[The ninth entry in our FTC UMC Rulemaking symposium comes from guest contributor Aaron Nielsen of BYU Law. It is the second post we are publishing today; see also this related post from Jonathan M. Barnett of USC Gould School of Law. Like that post, it adapts a paper that will appear as a chapter in the forthcoming book FTC’s Rulemaking Authority, which will be published by Concurrences later this year. You can find other posts at thesymposium 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.]
For obvious reasons, many scholars, lawyers, and policymakers are thinking hard about whether the Federal Trade Commission (FTC) has authority to promulgate substantive “unfair methods of competition” (UMC) regulations. I first approached this issue a couple of years ago when the FTC asked me to present on the agency’s rulemaking powers. For my presentation, I focused on 1973’s National Petroleum Refiners Association v. FTC and, in particular, whether the U.S. Court of Appeals for the D.C. Circuit correctly held that the FTC has authority to promulgate such rules. I ventured that relying on National Petroleum Refiners would present “litigation risk” for the FTC because the method of statutory interpretation used by the D.C. Circuit is out of step with how courts read statutes today. Richard Pierce, who presented at the same event, was even more blunt:
Let me just express my complete agreement with Aaron’s analysis of the extraordinary fragility of the FTC position that National Petroleum Refiners is going to protect them. I teach National Petroleum Refiners every year. And I teach it as an object lesson in what no court, modern court, would ever do today. The reasoning is, by today’s standards, preposterous. … [T]he interpretive method that was used in that case was fairly commonly used on the DC Circuit at that time. There is no justice today—not just Gorsuch, but Kagan, Breyer—there is no justice today that would [use that method].
That was a fun academic discussion—with emphasis on the word academic. After all, for decades, this issue has only been an academic question because the FTC has not attempted to use such authority. That academic question, however, may soon become a concrete dispute.
The Federal Trade Commission (FTC) is no one’s idea of a serious rulemaker. To the contrary, the FTC is in many respects a law enforcement agency that operates through litigation and consent decrees. There are understandable reasons for this absence of FTC rulemaking. Not only has Congress imposed heightened procedural obligations on the FTC’s ability to promulgate consumer protection rules, but also it is far from clear that the FTC even has statutory authority to promulgate substantive rules relating to unfair methods of competition (UMC). Yet things may be changing. It appears that the FTC is preparing to begin using rulemaking more aggressively, including for substantive UMC regulations. The FTC’s ability to use rulemaking this way will undoubtedly prompt sharp and important legal challenges.
This short essay, however, considers the question of FTC rulemaking from a different angle: What if the FTC has broad rulemaking authority? And what if the FTC begins to use that authority for controversial policies? Traditionally, the FTC operates in a case-by-case fashion that attempts to apply familiar principles to the facts of individual matters. Should the FTC begin making broader policy choices through rulemaking, however, it should be prepared for at least three unintended consequences: (i) more ossification, including more judicial challenges and perhaps White House oversight; (ii) more zigzagging policy as new FTC leadership, in response to changes in presidential control, moves to undo what the agency has just done; and (iii) to more often be the target of what has been called “administrative law as blood sport,” by which political actors make it more difficult for the agency to function, for example by delaying the confirmation process. The upshot would be an agency that could in theory (and sometimes no doubt in fact) regulate more broadly than the FTC does now, but also one with a different character. In short, the more the FTC becomes a serious rulemaker, the more the FTC will change as an institution.
Here, I will summarize some of the thoughts from my essay. Please read the full essay, however, if you’re looking for citations and a more complete explanation.
At the outset, my essay is not an attack on rulemaking. There are good reasons to prefer agencies to make policy through rulemaking rather than, say, case-by-case adjudication or threats. In fact, Kristin Hickman and I have written an entire article explaining why rulemaking (generally) should be favored over adjudication. That said, I am concerned about the idea that the FTC has substantive rulemaking authority to promulgate broad UMC rules under Section 5 of the FTC Act. Rulemaking has many advantages, but it does not follow that rulemaking under this very open-ended statute makes sense, especially if the goal is broad policy change. Indeed, if the FTC were to use rulemaking authority for small issues, presumably some of the concerns I sketch out would not apply (though the legal question, of course, still would).
As I explain in my essay, when agencies attempt to use rulemaking for significant policies—which, not by coincidence, disproportionately tend to be controversial policies—at least three unintended consequences may result: ossification, zigzagging policy, and blood-sport tactics.
First, ossification. For decades, many administrative law scholars have lamented how ossified the rulemaking process has become. Notice-and-comment rulemaking may not look all that difficult. The process has become challenging, at least for the most significant rules. (There is an empirical dispute about how ossified the process is, but part of that debate may be explained by the nature of the rules at issue; agencies perhaps can promulgate lower-profile rules without much trouble, while struggling with the more significant ones.) Agencies looking to make important policy changes through notice-and-comment rulemaking, for example, often receive mountains of comments from the public. Indeed, agencies may receive millions of comments. Because agencies have to respond to material comments, rules that prompt that volume of commentary aren’t so easy to do. Likewise, the most consequential rules almost invariably prompt litigation, and as part of so-called “hard look” review, the agency will have to persuade a court that it has considered the important aspects of the problem. Preparing for that sort of review can require a great deal of upfront work. And although its domain does not extend to independent agencies, the Office of Information and Regulatory Affairs (OIRA) also requires agencies to do a great deal of analysis before promulgating the most significant rules.
If the FTC begins promulgating significant rules, it should be prepared for an ossified process that requires reallocating resources within the agency and engaging in more “admin law” litigation. Because rulemaking can be labor intensive, moreover, the FTC may not be able to pursue as many policies as some no doubt wish. Furthermore, the U.S. Justice Department has concluded that the White House has the authority to subject independent agencies to the OIRA process. If the FTC begins promulgating significant rules—especially regulations of the sort that may be improved by inter-agency coordination and external evaluation, two hallmarks of the OIRA process—the White House may decide that the time has come to put the FTC within OIRA’s tent. Such developments would change how the FTC functions.
Second, zigzagging policy. It turns out that when agencies use regulatory power for significant policies, agencies sometimes find themselves using that same power to undo those policies when control of the White House shifts. Elsewhere, I’ve written about the Federal Communications Commission and so-called “net neutrality” rules. For decades, the FCC has flip-flopped on this significant issue; when Republicans control the White House, the FCC does one thing, but when Democrats take over, it does something else. Flip-flopping, however, is not limited to the FCC. As Pierce has put it, “[t]he same analysis applies in each of the hundreds of contexts in which Democrats and Republicans have opposing and uncompromising preferences with respect to policy issues. …” Zigzagging policy is bad for business because it makes it harder to invest, and for that same reason, is bad for consumers who do not gain the benefits of foregone investment. It is also bad for regulators, who must spend time and effort to undo the agency’s own prior actions. To be sure, agencies don’t always flip-flop; indeed, the ossification of the rulemaking process may limit it, at the margins. But especially for the most consequential policies, zigzagging sometimes happens.
Accordingly, if the FTC begins promulgating significant policies through rulemaking, it should expect some zigzagging policy when the White House changes hands. As my essay explains:
In this current age of polarization, regulatory efforts to address divisive issues may not work well because what an agency does under one administration can be undone in the next administration. Thus, the end result may be policy that exists under some administrations but not others. Indeed, the FTC’s recent slew of party-line votes suggests that if the FTC begins using rulemaking for controversial policies, the FTC will look to undo those rules when the political balance flips. Of course, not all FTC rules will vacillate—there are not enough resources to undo everything, especially as agencies confront new issues. But if the FTC becomes a serious rulemaker, some zigzagging should occur.
Finally, consider “administrative law as blood sport”—an evocative phrase that comes from Thomas McGarity. The idea is that agencies engaged in rulemaking are increasingly subject to political opposition across several dimensions, including “strategies aimed at indirectly disrupting the implementation of regulatory programs by blocking Senate confirmation of new agency leaders, cutting off promised funding for agencies, introducing rifle-shot riders aimed at undoing ongoing agency action, and subjecting agency heads to contentious oversight hearings.” In other words, an opponent of a proposed regulation may try to stop it through the rulemaking process (for example, by filing comment and then going to court), but may also try to stop it outside of the rulemaking process through political means.
As my essay explains, if the FTC begins using rulemaking for controversial policies, blood-sport tactics presumably will follow. Similarly, the FTC should also expect litigation of a more fundamental character. The U.S. Supreme Court is increasingly wary of independent agencies; to the extent that the FTC begins making significant policy choices without presidential control, the likelihood that the Supreme Court will say “enough” increases.
In short, if the FTC engages in significant rulemaking, its character will change. No doubt, some proponents of FTC rulemaking would accept that cost, but in assessing FTC rulemaking, it is important to remember unintended consequences, too.
