d 1221, 1231, 1235–37 (11th Cir. 2018).

[44] See Wright, supra note 30, at 5–10; 2016 Report, supra note 2, at 48–64; Geoffrey A. Manne, Bringing Antitrust’s Economic and Institutional Limits to the FTC’s Consumer Protection Authority 3, CPI Antitrust Chron. (May 2014).

[45] Mark R. Meador, Comm’r, Fed. Trade Comm’n, The Model, Mission, and Future of the Federal Trade Commission (Sept. 14, 2026), https://www.ftc.gov/system/files/ftc_gov/pdf/Meador-The-Model-The-Mission-FTC.pdf.

[46] See Int’l Ctr. for L. & Econ., The Continued Viability and Flexibility of the Consumer Welfare Standard, and the Weakness of Its Alternatives 12–13 (Dec. 31, 2018), https://laweconcenter.org/resources/icle-comments-the-consumer-welfare-standard-and-the-role-of-presumptions.

[47] Fed. Trade Comm’n, Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act 8–12 (Nov. 10, 2022), https://www.ftc.gov/system/files/ftc_gov/pdf/p221202sec5enforcementpolicystatement_002.pdf.

[48] See, e.g., Daniel J. Gilman & Gus Hurwitz, The FTC’s UMC Policy Statement: Untethered from Consumer Welfare and the Rule of Reason (ICLE Issue Brief, Nov. 16, 2022), https://laweconcenter.org/wp-content/uploads/2022/11/FTC-UMC-Policy-Statement.pdf.

[49] See Int’l Ctr. for L. & Econ., Comments of the International Center for Law & Economics on the FTC & DOJ Draft Merger Guidelines (Sept. 18, 2023), https://downloads.regulations.gov/FTC-2023-0043-1555/attachment_1.pdf; see also Brian Albrecht, The FTC Shouldn’t Turn Back the Clock on Merger Analysis, Truth on the Mkt. (Feb. 19, 2025), https://truthonthemarket.com/2025/02/19/the-ftc-shouldnt-turn-back-the-clock-on-merger-analysis.

[50] See Fed. Trade Comm’n, Policy Statement on Deception, 103 F.T.C. 174, 175–76, 182–83 (1984) (appended to Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984)).

[51] 15 U.S.C. § 45(n).

[52] See 2016 Report, supra note 2, at 21–27.

[53] Fed. Trade Comm’n, Federal Trade Commission’s Proposed Enforcement Policy Statement Regarding Personalized Pricing 4–6 (Aug. 19, 2026), https://www.ftc.gov/system/files/ftc_gov/pdf/p034101-ftc-enforcement-policy-statement-re-personalized-pricing-proposed-for-public-comment.pdf.

[54] See Int’l Ctr. for L. & Econ, Comments on the Proposed Enforcement Policy Statement Regarding Personalized Pricing (Sep. 25, 2026), https://laweconcenter.org/resources/icle-comments-on-the-ftcs-personalized-pricing-proposed-enforcement-policy-statement.

[55] Id.

[56] See Int’l Ctr. for L. & Econ., The FTC’s Flawed Data Security Enforcement Program and Suggestions for Reform 1, 5 (May 31, 2019), https://laweconcenter.org/wp-content/uploads/2019/07/The-FTC%E2%80%99s-Flawed-Data-Security-Enforcement-Program-and-Suggestions-for-Reform-FTC-hearings-ICLE-Comment-8.pdf.

[57] See 2016 Report, supra note 2, at 4–5, 14; see also id.

[58] See Manne Testimony, supra note 1, at 3.