ICYMI: Experts Warn FTC Should Not Misuse Authority to Remake Antitrust Law

BY Heather Greenfield
July 11, 2022

Washington – Concurrences Review and the Computer & Communications Industry Association hosted an event at the National Press Club June 27 on the Federal Trade Commission’s rulemaking authority. Throughout the day-long event, experts discussed the role of Congress vs. the FTC in changing antitrust law, and the legal and chilling economic impact of FTC’s approach to mergers and acquisitions through revised merger guidelines or Hart-Scott-Rodino reporting requirements. To watch the keynote or any of the four panels, click here.

Panelists warned that the FTC should not misuse guidelines to upend antitrust law and also weighed in on the unintended and harmful consequences of the proposed American Innovation and Choice Online Act (AICOA). 

Experts Warned the FTC Should Not Misuse Guidelines to Fundamentally Change Antitrust Law

  • James Rill, former Assistant Attorney General of Department of Justice’s antitrust division, now senior counsel at Baker Botts, made it clear the Commission’s misuse of guidelines “would have the force and effect of law.” Rill continued, “We have an evolutionary aspect to antitrust and it is complex and takes time. We trade off the difficulty of the method for the building of a proper foundation in time.”
  • Maureen Ohlhausen, former FTC Commissioner, now partner at partner, Baker Botts, emphasized that historically, “the way the FTC has changed antitrust law is through case-by-case adjudication.” She went on to add that the FTC “has a solid record of enforcement based on evidence.” She said that takes time and patience, but the FTC was created to make that sort of change.

Experts Noted Unintended and Harmful Consequences of Proposed Senate Legislation

  • On the subject of AICOA, Bilal Sayyed, Senior Adjunct Fellow, TechFreedom, emphasized “there is conduct that AICOA drafters and supporters want to get at that can already be targeted using current antitrust law.” He went on to say the bill creates problems for no particular reason and serves only as a tool for punishment clearly targeted at a small number of firms.
  • Howard University Prof. Andrew Gavil said AICOA prohibits conduct that is benign and that consumers like,  so the unintended consequences are problematic and the fines are so big they would discourage conduct that may be pro-competitive or pro-innovative.

Experts Discussed the Value of Mergers & Acquisitions and Risk Of AICOA Chilling M&As

  • University of Southern California Prof. Jonathan Barnett noted “one of the merger bills out there would flat out prohibit acquisitions by companies that exceed a certain threshold.”  That has “devastating effects” any time you separate antitrust law from economics.
  • Prof. Andrew Gavil outlined his worry around broad regulations stating it “ignores the reasons behind why these successful companies have grown and succeeded, and impacts the process for others to do the same.”
  • Berin Szoka, President & Founder, TechFreedom, warned of the “uncertainty where every business in America knew that the FTC could come after them for any number of matters. The danger is that the agency could become a super-legislator, and with regulatory capture, impact whatever market they chose in whatever manner they desire.”

 

A recording of the event is available here.

A full list of panelists and key references can be found on the event website located here.

 

 

 

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