[The ideas in this post from Truth on the Market regular Jonathan M. Barnett of USC Gould School of Law—the eighth entry in our FTC UMC Rulemaking symposium—are developed in greater detail in “Regulatory Rents: An Agency-Cost Analysis of the FTC Rulemaking Initiative,” a chapter in the forthcoming book FTC’s Rulemaking Authority, which will be published by Concurrences later this year. This is the first of two posts we are publishing today; see also this related post from Aaron Nielsen of BYU Law.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 December 2021, the Federal Trade Commission (FTC) released its statement of regulatory priorities for 2022, which describes its intention to expand the agency’s rulemaking activities to target “unfair methods of competition” (UMC) under Section 5 of the Federal Trade Commission Act (FTC Act), in addition to (and in some cases, presumably in place of) the conventional mechanism of case-by-case adjudication. Agency leadership (meaning, the FTC chair and the majority commissioners) largely characterizes the rulemaking initiative as a logistical improvement to enable the agency to more efficiently execute its statutory commitment to preserve competitive markets. Unburdened by the costs and delays inherent to the adjudicative process (which, in the antitrust context, typically requires evidence of actual or likely competitive harm), the agency will be able to take expedited action against UMCs based on rules preemptively set forth by the agency.
This shift from enforcement by adjudication to enforcement by rulemaking is far from a mechanical adjustment. Rather, it is best understood as part of an initiative to make fundamental changes to the substance and methodology of antitrust enforcement. Substantively, the initiative appears to be part of a broader effort to alter the goals of antitrust enforcement so that it promotes what are deemed to be “equitable” market outcomes, rather than preserving the competitive process through which outcomes are determined by market forces. Methodologically, the initiative appears to be part of a broader effort to displace rule-of-reason treatment with the practical equivalent of per se prohibitions in a wide range of putatively “unfair” practices. Both steps would be inconsistent with the agency’s statutory mission to safeguard the competitive process or a meaningful commitment to a market-driven economy and the rule of law.
Abandoning Competitive Markets
Little steps sometimes portend bigger changes.
In July 2021, FTC leadership removed the following words from the mission description of the agency’s Bureau of Competition: “The Bureau’s work aims to preserve the free market system and assure the unfettered operation of the forces of supply and demand.” This omitted statement had tracked what remains the standard characterization by federal courts and agency guidelines of the core objective of the antitrust laws. Following this characterization, the antitrust laws seek to preserve the “rules of the game” for market competition, while remaining indifferent to the outcomes of such competition in any particular market. It is the competitive process, not the fortunes of particular competitors, that matters.
Other statements by FTC leadership suggest that they seek to abandon this outcome-agnostic perspective. A memo from the FTC chair to staff, distributed in September 2021, states that the agency’s actions “shape the distribution of power and opportunity” and encourages staff “to take a holistic approach to identifying harms, recognizing that antitrust and consumer protection violations harm workers and independent businesses as well as consumers.” In a draft strategic plan distributed by FTC leadership in October 2021, the agency described its mission as promoting “fair competition” for the “benefit of the public.” In contrast, the agency’s previously released strategic plan had described the agency’s mission as promoting “competition” for the benefit of consumers, consistent with the case law’s commitment to protecting consumer welfare, dating at least to the Supreme Court’s 1979 decision in Reiter v. Sonotone Corp. et al.The change in language suggests that the agency’s objectives encompass a broad range of stakeholders and policies (including distributive objectives) that extends beyond, and could conflict with, its commitment to preserve the integrity of the competitive process.
These little steps are part of a broader package of “big steps” undertaken during 2021 by FTC leadership.
In July 2021, the agency abandoned decades of federal case law and agency guidelines by rejecting the consumer-welfare standard for purposes of enforcement of Section 5 of the FTC Act against UMCs. Relatedly, FTC leadership asserted in the same statement that Congress had delegated to the agency authority under Section 5 “to determine which practices fell into the category of ‘unfair methods of competition’”. Remarkably, the agency’s claimed ambit of prosecutorial discretion to identify “unfair” practices is apparently only limited by a commitment to exercise such power “responsibly.”
This largely unbounded redefinition of the scope of Section 5 divorces the FTC’s enforcement authority from the concepts and methods as embodied in decades of federal case law and agency guidelines interpreting the Sherman and Clayton Acts. Those concepts and methods are in turn anchored in the consumer-welfare principle, which ensures that regulatory and judicial actions promote the public interest in the competitive process, rather than the private interests of any particular competitor or other policy goals not contemplated by the antitrust laws. Effectively, agency leadership has unilaterally converted Section 5 into an empty vessel into which enforcers may insert a fluid range of business practices that are deemed by fiat to pose a risk to “fair” competition.
Abandoning the Rule of Reason
In the same statement in which FTC leadership rejected the consumer-welfare principle for purposes of Section 5 enforcement, it rejected the relevance of the rule of reason for these same purposes. In that statement, agency leadership castigated the rule of reason as a standard that “leads to soaring enforcement costs” and asserted that it is incompatible with Section 5 of the FTC Act. In March 2021 remarks delivered to the House Judiciary Committee’s Antitrust Subcommittee, Commissioner Rebecca Kelly Slaughter similarly lamented “[t]he effect of cramped case law,” specifically viewing as problematic the fact that “[u]nder current Section 5 jurisprudence, courts have to consider conduct under the ‘rule of reason,’ a fact-intensive investigation into whether the anticompetitive effects of the conduct outweigh the procompetitive justifications.” Hence, it appears that the FTC, in exercising its purported rulemaking powers against UMCs under Section 5, does not intend to undertake the balancing of competitive harms and gains that is the signature element of rule-of-reason analysis. Tellingly, the agency’s draft strategic plan, released in October 2021, omits language that it would execute its enforcement mission “without unduly burdening legitimate business activity” (language that had appeared in the previously released strategic plan)—again, suggesting that it plans to take littleaccount of the offsetting competitive gains attributable to a particular business practice.
This change in methodology has two profound and concerning implications.
First, it means that any “unfair” practice targeted by the agency under Section 5 is effectively subject to a per se prohibition—that is, the agency can prevail merely by identifying that the defendant engaged in a particular practice, rather than having to show competitive harm. Note that this would represent a significant step beyond the per se rule that Sherman Act case law applies to certain cases of horizontal collusion. In those cases, a per se rule has been adopted because economic analysis indicates that these types of practices in general pose such a high risk of net anticompetitive harm that a rule-of-reason inquiry is likely to fail a cost-benefit test almost all of the time. By contrast, there is no indication that FTC leadership plans to confine its rulemaking activities to practices that systematically pose an especially high risk of anticompetitive harm, in part because it is not clear that agency leadership still views harm to the competitive process as being the determinative criterion in antitrust analysis.
Second, without further clarification from agency leadership, this means that the agency appears to place substantially reduced weight on the possibility of “false positive” error costs. This would be a dramatic departure from the conventional approach to error costs as reflected in federal antitrust case law. Antitrust scholars have long argued, and many courts have adopted the view, that “false positive” costs should be weighted more heavily relative to “false negative” error costs, principally on the ground that, as Judge Richard Posner once put it, “a cartel . . . carries within it the seeds of its own destruction.” To be clear, this weighted approach should still meaningfully assess the false-negative error costs that arise from mistaken failures to intervene. By contrast, the agency’s blanket rejection of the rule of reason in all circumstances for Section 5 purposes raises doubt as to whether it would assign any material weight to false-positive error costs in exercising its purported rulemaking power under Section 5 against UMCs. Consistent with this possibility, the agency’s July 2021 statement—which rejected the rule of reason specifically—adopted the view that Section 5 enforcement should target business practices in their “incipiency,” even absent evidence of a “likely” anticompetitive effect.
While there may be reasonable arguments in favor of an equal weighting of false-positive and false-negative error costs (on the grounds that markets are sometimes slow to correct anticompetitive conduct, as compared to the speed with which courts correct false-positive interventions), it is hard to fathom a reasonable policy argument in favor of placing no material weight on the former cost category. Under conditions of uncertainty, the net economic effect of any particular enforcement action, or failure to take such action, gives rise to a mix of probability-adjusted false-positive and false-negative error costs. Hence, any sound policy framework seeks to minimize the sum of those costs. Moreover, the wholesale rejection of a balancing analysis overlooks extensive scholarship identifying cases in which federal courts, especially during the period prior to the Supreme Court’s landmark 1977 decision in Continental TV Inc. v. GTE Sylvania Inc., applied per se rules that erroneously targeted business practices that were almost certainly generating net-positive competitive gains. Any such mistaken intervention counterproductively penalizes the efforts and ingenuity of the most efficient firms, which then harms consumers, who are compelled to suffer higher prices, lower quality, or fewer innovations than would otherwise have been the case.
