[This post is a contribution to Truth on the Market‘s continuing digital symposium “FTC Rulemaking on Unfair Methods of Competition.” You can find other posts at the symposium page here. Truth on the Market also invites academics, practitioners, and other antitrust/regulation commentators to send us 1,500-4,000 word responses for potential inclusion in the symposium.]
The current Federal Trade Commission (FTC) appears to have one overarching goal: find more ways to sue companies. The three Democratic commissioners (with the one Republican dissenting) issued a new policy statement earlier today that brings long-abandoned powers back into the FTC’s toolkit. Under Chair Lina Khan’s leadership, the FTC wants to bring challenges against “unfair methods of competition in or affecting commerce.” If that sounds extremely vague, that’s because it is.
For the past few decades, antitrust violations have fallen into two categories. Actions like price-fixing with competitors are assumed to be illegal. Other actions are only considered illegal if they are proven to sufficiently restrain trade. This latter approach is called the “rule of reason.”
The FTC now wants to return to a time when they could also challenge conduct it viewed as unfair. The policy statement says the commission will go after behavior that is “coercive, exploitative, collusive, abusive, deceptive, predatory, or involve the use of economic power of a similar nature.” Who could argue against stopping coercive behavior? The problem is what it means in practice for actual antitrust cases. No one knows: businesses or courts. It’s up to the whims of the FTC.
This is how antitrust used to be. In 1984, the 2nd U.S. Circuit Court of Appeals admonished the FTC and argued that “the Commission owes a duty to define the conditions under which conduct … would be unfair so that businesses will have an inkling as to what they can lawfully do rather than be left in a state of complete unpredictability.” Fairness, as the Clayton Act puts forward, proved unworkable as an antitrust standard.
The FTC’s movement to clarify what “unfair” means led to a 2015 policy statement, which the new statement supersedes. In the 2015 statement, the Obama-era FTC, with bipartisan support, issued new rules laying out what would qualify as unfair methods of competition. In doing so, they rolled “unfair methods” under the rule of reason. The consequences of the action matter.
The 2015 statement is part of a longer-run trend of incorporating more economic analysis into antitrust. For the past few decades, courts have followed in antitrust law is called the “consumer welfare standard.” The basic idea is that the goal of antitrust decisions should be to choose whatever outcome helps consumers, or as economists would put it, whatever increases “consumer welfare.” Once those are the terms of the dispute, economic analysis can help the courts sort out whether an action is anticompetitive.
Beyond helping to settle particular cases, these features of modern antitrust—like the consumer welfare standard and the rule of reason—give market participants some sense of what is illegal and what is not. That’s necessary for the rule of law to prevail and for markets to function.
The new FTC rules explicitly reject any appeal to consumer benefits or welfare. Efficiency gains from the action—labeled “pecuniary gains” to suggest they are merely about money—do not count as a defense. The FTC makes explicit that parties cannot justify behavior based on efficiencies or cost-benefit analysis.
Instead, as Commissioner Christine S. Wilson points out in her dissent, “the Policy Statement adopts an ‘I know it when I see it’ approach premised on a list of nefarious-sounding adjectives.” If the FTC claims some conduct is unfair, why worry about studying the consequences of the conduct?
The policy statement is an attempt to roll back the clock on antitrust and return to the incoherence of 1950s and 1960s antitrust. The FTC seeks to protect other companies, not competition or consumers. As Khan herself said, “for a lot of businesses it comes down to whether they’re going to be able to sink or swim.”
But President Joe Biden’s antitrust enforcers have struggled to win traditional antitrust cases. On mergers, for example, they have challenged a smaller percentage of mergers and were less successful than the FTC and DOJ under President Donald Trump.