[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.]
In a 3-2 July 2021 vote, the Federal Trade Commission (FTC) rescinded the nuanced statement it had issued in 2015 concerning the scope of unfair methods of competition under Section 5 of the FTC Act. At the same time, the FTC rejected the applicability of the balancing test set forth in the rule of reason (and with it, several decades of case law, agency guidance, and legal and economic scholarship).
The July 2021 statement not only rejected these long-established guiding principles for Section 5 enforcement but left in its place nothing but regulatory fiat. In the statement the FTC issued Nov. 10, 2022 (again, by a divided 3-1 vote), the agency has now adopted this “just trust us” approach as a permanent operating principle.
The November 2022 statement purports to provide a standard under which the agency will identify unfair methods of competition under Section 5. As Commissioner Christine Wilson explains in her dissent, however, it clearly fails to do so. Rather, it delivers a collection of vaguely described principles and pejorative rhetoric that encompass loosely defined harms to competition, competitors, workers and a catch-all group of “other market participants.”
The methodology for identifying these harms is comparably vague. The agency not only again rejects the rule of reason but asserts the authority to take action against a variety of “non-quantifiable harms,” all of which can be addressed at the most “incipient” stages. Moreover, and perhaps most remarkably, the statement specifically rejects any form of “net efficiencies” or “numerical cost-benefit analysis” to guide its enforcement decisions or provide even a modicum of predictability to the business community.
The November 2022 statement amounts to regulatory fiat on overdrive, presented with a thin veneer of legality derived from a medley of dormant judicial decisions, incomplete characterizations of precedent, and truncated descriptions of legislative history. Under the agency’s dubious understanding of Section 5, Congress in 1914 elected to provide the FTC with the authority to declare any business practice “unfair” subject to no principle other than the agency’s subjective understanding of that term (and, apparently, never to be informed by “numerical cost-benefit analysis”).
Moreover, any enforcement action that targeted a purportedly “unfair” practice would then be adjudicated within the agency and appealable in the first instance to the very same commissioners who authorized the action. This institutional hall of mirrors would establish the FTC as the national “fairness” arbiter subject to virtually no constraining principles under which the exercise of such powers could ever be deemed to have exceeded its scope. The license for abuse is obvious and the departure from due process inherent.
The views reflected in the November 2022 statement would almost certainly lead to a legal dead-end. If the agency takes action under its idiosyncratic understanding of the scope of unfair methods of competition under Section 5, it would elicit a legal challenge that would likely lead to two possible outcomes, both being adverse to the agency.
First, it is likely that a judge would reject the agency’s understanding of Section 5, since it is irreconcilable with a well-developed body of case law requiring that the FTC (just like any other administrative agency) act under principles that provide businesses with, as described by the 2nd U.S. Circuit Court of Appeals, at least “an inkling as to what they can lawfully do rather than be left in a state of complete unpredictability.”
Any legally defensible interpretation of the scope of unfair methods of competition under Section 5 must take into account not only legislative intent at the time the FTC Act was enacted but more than a century’s worth of case law that courts have developed to govern the actions of administrative powers. Contrary to suggestions made in the November 2022 statement, neither the statute nor the relevant body of case law mandates unqualified deference by courts to the presumed wisdom of expert regulators.
Second, even if a court accepted the agency’s interpretation of the statute (or did so provisionally), there is a strong likelihood that it would then be compelled to strike down Section 5 as an unconstitutional delegation of lawmaking powers from the legislative to the executive branch. Given the concern that a majority of the Supreme Court has increasingly expressed over actions by regulatory agencies—including the FTC, specifically, in AMG Capital Management LLC v. FTC (2021)and now again in the pending case, Axon Enterprise Inc. v. FTC—that do not clearly fall within the legislatively specified scope of an agency’s authority (as in the AMG decision and other recent Court decisions concerning the U.S. Securities and Exchange Commission, the Occupational Safety and Health Administration, the U.S. Environmental Protection Agency, and the United States Patent and Trademark Office), this would seem to be a high-probability outcome.
In short: any enforcement action taken under the agency’s newly expanded understanding of Section 5 is unlikely to withstand judicial scrutiny, either as a matter of statutory construction or as a matter of constitutional principle. Given this legal forecast, the November 2022 statement could be viewed as mere theatrics that is unlikely to have a long legal life or much practical impact (although, until judicial intervention, it could impose significant costs on firms that must defend against agency-enforcement actions brought under the unilaterally expanded scope of Section 5).
Even if that were the case, however, the November 2022 statement and, in particular, its expanded understanding of the harms that the agency is purportedly empowered to target, is nonetheless significant because it should leave little doubt concerning the lack of any meaningful commitment by agency leadership to the FTC’s historical mission to preserve market competition. Rather, it has become increasingly clear that agency leadership seeks to deploy the powerful remedies of the FTC Act (and the rest of the antitrust-enforcement apparatus) to displace a market-driven economy governed by the free play of competitive forces with an administered economy in which regulators continuously intervene to reengineer economic outcomes on grounds of fairness to favored constituencies, rather than to preserve the competitive process.
Reengineering Section 5 of the FTC Act as a “shadow” antitrust statute that operates outside the rule of reason (or any other constraining objective principle) provides a strategic detour around the inconvenient evidentiary and other legal obstacles that the agency would struggle to overcome when seeking to achieve these policy objectives under the Sherman and Clayton Acts. This intentionally unstructured and inherently politicized approach to antitrust enforcement threatens not only the institutional preconditions for a market economy but ultimately the rule of law itself.