The dismissal of efficiency considerations and false-positive error costs is difficult to reconcile with an economically informed approach that seeks to take enforcement actions only where there is a high likelihood of improving economic welfare based on available evidence. On this point, it is worth quoting Oliver Williamson’s well-known critique of 1960s-era antitrust: “[I]f neither the courts nor the enforcement agencies are sensitive to these [efficiency] considerations, the system fails to meet a basic test of economic rationality. And without this the whole enforcement system lacks defensible standards and becomes suspect.”
Abandoning the Rule of Law
In a liberal democratic system of government, the market relies on the state’s commitment to set forth governing laws with adequate notice and specificity, and then to enforce those laws in a manner that is reasonably amenable to judicial challenge in case of prosecutorial error or malfeasance. Without that commitment, investors are exposed to arbitrary enforcement and would be reluctant to place capital at stake. In light of the agency’s concurrent rejection of the consumer-welfare and rule-of-reason principles, any future attempt by the FTC to exercise its purported Section 5 rulemaking powers against UMCs under what currently appears to be a regime of largely unbounded regulatory discretion is likely to violate these elementary conditions for a rule-of-law jurisdiction.
Having dismissed decades of learning and precedent embodied in federal case law and agency guidelines, FTC leadership has declined to adopt any substitute guidelines to govern its actions under Section 5 and, instead, has stated (in its July 2021 statement rejecting the consumer-welfare principle) that there are few bounds on its authority to specify and target practices that it deems to be “unfair.” This blunt approach contrasts sharply with the measured approach reflected in existing agency guidelines and federal case law, which seek to delineate reasonably objective standards to govern enforcers’ and courts’ decision making when evaluating the competitive merits of a particular business practice.
This approach can be observed, even if imperfectly, in the application of the Herfindahl-Hirschman Index (HHI) metric in the merger-review process and the use of “safety zones” (defined principally by reference to market-share thresholds) in the agencies’ Antitrust Guidelines for the Licensing of Intellectual Property, Horizontal Merger Guidelines, and Antitrust Guidelines for Collaborations Among Competitors. This nuanced and evidence-based approach can also be observed in a decision such as California Dental Association v. FTC(1999), which provides a framework for calibrating the intensity of a rule-of-reason inquiry based on a preliminary assessment of the likely net competitive effect of a particular practice. In making these efforts to develop reasonably objective thresholds for triggering closer scrutiny, regulators and courts have sought to reconcile the open-ended language of the offenses described in the antitrust statutes—“restraint of trade” (Sherman Act Section 1) or “monopolization” (Sherman Act Section 2)—with a meaningful commitment to providing the market with adequate notice of the inherently fuzzy boundary between competitive and anti-competitive practices in most cases (and especially, in cases involving single-firm conduct that is most likely to be targeted by the agency under its Section 5 authority).
It does not appear that agency leadership intends to adopt this calibrated approach in implementing its rulemaking initiative, in light of its largely unbounded understanding of its Section 5 enforcement authority and wholesale rejection of the rule-of-reason methodology. If Section 5 is understood to encompass a broad and fluid set of social goals, including distributive objectives that can conflict with a commitment to the competitive process, then there is no analytical reference point by which markets can reliably assess the likelihood of antitrust liability and plan transactions accordingly. If enforcement under Section 5, including exercise of any purported rulemaking powers, does not require the agency to consider offsetting efficiencies attributable to any particular practice, then a chilling effect on everyday business activity and, more broadly, economic growth can easily ensue. In particular, firms may abstain from practices that may have mostly or even entirely procompetitive effects simply because there is some material likelihood that any such practice will be subject to investigation and enforcement under the agency’s understanding of its Section 5 authority and its adoption of a per se approach for which even strong evidence of predominantly procompetitive effects would be moot.
From Free Markets to Administered Markets
The FTC’s proposed rulemaking initiative, when placed within the context of other fundamental changes in substance and methodology adopted by agency leadership, is not easily reconciled with a market-driven economy in which resources are principally directed by the competitive forces of supply and demand. FTC leadership has reserved for the agency discretion to deem a business practice as “unfair,” while defining fairness by reference to an agglomeration of loosely described policy goals that include—but go beyond, and in some cases may conflict with—the agency’s commitment to preserve market competition. Concurrently, FTC leadership has rejected the rule-of-reason balancing approach and, by implication, may place no material weight on (or even fail to consider entirely) the efficiencies attributable to a particular business practice.
In the aggregate, any rulemaking activity undertaken within this unstructured framework would make it challenging for firms and investors to assess whether any particular action is likely to trigger agency scrutiny. Faced with this predicament, firms could only substantially reduce exposure to antitrust liability by seeking various forms of preclearance with FTC staff, who would in turn be led to issue supplemental guidance, rules, and regulations to handle the high volume of firm inquiries. Contrary to the advertised advantages of enforcement by rulemaking, this unavoidable cycle of rule interpretation and adjustment would likely increase substantially aggregate transaction and compliance costs as compared to enforcement by adjudication. While enforcement by adjudication occurs only periodically and impacts a limited number of firms, enforcement by rulemaking is a continuous activity that impacts all firms. The ultimate result: the free play of the forces of supply and demand would be replaced by a continuously regulated environment where market outcomes are constantly being reviewed through the administrative process, rather than being worked out through the competitive process.
This is a state of affairs substantially removed from the “free market system” to which the FTC’s Bureau of Competition had once been committed. Of course, that may be exactly what current agency leadership has in mind.
[Today’s second guest post, the sixth in our FTC UMC Rulemaking symposium, comes from Andrew K. Magloughlin and Randolph J. May of the Free State Foundation. See also the related post we published today from Richard J. Pierce Jr. of the George Washington University Law School. 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 Federal Trade Commission’s (FTC) current leadership appears likely to issue substantive rules concerning “unfair methods of competition” (UMC) at some point. FTC Chair Lina Khan, in an article with former FTC Commissioner Rohit Chopra, argued that the commission has the authority to issue UMC rules pursuant to the Federal Trade Commission Act based on Petroleum Refiners Association v. FTC and a subsequently enacted provision in 1975. But Petroleum Refiners is a nearly 50-year-old, untested, and heavily criticized opinion that predates the major questions doctrine and widespread adoption of textualism in the courts. Application of the major questions doctrine and modern, textualist methods of statutory interpretation almost certainly would lead to a determination that the commission lacks UMC rulemaking authority.
Our submission to this Truth on the Market symposium argues that today’s Supreme Court would find that the FTC lacks authority to issue UMC rules under the major questions doctrine. Part I reviews the provisions of the FTC Act relevant to UMC rulemaking and scholarly commentary on the issue. Part II argues that, applying the major questions doctrine as the Court has done in recent opinions such as NFIB v. OSHA, the Supreme Court would find that the FTC lacks UMC rulemaking authority because Congress could not have intended such a cryptic delegation to authorize sweeping rules of such economic significance.
Text, Structure, and Interpretation of the FTC Act
The FTC Act establishes the FTC and its authority. Section 5 of the FTC Act declares unlawful “unfair methods of competition in or affecting commerce” and empowers the commission to stop them. The law provides specific procedures for an administrative adjudicatory process that the commission “shall” use to stop unfair methods of competition when it identifies them and believes stopping them is in the public interest. The remainder of Section 5 involves provisions related to available remedies and jurisdiction for appeal of final decisions from FTC adjudications. This is the extent of explicit authority the FTC Act contains related to UMC.
In the next portion of the same subchapter, Section 6(g) states: “The Commission shall also have power . . . to make rules and regulations for the purpose of carrying out the provisions of this subchapter.” In 1973’s Petroleum Refiners Association v. FTC, the U.S. Court of Appeals for the D.C. Circuit interpreted this provision to grant the commission substantive rulemaking authority to implement Section 5. While Petroleum Refiners involved rules regarding “unfair or deceptive acts or practices” under Section 5, rather than UMC rules, its reasoning, if still valid today, seemingly could authorize the commission to issue UMC rules. But the FTC has never issued UMC rules to date.
Congress responded to Petroleum Refiners by enacting laws in 1975 and 1980 that imposed significant procedural burdens on the FTC’s rulemaking process for unfair or deceptive acts. These burdens, known as the “Magnuson-Moss procedures,” are far more exacting than the Administrative Procedure Act’s notice-and-comment rulemaking process and, since adopted, they have had the effect of stopping the FTC from issuing rules for governing unfair or deceptive acts.
