The FTC’s Robinson-Patman Hangover
There is no special virtue in seeing a bad case through to the bitter end. At some point, persistence looks less like principle and more like a sunk cost with a docket number.
Last week, I wrote about the Federal Trade Commission’s (FTC’s) appeal in FTC v. Meta Platforms. The appeal seems to me a bad idea.
I quarreled with several points raised by the commission in its opening brief. My main concerns, however, were these: The FTC failed to show that the conduct at issue—two long-ago consummated mergers—caused ongoing harm to competition or consumers. It was also hard to envision a remedy that would benefit competition or consumers if the FTC ultimately prevailed on liability (contingent, of course, on reversal and remand and, then, a new liability decision).
More broadly, it seemed a serious waste of limited agency resources to appear before the U.S. Court of Appeals for the D.C. Circuit in late 2026 to argue for reversal and remand, so that the U.S. District Court for the District of Columbia could reconsider its finding against liability for acquisitions that the FTC investigated, reviewed, and allowed to close without complaint in 2012 and 2014.
In brief, I argued that the FTC exercised its enforcement discretion poorly at several decision points, and perhaps in between them: in 2020, when it rushed to file a weak complaint in the waning days of the first Trump administration; in 2021, when it filed amended complaints following dismissal of the 2020 complaint; in 2025, when it took a flawed case to trial; and now, in 2026, with this appeal.
This post is not about that case. It does, however, share some background concerns with my recent little (or exceedingly long) missive.