by Keith N. Hylton, William Fairfield Warren Distinguished Professor, Boston University School of Law
When I first heard that Josh had resigned from the FTC, I wondered if the news would cause a stock market sell-off. I checked later that day, and the Dow closed slightly up, plus .39 percent.
This suggests several possible explanations. One is that the stock market had already priced in Josh’s departure. Another is that the stock market realizes that Josh was just one of five votes, and that his replacement would cast votes similar to Josh’s. A third possible explanation is that the FTC doesn’t really have a great impact on the economy.
I think all three explanations have some merit, though especially the last two. The question is how much weight to allocate among the last two explanations.
As commentators have noted, Josh brought something unusual to the FTC: sophisticated training in economics. He also brought a lot of energy and natural political talent. If anyone could get fellow commissioners to listen to economic reasoning, surely it would be Josh. Even if his replacement votes the same way Josh did, he (or she) is unlikely to match Josh in offering strong arguments grounded in economics. That is a loss for the FTC, and for antitrust enforcement generally in this administration.
One clear achievement for Josh is the FTC policy statement on Section 5. At this stage, it’s too early to tell where that will lead us. One can only hope that it will constrain the FTC to stay within the parameters of rule of reason analysis. But a willful applicant of the rule of reason can spin the analysis to justify economically unsound decisions. This points to one area in which Josh will be missed greatly: keeping the FTC honest in its application of rule of reason analysis.
Of course, I may be self-servingly putting too much weight on the value of being educated in economics. I’ve often joked that on my faculty, using sophisticated economic arguments is one sure way to alienate colleagues. Maybe Josh found the same at the FTC.
And if my third suggested reason Josh’s resignation did not cause a stock market sell-off, that the FTC doesn’t have a big impact on the economy, is correct, then we can take a relaxed view of Josh’s departure. The FTC has lost a source of good judgment and economic expertise – but hey, it may not matter much at all.
With the FTC experience under his belt, Josh will hopefully be in the running for future high-level government appointments. The Supreme Court could certainly benefit from having him on board.