FTC Chair Khan believes that, in adopting the Magnuson-Moss procedures, Congress has implicitly codified Petroleum Refiners‘ holding that the FTC has authority to issue UMC rules. She argues that legislative history for the 1975 amendments show that Congress rejected a version of the bill that applied Magnuson-Moss procedures to all FTC rulemaking, rather than just unfair or deceptive acts rulemaking. And the enacted statute, as well as the conference report for the adopted law, stated that Magnuson-Moss procedures “shall not affect any authority of the Commission to prescribe rules (including interpretive rules), and general statements of policy, with respect to unfair methods of competition in or affecting commerce.” Khan believes that this provision implicitly recognized that, in accord with the holding of Petroleum Refiners, that Section 6(g) grants the commission authority to issue substantive UMC rules. Moreover, in her view, if the FTC adopted her position as its official interpretation of the statute, it would be entitled to Chevron deference.
Other commentators disagree persuasively. Richard Pierce notes that the provision Khan points to as implicitly adopting Petroleum Refiners just as easily could be interpreted to clarify that Magnuson-Moss procedures do not apply to interpretative rules and policy statements for UMC adjudications. This argument, though, does not completely eliminate ambiguity, because the statute used the non-exclusive word including in the phrase “rules (including interpretative rules) and general statements of policy” rather than expressly limiting the exemption to those two types of rules.
But Pierce, more forcefully, argues that Khan’s interpretation depends on the Petroleum Refiners interpretation of the FTC Act remaining good law, and this is doubtful. Petroleum Refiners employed a non-textualist method of statutory interpretation that courts do not apply today. That case held that an ambiguous grant “to make rules and regulations for the purpose of carrying out the provisions of this subchapter” should be construed to favor the agency’s interpretation of its authority under that provision. This holding appears to conflict with the Supreme Court’s more searching review for identifying congressional delegations to agencies to issue substantive rules in Untied States v. Mead Corp., a case decided more than two decades after Petroleum Refiners. Mead Corp. explained that agencies are entitled to Chevron deference for their application of their authorizing statutes when “Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”
The D.C. Circuit itself may have already implicitly overruled Petroleum Refiners while applying Mead Corp. in more recent cases. In American Library Association v. FCC, the D.C. Circuit adopted a far more skeptical reading of a similar general grant of authority—the Federal Communications Commission’s (FCC) general grant in Title I of the Communications Act, which reads: “The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.” The FCC had issued its Broadcast Flag Order relying solely on its general grant of authority in Title I.
But the D.C. Circuit, applying Mead Corp., held that the FCC could only issue substantive rules pursuant to its general grant of authority when: “(1) the Commission’s general jurisdictional grant under Title I covers the subject of the regulations and (2) the regulations are reasonably ancillary to the Commission’s effective performance of its statutorily mandated responsibilities.” In other words, only when the substantive rules reasonably relate to explicit authority contained in the Communications Act. Petroleum Refiners is inconsistent with this subsequent holding of the D.C. Circuit.
Further, William Kovacic—a former FTC chair, commissioner, and general counsel—explains that the unanimous Supreme Court opinion in AMG Capital Management LLC v. FTC implicitly refutes Petroleum Refiners. In AMG, the Court rejected the FTC’s interpretation of Section 13(b) of the FTC Act, which states that the commission “may bring suit in a district court of the United States to enjoin” violations of the law that the FTC enforces. The FTC argued that Section 13(b) empowered it to seek equitable monetary relief, despite the provision’s circumscribed focus on injunctions. But the court explained that this focus on injunctions, as well as the structure of the act as a whole, counseled otherwise. And unlike Section 13(b), other FTC Act provisions expressly empower the commission to seek “other forms of relief” in addition to injunctions, demonstrating that Congress would have explicitly authorized equitable monetary relief if it intended Section 13(b) to provide it.
As Kovacic explains, the AMG opinion was “not so generous” to the FTC’s interpretation of the FTC Act, refuting the deferential approach of Petroleum Refiners. It seems unlikely, given the above criticisms of Petroleum Refiners, that the Court would be any more deferential to an attempt by Khan or a future FTC chair to issue substantive UMC rules. This is especially true because, as explained below, the major questions doctrine likely would resolve the question of the FTC’s UMC authority against the commission.
Today’s Major Questions Doctrine Most Likely Would Slam the Door Shut on FTC UMC Rulemaking
Under current jurisprudence, the Supreme Court’s application of the major questions doctrine most likely would slam the door shut on the FTC’s supposed authority to issue UMC rules. The major questions doctrine is a canon of statutory interpretation that the Court developed as an exception or limitation to application of Chevron deference, even if the Court appears to now apply it independently of Chevron. It applies to judicial review of agency interpretations of statutory authority to issue substantive rules. Put simply, the major questions doctrine is a linguistic canon that requires “Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance,” or put more colloquially, that prevents Congress from “hiding elephants in mouseholes.”
The underlying purpose of the major questions doctrine is the protection of separation of powers. However, the context in which it protects separation of powers is not entirely clear because the Court’s views appear to be, at present, unsettled. The “clear statement” version of the major questions doctrine protects separation of powers by preventing the executive branch from relying on strained interpretations of delegated statutory authority. But multiple Supreme Court justices have at times argued for a substantive major questions doctrine—one that would bar certain “major” delegations altogether, regardless of the clarity of the congressional delegation. For our purposes, in this piece, we apply the major questions doctrine as a clear-statement rule, which at present is the controlling law.
There are several factors that the Court has identified as warranting application of the major questions doctrine. The two most common factors can be thought of as (1) claims of sweeping authority, or massive elephants, enabled through (2) cryptic statutory texts, or tiny mouseholes. For example, in Alabama Association of Realtors v. HHS, the Supreme Court applied the major questions doctrine, in part, because the “sheer scope” of the rule in that case was dramatic—affecting 80% of the country’s population and superseding a traditional area of state regulation. In other words, a massive elephant. An example of a tiny mousehole is, in NFIB v. OSHA, the Occupational Safety and Health Administration’s (OSHA) reliance on statutory authority for “workplace safety” regulations to require broad public-health mandates like compulsory vaccination, which affects people far beyond the confines of the workplace.
Other relevant factors include assertions of authority despite long-held contrary indications from Congress and the agency itself, or a history of failure to assert similar authority. For example, in Brown & Williamson Tobacco Corp. v. FDA, the Court found it relevant that the Food and Drug Administration (FDA) asserted regulatory authority over tobacco products, despite Congress’ creation of a distinct regulatory structure for tobacco outside the purview of the FDA and decades of assertions by Congress and FDA leadership that the FDA lacked authority to regulate tobacco. In NFIB, the Court noted that OSHA’s vaccine mandate was its first sweeping public-health measure under the Occupational Health and Safety Act in its more than 50 years of existence.
Applying the major questions doctrine to the FTC’s supposed UMC rulemaking authority would mean that the commission almost certainly lacks such authority. First, many of the relevant factors for the major questions doctrine are present. The scope of potential UMC rulemaking is sweeping, covering most of our nation’s economy—a big elephant. And the provision supposedly enabling the commission’s rulemaking authority—Section 6(g), which contains general language, rather than an explicit delegation of authority to the commission—amounts to a tiny mousehole. The FTC Act provision Khan points to as implicitly codifying Petroleum Refiners is even less specific; it simply asserts that Section 18a of the FTC Act will have no effect on the FTC’s UMC rulemaking authority. But if the commission never had such rulemaking authority in the first place under Section 6(g), then this provision is irrelevant and provides no implicit codification, let alone the clear statement required by the major questions doctrine. Thus, an even tinier mousehole.
Analysis of the statutory text and legislative history Khan identifies shows precisely how tiny that mousehole is. As mentioned above, Khan believes that Congress’ rejection of a draft bill that applied Magnuson-Moss procedures to UMC rulemaking proves that Congress implicitly endorsed Petroleum Refiners. Not so. Instead, by clarifying that Section 18a “shall not affect any authority of the Commission to prescribe rules … with respect to unfair methods of competition in or affecting commerce,” Congress likely was rejectingPetroleum Refiners as applied to UMC rulemaking. Congress did indeed codify the Petroleum Refiners holding that the FTC has authority to issue rules for unfair or deceptive acts or practices by subjecting them to the rigorous Magnuson-Moss procedures. But by stating that those procedures did not affect the FTC’s authority for UMC rules, any authority for the commission to issue such rules depends solely on interpretation of Section 6(g)—or the continued vitality of Petroleum Refiners. A provision that says nothing about the issue at hand is among the tiniest imaginable mouseholes.
Further, the FTC, since its creation in 1914, has failed to issue any UMC rulemakings over the past 108 years. As Richard Pierce explains, between 1914 and 1962, when the unfair or deceptive practice rules under review in Petroleum Refiners were first introduced, “the FTC, Congress, courts, and scholars were unanimous in their belief that the FTC did not have the power to issue legislative rules.” An assertion claiming such authority to issue rules now would be a bureaucratic power-grabbing bridge too far, if not to nowhere.
