Friday I discussed FTC Commissioner (and TOTM alumnus) Josh Wright’s speech at the Spring Meeting of the ABA’s Antitrust Section. Wright’s speech, What’s Your Agenda?, is now available online.
As I mentioned, Commissioner Wright emphasized two matters on which he’d like to see FTC action. First, he hopes the Commission will help fulfill the promise of Section 5 of the FTC Act by articulating an “Unfair Methods Policy Statement” that includes both “guiding principles for Section 5 theories of liability outside the scope of the Sherman and Clayton Acts” and “limiting principles confining the scope of unfair methods claims.” Articulation of such principles would reduce the incidence of market power-enhancing conduct that could be difficult to pursue under the Sherman and Clayton Acts (the “guiding principles” would put firms on notice that such conduct is to be avoided), but they would also avoid chilling procompetitive conduct (the “limiting principles” would create zones of safety). Giving guidance to business planners on what the FTC is likely to pursue — and what it’s not — would thereby enhance the effectiveness of the antitrust enterprise.
Commissioner Wright also stated his intention to utilize the FTC’s powers to pursue public restraints — i.e., output-limiting conduct authorized or required by governmental entities. Wright explained:
An agency sensitive to efficiently executing its competition mission will look for low hanging fruit—in other words, it will identify and bring enforcement actions to prevent conduct that is clearly anticompetitive and thus bring immediate and certain benefits for consumers.
Public restraints upon trade represent precisely this type of increasingly rare low hanging fruit and, thus, should be a more central concern of U.S. competition policy. The legal hurdles facing enforcement against public restraints often render policy advocacy the primary weapon for the FTC in this area; and it is a weapon the FTC has wielded effectively and consistently over time. The FTC also has brought enforcement actions to challenge public restraints in recent years in appropriate cases. I support vigorous use of both tools….
I’m heartened by Commissioner Wright’s leadership on these matters and look forward to seeing how things develop at the Commission.