Should the occasion arise, for all the reasons discussed, we predict the Supreme Court will slam the door shut on FTC UMC rulemaking authority.
 It is also possible that any UMC rules issued would be determined to violate the nondelegation doctrine, aside from whether reviewing courts considered the major questions doctrine part and parcel of the nondelegation doctrine. In this essay, we are focusing on current major questions doctrine jurisprudence that often is not tied, at least explicitly, to traditional nondelegation doctrine analysis.
 See, for example, Justice Neil Gorsuch’s dissent in Gundy v. United States, joined by Chief Justice John Roberts and Justice Clarence Thomas, which argued that the major questions doctrine should step in to replace the Court’s failure to enforce the nondelegation doctrine.
[Continuing our FTC UMC Rulemaking symposium, today’s first guest post is from Richard J. Pierce Jr., the Lyle T. Alverson Professor of Law at George Washington University Law School. We are also publishing a related post today from Andrew K. Magloughlin and Randolph J. May of the Free State Foundation. 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.]
FTC Rulemaking Power
In 2021, President Joe Biden appointed a prolific young scholar, Lina Khan, to chair the Federal Trade Commission (FTC). Khan strongly dislikes almost every element of antitrust law. She has stated her intention to use notice and comment rulemaking to change antitrust law in many ways. She was unable to begin this process for almost a year because the FTC was evenly divided between Democratic and Republican appointees, and she has not been able to elicit any support for her agenda from the Republican members. She will finally get the majority she needs to act in the next few days, as the U.S. Senate appears set to confirm Alvaro Bedoya to the fifth spot on the commission.
Chair Khan has argued that the FTC has the power to use notice-and-comment rulemaking to define the term “unfair methods of competition” as that term is used in Section 5 of the Federal Trade Commission Act. Section 5 authorizes the FTC to define and to prohibit both “unfair acts” and “unfair methods of competition.” For more than 50 years after the 1914 enactment of the statute, the FTC, Congress, courts, and scholars interpreted it to empower the FTC to use adjudication to implement Section 5, but not to use rulemaking for that purpose.
In 1973, the U.S. Court of Appeals for the D.C. Circuit held that the FTC has the power to use notice-and-comment rulemaking to implement Section 5. Congress responded by amending the statute in 1975 and 1980 to add many time-consuming and burdensome procedures to the notice-and-comment process. Those added procedures had the effect of making the rulemaking process so long that the FTC gave up on its attempts to use rulemaking to implement Section 5.
Khan claims that the FTC has the power to use notice-and-comment rulemaking to define “unfair methods of competition,” even though it must use the extremely burdensome procedures that Congress added in 1975 and 1980 to define “unfair acts.” Her claim is based on a combination of her belief that the current U.S. Supreme Court would uphold the 1973 D.C. Circuit decision that held that the FTC has the power to use notice-and-comment rulemaking to implement Section 5 and her belief that a peculiarly worded provision of the 1975 amendment to the FTC Act allows the FTC to use notice-and-comment rulemaking to define “unfair methods of competition,” even though it requires the FTC to use the extremely burdensome procedure to issue rules that define “unfair acts.” The FTC has not attempted to use notice-and-comment rulemaking to define “unfair methods of competition” since Congress amended the statute in 1975.
I am skeptical of Khan’s argument. I doubt that the Supreme Court would uphold the 1973 D.C. Circuit opinion, because the D.C. Circuit used a method of statutory interpretation that no modern court uses and that is inconsistent with the methods of statutory interpretation that the Supreme Court uses today. I also doubt that the Supreme Court would interpret the 1975 statutory amendment to distinguish between “unfair acts” and “unfair methods of competition” for purposes of the procedures that the FTC is required to use to issue rules to implement Section 5.
Even if the FTC has the power to use notice-and-comment rulemaking to define “unfair methods of competition,” I am confident that the Supreme Court would not uphold an exercise of that power that has the effect of making a significant change in antitrust law. That would be a perfect candidate for application of the major questions doctrine. The court will not uphold an “unprecedented” action of “vast economic or political significance” unless it has “unmistakable legislative support.” I will now describe four hypothetical exercises of the rulemaking power that Khan believes that the FTC possesses to illustrate my point.
Hypothetical Exercises of FTC Rulemaking Power
Creation of a Right to Repair
President Biden has urged the FTC to create a right for an owner of any product to repair the product or to have it repaired by an independent service organization (ISO). The Supreme Court’s 1992 opinion in Eastman Kodak v. Image Technical Services tells us all we need to know about the likelihood that it would uphold a rule that confers a right to repair. When Kodak took actions that made it impossible for ISOs to repair Kodak photocopiers, the ISOs argued that Kodak’s action violated both Section 1 and Section 2 of the Sherman Act. The Court held that Kodak could prevail only if it could persuade a jury that its view of the facts was accurate. The Court remanded the case for a jury trial to address three contested issues of fact.
The Court’s reasoning in Kodak is inconsistent with any version of a right to repair that the FTC might attempt to create through rulemaking. The Court expressed its view that allowing an ISO to repair a product sometimes has good effects and sometimes has bad effects. It concluded that it could not decide whether Kodak’s new policy was good or bad without first resolving the three issues of fact on which the parties disagreed. In a 2021 report to Congress, the FTC agreed with the Supreme Court. It identified seven factual contingencies that can cause a prohibition on repair of a product by an ISO to have good effects or bad effects. It is naïve to expect the Supreme Court to change its approach to repair rights in response to a rule in which the FTC attempts to create a right to repair, particularly when the FTC told Congress that it agrees with the Court’s approach immediately prior to Khan’s arrival at the agency.
Prohibition of Reverse-Payment Settlements of Patent Disputes Involving Prescription Drugs
Some people believe that settlements of patent-infringement disputes in which the manufacturer of a generic drug agrees not to market the drug in return for a cash payment from the manufacturer of the brand-name drug are thinly disguised agreements to create a monopoly and to share the monopoly rents. Khan has argued that the FTC could issue a rule that prohibits such reverse-payment settlements. Her belief that a court would uphold such a rule is contradicted by the Supreme Court’s 2013 opinion in FTC v. Actavis. The Court unanimously rejected the FTC’s argument in support of a rebuttable presumption that reverse payments are illegal. Four justices argued that reverse-payment settlements can never be illegal if they are within the scope of the patent. The five-justice majority held that a court can determine that a reverse-payment settlement is illegal only after a hearing in which it applies the rule of reason to determine whether the payment was reasonable.
A Prohibition on Below-Cost Pricing When the Firm Cannot Recoup Its Losses
Khan believes that illegal predatory pricing by dominant firms is widespread and extremely harmful to competition. She particularly dislikes the Supreme Court’s test for identifying predatory pricing. That test requires proof that a firm that engages in below-cost pricing has a reasonable prospect of recouping its losses. She wants the FTC to issue a rule in which it defines predatory pricing as below-cost pricing without any prospect that the firm will be able to recoup its losses.
The history of the Court’s predatory-pricing test shows how unrealistic it is to expect the Court to uphold such a rule. The Court first announced the test in a Sherman Act case in 1986. Plaintiffs attempted to avoid the precedential effect of that decision by filing complaints based on predatory pricing under the Robinson-Patman Act. The Court rejected that attempt in a 1993 opinion. The Court made it clear that the test for determining whether a firm is engaged in illegal predatory pricing is the same no matter whether the case arises under the Sherman Act or the Robinson-Patman Act. The Court undoubtedly would reject the FTC’s effort to change the definition of predatory pricing by relying on the FTC Act instead of the Sherman Act or the Robinson-Patman Act.
A Prohibition of Noncompete Clauses in Contracts to Employ Low-Wage Employees
President Biden has expressed concern about the increasing prevalence of noncompete clauses in employment contracts applicable to low wage employees. He wants the FTC to issue a rule that prohibits inclusion of noncompete clauses in contracts to employ low-wage employees. The Supreme Court would be likely to uphold such a rule.
A rule that prohibits inclusion of noncompete clauses in employment contracts applicable to low-wage employees would differ from the other three rules I discussed in many respects. First, it has long been the law that noncompete clauses can be included in employment contracts only in narrow circumstances, none of which have any conceivable application to low-wage contracts. The only reason that competition authorities did not bring actions against firms that include noncompete clauses in low-wage employment contracts was their belief that state labor law would be effective in deterring firms from engaging in that practice. Thus, the rule would be entirely consistent with existing antitrust law.
Second, there are many studies that have found that state labor law has not been effective in deterring firms from including noncompete clauses in low-wage employment contracts and many studies that have found that the increasing use of noncompete clauses in low-wage contracts is causing a lot of damage to the performance of labor markets. Thus, the FTC would be able to support its rule with high-quality evidence.
Third, the Supreme Court’s unanimous 2021 opinion in NCAA v. Alstom indicates that the Court is receptive to claims that a practice that harms the performance of labor markets is illegal. Thus, I predict that the Court would uphold a rule that prohibits noncompete clauses in employment contracts applicable to low-wage employees if it holds that the FTC can use notice-and-comment rulemaking to define “unfair methods of competition,” as that term is used in Section 5 of the FTC Act. That caveat is important, however. As I indicated at the beginning of this essay, I doubt that the FTC has that power.
I would urge the FTC not to use notice-and comment rulemaking to address the problems that are caused by the increasing use of noncompete clauses in low-wage contracts. There is no reason for the FTC to put a lot of time and effort into a notice-and-comment rulemaking in the hope that the Court will conclude that the FTC has the power to use notice-and-comment rulemaking to implement Section 5. The FTC can implement an effective prohibition on the inclusion of noncompete clauses in employment contracts applicable to low-wage employees by using a combination of legal tools that it has long used and that it clearly has the power to use—issuance of interpretive rules and policy statements coupled with a few well-chosen enforcement actions.
Alternative Ways to Improve Antitrust Law
There are many other ways in which Khan can move antitrust law in the directions that she prefers. She can make common cause with the many mainstream antitrust scholars who have urged incremental changes in antitrust law and who have conducted the studies needed to support those proposed changes. Thus, for instance, she can move aggressively against other practices that harm the performance of labor markets, change the criteria that the FTC uses to decide whether to challenge proposed mergers and acquisitions, and initiate actions against large platform firms that favor their products over the products of third parties that they sell on their platforms.
[This guest post from Corbin K. Barthold of TechFreedom —the fourth post in our FTC UMC Rulemaking symposium—is adapted from his and Berin Szoka’s chapter “The Constitutional Revolution That Wasn’t: Why the FTC Isn’t a Second National Legislature,” in the forthcoming book FTC’s Rulemaking Authority, which will be published by Concurrences later this year.It is the second of two contributions to the symposium posted today, along with this related post from Yale Law Schoolstudent Leah Samuel. 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 1972, a case came before the Hon. Aubrey E. Robinson, Jr., a federal trial judge in the District of Columbia, involving the scope of the Federal Trade Commission’s (FTC) regulatory authority. Section 5(a)(1) of the Federal Trade Commission Act outlaws “unfair methods of competition.” Section 6(g) says that the FTC may “make rules and regulations for the purposes of carrying out” the FTC Act.
What is a “rule or regulation” that helps “carry out” a statute? Does Section 6(g) simply permit the FTC to make “procedural” or “housekeeping” rules that set forth how the agency will conduct itself? Or does it instead empower the FTC to make “substantive” or “legislative” rules—precepts, binding on the public, that flesh out which methods of competition are “unfair”? This was the question before Judge Robinson.
Robinson kept his eye squarely on the FTC Act’s text and structure. What stood out to him, when he examined the statute, is the glaring structural distinction between Section 5 and Section 6. Section 5 enables the agency to file complaints, hold hearings, make findings of fact, and issue cease-and-desist orders. Section 6 permits the agency to gather and publish information about corporate practices. Each section is closely concerned with its assigned topic: Section 5 explains, in detail, how the FTC shall exercise quasi-judicial powers; Section 6 explains, in detail, how the FTC shall exercise investigative powers. The two sections have little to say to each other. This, concluded Robinson, was a strong signal that Section 6(g) does not leap its fence, progress to Section 5(a)(1), and enable the creation of rules that define “unfair methods of competition.”
That was just the beginning. Why would Congress pair a vague and open-ended rulemaking power with an elaborate and strictly circumscribed quasi-judicial power? If the FTC could make whole categories of conduct unlawful by diktat, why would it endure the rigmarole of Section 5 adjudication? More to the point, why would Congress bother to spell out that process, knowing that the FTC would go around it? In full, moreover, Section 6(g) gives the FTC the power “[f]rom time to time to classify corporations and to make rules and regulations for the purposes of carrying out the provisions of [the Act].” What is the part about “classify[ing]” companies doing there? Read as a whole, Section 6(g) seems merely to equip the FTC to conduct investigations, including, as Robinson put it, by ensuring that the agency has “the power to require reports from all corporations.”
Nor did the clues end there. Other statutes expressly grant the FTC the power to issue discrete consumer-protection rules, such as rules governing the labels of wool products. Congress knew how to grant legislative rulemaking power when it wanted to do so. And the limited grants of such power, in the other statutes, would be superfluous if the FTC already possessed a general “unfair methods” rulemaking authority in Section 6(g).
(Although Robinson did not mention it, a further sign of Section 6(g)’s narrow scope is the absence of statutory penalties for violating an FTC-issued rule. In the era when the FTC Act was passed, Congress never granted the power to make substantive rules without also specifying the price of noncompliance.)
In short, the FTC Act’s text and structure show that Section 6(g) has no intention of helping Section 5(a)(1). And when he checked his work against the FTC Act’s legislative history, Robinson found out why that is so. Section 6(g), he discovered, was originally in a House bill “that conferred only investigative powers on the Commission.” A competing bill in the Senate, meanwhile, contained quasi-judicial powers and the “unfair methods” standard but “made no provision whatever for the promulgation of rules and regulations in any context.” The investigations-only House bill and the no-rulemaking-power Senate bill were eventually stitched together. No wonder Section 6(g) does not seem to support the creation of legislative rules about the meaning of Section 5(a)(1); the two provisions were born into different bills.
If more support were needed, added Robinson, the FTC’s conduct would provide it. It had taken the FTC 50 years to “notice” a vast store of authority hiding in Section 6(g)—yet another revealing indication, Robinson wrote, “that the FTC knew it was not originally granted this rulemaking authority.” Over the years, the agency had even “repeatedly admitted that it has no power to promulgate substantive rules of law.”
Life is not fair. Judge Robinson’s well-crafted order is not good law. It was reversed. And in its place stands an appellate opinion that is longer, more repetitive, less rigorous, less disciplined, and altogether less convincing than the decision it overturns.
“Our duty,” U.S. Court of Appeals for the D.C. Circuit Judge J. Skelly Wright pronounced at the outset of his 1973 opinion in National Petroleum Refiners v. FTC, “is not simply to make a policy judgment.” The FTC, after all, “is a creation of Congress, not a creation of judges’ contemporary notions of what is wise policy.” He might then have said: We therefore adopt the careful opinion of Judge Robinson as our own—affirmed.
He did not say that. In opening with a pious renunciation of judicial policymaking, in fact, he protested too much.
Wright’s treatment of the FTC Act’s text is brusque and general. Construing Section 6(g) to allow substantive rulemaking, Wright submitted, would “not in any formal sense circumvent” the quasi-judicial enforcement mechanism of Section 5. Congress, he went on, had not explicitly told the FTC it could only proceed case-by-case. He then discussed a pair of Supreme Court cases that, though concededly not on point, suggest the FTC Act should be read “broad[ly]” and as a “whole.” And he recited Section 6(g) itself, as though its support for his position were self-evident.
This casual nod to text complete, Wright moved on to his true preoccupation—policy considerations. Over and over, he praised the “invaluable resource-saving flexibility” of rulemaking. According to Wright:
“[U]se of substantive rule-making is increasingly felt to yield significant benefits. … Increasingly, courts are recognizing that use of rule-making to make innovations in agency policy may actually be fairer to regulated parties than total reliance on case-by-case adjudication.”
“[C]ontemporary considerations of practicality and fairness … certainly support the Commission’s position here.”
“Such benefits are especially obvious in cases involving the initiation of rules of the sort the FTC has promulgated here.”
“[T]he policy innovation involved in this case underscores the need for increased reliance on rule-making rather than adjudication alone.”
“[The FTC] has remained hobbled in its task by the delay inherent in repetitious, lengthy litigation[.] … To the extent substantive rule-making … is likely to deal with these problems … [it] should be upheld as [allowed under the FTC Act].”
“[T]he Commission will be able to proceed more expeditiously, … and … more efficiently with a mixed system of rule-making and adjudication[.]”
“[C]ourts have stressed the advantages of efficiency and expedition which inhere in reliance on rule-making instead of adjudication alone.”
So much for eschewing “judges’ contemporary notions of what is wise policy”! Rulemaking was the wave of the future, as all fashionable and enlightened judges understood. Wright seemed to believe, therefore, that he should insert into the FTC Act the power to make substantive rules. Whether the helpless text could bear such a reading was a secondary concern at best.
When not providing his personal endorsement of the benefits of rulemaking, Wright repeatedly invoked the FTC Act’s “purpose”:
“[R]ejecting the claim of rule-making power would run counter to the broad policies … that clearly motivated Congress in 1914.”
“[T]he broad, undisputed policies which clearly motivated the framers of the [FTC] Act of 1914 would indeed be furthered by our view[.]”
“[R]ule-making is not only consistent with the original framers’ broad purposes, but appears to be a particularly apt means of carrying them out.”
The FTC needs rulemaking power “to do the job assigned by Congress.”
But a judge may not appeal to a statute’s “purpose” on the false cry that he is divining what the legislators “really” meant. The Supreme Court in more recent years has explained that “no legislation pursues its purposes at all costs,” and that “it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.”The missing ingredient in Wright’s long document—what should have been the main ingredient—is obedience to the statutory text and structure.
Wright’s opinion in National Petroleum Refiners is a museum piece. It is a fossilized remnant of an extinct species of statutory interpretation. For a court trying to understand the FTC Act today, it is next to useless. Judges may not let their rulings be driven by their sense of “policy,” by their intuitions about statutory “purpose,” or by their desire for a personally satisfying result. The Supreme Court has shut the door on these factors. The judiciary possesses “no roving license,” it has said, to rewrite a statute on the assumption that “Congress ‘must have intended’ something broader.” Judges are “expounders of what the law is,” not “policymakers choosing what the law should be.”
[This guest post from Yale Law Schoolstudent Leah Samuel—the third post in our FTC UMC Rulemaking symposium—is a condensed version of a full-length paper. Please reach out to Leah at firstname.lastname@example.org if you would like a copy of the full draft. It is the first of two contributions to the symposium posted today, along with this related post from Corbin K. Barthold of TechFreedom. 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 Federal Trade Commission’s (FTC) ability to conduct substantive rulemaking under both its “unfair methods of competition” (UMC) and “unfair and deceptive practices” (UDAP) mandates was upheld by the U.S. Court of Appeals for the D.C. Circuit in 1973’s National Petroleum Refiners Association v. FTC. Nonetheless, the FTC has seldom exercised this authority with respect to UMC—its antitrust authority. And various scholars and commentators have suggested that such an attempt would quickly be rejected by the U.S. Supreme Court.
I argue that the plain text and procedural history of the 1975 Magnuson–Moss Warranty Act demonstrate that Congress implicitly ratified the National Petroleum decision as it applied to UMC rulemaking. The scholarly focus on the intentions of the framers of the 1914 Federal Trade Commission Act with respect to substantive rulemaking is therefore misplaced—whether the FTC has exercised its UMC rulemaking powers in recent decades, its ability to do so was affirmed by Congress in 1974.
When the FTC first began to promulgate substantive rules under Section 5, neither the agency nor reviewing courts readily distinguished between UMC and UDAP authority. In 1973, the D.C. Circuit determined that the FTC was empowered to promulgate a legally binding trade regulation rule that required the posting of octane numbers at gas stations as a valid legislative rule under both UMC and UDAP. The given trade regulation rule was not clearly categorized as consumer protection or antitrust by the court. In 1975, Congress passed the Magnuson-Moss Act, which added procedural requirements to UDAP rulemaking without changing the processes applicable to UMC rulemaking as it stood after National Petroleum. In 1980, Congress added additional cumbersome procedural hurdles, as well as certain outright prohibitions to so-called Magnuson-Moss rulemaking with the Federal Trade Commission Improvements Act (FTCIA), still leaving UMC untouched.
A textualist reading of the Magnuson-Moss Act should lead to the conclusion that the FTC has the power to conduct substantive UMC rulemaking. Because Congress was actively aware of and responding to the National Petroleum decision and the FTC’s Octane Rule, the Magnuson-Moss Act should be read to leave UMC rulemaking intact under the Administrative Procedure Act (APA).
Interpreting Magnuson-Moss to acknowledge the existence of, and therefore validate, UMC rulemaking does the least violence to the text, in keeping with the supremacy-of-text principle, as described by Justice Antonin Scalia and Bryan A. Garner in “Reading Law: The Interpretation of Legal Texts.” Absent any express statement eliminating or bracketing that authority, the contextual meaning of Magnuson-Moss § 202(a)(2)—“[t]he preceding sentence shall not affect any authority of the Commission to prescribe rules…with respect to unfair methods of competition”—is most clearly understood as protecting the existence of UMC rulemaking as it existed in law at the moment of the bill’s passage. In his famous concurrence in Green v. Bock Laundry Machine Co., Justice Scalia explained that:
The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is . . . most compatible with the surrounding body of law into which the provision must be integrated—a compatibility which, by a benign fiction, we assume Congress always has in mind.
In Branch v. Smith, Scalia applied this method to the Voting Rights Act, reasoning that Congress has a constructive awareness of lower-court decisions when it amends a statute. While that constructive awareness, and the statutory meaning that it implies, cannot trump the plain text of the amended statute, it is an important aid to interpretation. Here, the benign fiction of constructive awareness is actually a demonstrable fact: Congress was aware of National Petroleum and took it to be the legal default. Where the lower court decision-making process and the legislative process were closely intertwined, the presumption that Congress knew and adopted the D.C. Circuit’s reasoning is more defensible from a textualist perspective than any other reading of Section 202.
This is not an argument derived from legislative silence or inaction, canons disfavored by today’s textualists. Here, Congress definitively acted, amending the FTC Act multiple times over the decade. To read into the text of the Magnuson-Moss Act a provision stripping the FTC of its UMC rulemaking authority and overturning National Petroleum would be to violate the omitted case canon, as Scalia and Garner put it: “The absent provision cannot be supplied by the courts. What the legislature ‘would have wanted’ it did not provide, and that is the end of the matter.” In sum, the Congresses of 1974 and 1980 affirmed the existence of UMC rulemaking under APA procedures.
FTC Rulemaking Before the Octane Rule
During its first 50 years, the FTC carried out its mandate exclusively through nonbinding recommendations called “trade practice rules” (TPRs), alongside case-by-case adjudications. TPRs emerged from FTC-facilitated “trade practice conferences,” where industry participants formulated rules around what constituted unfair practices within their industry. In the early 1960s, Kennedy-appointed FTC Chair Phil Elman began to push the agency to shift away from a reactive “mailbag approach” based on individual complaints and toward a systematic approach based on binding agency rules. The result was the promulgation of “trade regulation rules” (TRRs) through notice-and-comment rulemaking, which the FTC initiated by amending its procedural rules to permit binding rulemaking in 1962. The FTC’s first TRR, promulgated in 1964, explicitly relied upon the agency’s UDAP authority. However, its statement of basis and purpose contained a full-throated defense of FTC rulemaking in general, including UMC rulemaking. The history of these early rulemaking efforts has been documented comprehensively by Luke Herrine.
Of the TRRs that the FTC promulgated before the Octane Rule, only one appears to have been explicitly identified as an exercise of antitrust rulemaking under Section 6(g) of the FTC Act. That rule, promulgated in 1968, identified its authority as sections 2(d) and 2(e) of the Clayton Act, rather than UMC under Section 5 of the FTC Act. The agency itself, upon repealing the rule, found that no enforcement actions were ever brought under it. Given the existence, however underutilized, of the 1968 rule—alongside the 1971 Octane Rule described below—it is clear that FTC personnel during the 1960s and 1970s did not understand TRRs to mean only consumer protection rules under UDAP. Furthermore, the Congress that enacted the Magnuson-Moss Act was aware of and legislating against the background fact that the FTC had already promulgated two final rules drawing on antitrust authority.
The National Petroleum Decision
In December 1971, the FTC promulgated a TRR through APA notice-and-comment rulemaking declaring that the failure to post octane ratings on gas pumps constituted a violation of Section 5 of the FTC Act, citing both UMC and UDAP as its authorizing provisions. Quoting from the statement of base and purpose of the 1964 Cigarette Rule, the FTC declared that it was empowered to promulgate the TRR under the “general grant of rulemaking authority in section 6(g) (of the Federal Trade Commission Act), and authority to promulgate it is in any event, implicit in section 5(a) (6) (of the Act) and in the purpose and design of the Trade Commission Act as a whole.”
Like the Octane Rule itself, Judge J. Skelly Wright’s 1973 National Petroleum decision affirming the FTC’s authority to promulgate the rule did not distinguish between UMC and UDAP rulemaking and did not limit its holding to one or the other.
Wright’s opinion rested first on a plain language reading of 15 U.S.C. § 46(g), which provides that the FTC may “[f]rom time to time … classify corporations and … make rules and regulations for the purpose of carrying out the provisions of sections 41 to 46 and 47 to 58 of this title.” He rejected appellees’ claim that the placement of § 6(g) in the section of the FTC Act that empowers the commission to systematically investigate and collect industry reports (colloquially referred to as 6(b) orders) manifests Congress’s intent to limit 6(g) rulemaking to the FTC’s “nonadjudicatory, investigative and informative functions.” As he pointed out, the text of 6(g) as adopted applied to section 45, which corresponds to § 5 of the FTC Act.
Wright acknowledged, however, that in theory 6(g) could be limited to rules of procedure and practice—such was the holding of the district court. Wright declined to follow the district court, holding instead that, “while the legislative history of Section 5 and Section 6(g) is ambiguous, it certainly does not compel the conclusion that the Commission was not meant to exercise the power to make substantive rules with binding effect in Section 5(a) adjudications. We also believe that the plain language of Section 6(g)…confirms the framers’ intent to allow exercise of the power claimed here.”Finding the legislative history “cryptic” and inconclusive, Wright argued that “the need to rely on the section’s language is obvious.”
He resolved the matter in the FTC’s favor by focusing on the agency’s need for effective tools to carry out its mandate; to force the agency to proceed solely by adjudication “would render the Commission ineffective to do the job assigned it by Congress. Such a result is not required by the legislative history of the Act.”
While contemporary skeptics of the administrative state might take issue with Wright’s statutory interpretation, it is difficult to argue with his textualist premise: nothing in the text of 6(g) limits the provision to procedural rulemaking.
More importantly, the Magnuson-Moss Act was passed Dec. 19, 1974, only a year and a half after the National Petroleum decision. The text and history of the Magnuson-Moss Act evinces an awareness of and attentiveness to the National Petroleum decision—the proposed legislation and the National Petroleum case were both pending during the early 1970s. The text of Magnuson-Moss canonizes Wright’s authorization of FTC rulemaking powers under both UMC and UDAP, while specifying a more rigorous set of procedural hurdles for UDAP rulemaking.
Legislative History of the Magnuson-Moss Act
Some commentators have suggested that the general purpose of Magnuson-Moss with respect to FTC rulemaking must have been to bog down the rule-promulgation process, because the act added procedural requirements like cross-examination to UDAP rulemaking. From that premise, it may be argued that a Congress hostile to FTC rulemaking would not have simultaneously sandbagged UDAP rulemaking while validating UMC rulemaking under the APA. That logical jump oversimplifies the process of negotiation and compromise that typifies any legislative process, and here it leads to the wrong conclusion. Magnuson-Moss was the result of consumer-protection advocates’ painstaking efforts to strengthen the FTC across many dimensions. The addition of trial-type procedures was a concession that they ultimately offered to business interests to move the bill out of the hostile U.S. House Commerce and Finance Subcommittee. However, the bill moved out of conference committee and to the President Gerald Ford’s desk only after its champions were assured that, in the immediate aftermath of National Petroleum, UMC rulemaking would be unimpaired.
Sen. Warren Magnuson’s (D-Wash.) strategy from the beginning was to marry together the popular and relatively easy-to-understand warranty provisions with a revitalization of the FTC. As early as 1971, President Richard Nixon publicized his support for a watered-down version of a warranty-FTC bill. Notwithstanding the political cover from Nixon, House Republicans were reluctant to move any bill forward. Michael Lemov, counsel to Rep. John E. Moss (D-Calif.) during this period, wrote that the House Commerce Committee in the early 70s was increasingly attentive to business interests and hostile to consumer-protection legislation. It ultimately took Moss’ deal-brokering to make Magnuson’s consumer-protection legacy a reality by unsticking multiple consumer-protection bills from the House “graveyard of consumer bills.” While Magnuson succeeded in passing the Magnuson-Moss draft to a full Senate vote three times in between 1970 and 1974, Moss spent years (and 12 full days of hearings) trying to get the bill out of his Commerce and Finance Subcommittee.
What finally unstuck the bill on the House side, according to Lemov, was the participation of the Nixon-appointed but surprisingly vigorous FTC Chair Lewis Engman. Engman testified before the subcommittee on March 19, 1973, that if the cross-examination provisions couldn’t be cut out of the bill, then all of the rulemaking provisions of the bill should be stripped out. By this time, the National Petroleum Refiners decision was pending, and Engman evidently felt that the FTC could do better with the rulemaking authority that might be left to it by Wright’s decision, rather than the burdensome procedure set out in the House draft. The National Petroleum decision came down June 28, 1973, and by Feb. 25, 1974, the U.S. Supreme Court had denied certiorari, such that Congress could and did consider Wright’s decision to be the state of the law. According to Lemov, Moss was upset that Engman blindsided him with his demand to leave the entirety of Section 5 rulemaking under the National Petroleum standard. In response, he doubled down and brokered a deal with key Republican committee member Rep. Jim Broyhill (R-N.C.), which would keep cross-examination but limit it to material issues of fact, not policy or minutia. After being further weakened in the full House Commerce Committee, the bill made it to a floor vote and along to the conference committee on Sept. 19, 1974, to be reconciled with the stronger Senate version.
In conference, the bill was somewhat resuscitated. It made it out of the House and Senate in December 1974 and was signed by Ford in January 1975. The House’s industry-influenced version of cross-examination made it into law, since the Senate version would have left the entirety of FTC rulemaking power under the National Petroleum holding. In short, the burdensome procedures included in the Magnuson-Moss Act, particularly cross-examination, were either devised by or advocated for by industry-friendly interests intending to tie the FTC’s hands. However, at the urging of Engman, both the Senate and House were attentive to the progress of the National Petroleum decision, and ultimately conferred on a bill that deliberately left UMC rulemaking under the simpler APA process permitted by that decision’s precedent.
The Plain Meaning of Magnuson-Moss
The text of the critical passage of the Magnuson-Moss Act, as codified at 15 U.S.C. § 57a, has not been substantially changed since 1975, though two modifications appear in italics:
(a) Authority of Commission to prescribe rules and general statements of policy
(1) Except as provided in subsection (h), the Commission may prescribe–
(A) interpretive rules and general statements of policy with respect to unfair or deceptive acts or practices […] and
(B) rules which define with specificity acts or practices which are unfair or deceptive acts or practices […], except that the Commission shall not develop or promulgate any trade rule or regulation with regard to the regulation of the development and utilization of the standards and certification activities pursuant to this section.Rules under this subparagraph may include requirements prescribed for the purpose of preventing such acts or practices.
(2) The Commission shall have no authority under this subchapter, other than its authority under this section, to prescribe any rule with respect to unfair or deceptive acts or practices […]. The preceding sentence shall not affect any authority of the Commission to prescribe rules (including interpretive rules), and general statements of policy, with respect to unfair methods of competition…
Both of the two changes in italics were the result of the 1980 FTCIA, which is discussed in more depth below. An uncodified section of the bill, labeled “15 USC 57a Note,” reads as follows:
(C)(1) The amendment made by subsections (a) and (b) of this section shall not affect the validity of any rule which was promulgated under section 6(g) of the Federal Trade Commission act prior to the date of enactment of this section. Any proposed rule under section 6(g) of such act with respect to which presentation of data, views, and arguments was substantially completed before such date may be promulgated in the same manner and with the same validity as such rule could have been promulgated had this section not been enacted.
Taken together, the language of Section 202 and 202(c) display a consciousness of the FTC’s prior norms of rulemaking authorized by Section 6(g), and an intent to bifurcate the treatment of UDAP and UMC rulemaking. Section 202 (a)(2) limits UDAP rulemaking, whether interpretive or legislative, to the new boundaries established in the bill, while explicitly leaving UMC rulemaking, including, but not limited to, interpretative rules and statements of policy, outside the new constraints and tethered to Section 6(g).
Clearly UMC is subject to the residual of FTC rulemaking authority—but the interpreter is left to determine whether that residual:
eliminates UMC rulemaking altogether;
leaves UMC rulemaking viable under 6(g) and the APA procedures as established in National Petroleum; or
is agnostic to UMC rulemaking but repudiates National Petroleum, thereby leaving UMC rulemaking open to interpretation based on the meaning of the 1914 FTCA.
Without reference to legislative history, a textualist approach to determining which of the three possibilities is most plausible is to ask what an enacting Congress with a clear preference would have done (see, e.g., Scalia’s majority opinion in Edmond v. United States). Congress could, with even greater parsimony and clarity in drafting, have limited all rulemaking to the Magnuson-Moss procedures by simply referencing Section 5 in the first sentence of (a)(2), or in the first sentences of (a)(1)(A) and (B). Alternately, if the objective was to prohibit UMC rulemaking while allowing a more procedurally limited form of UDAP rulemaking, Congress could have written the second sentence of (a)(2) as: “The preceding sentence shall not authorize the Commission to prescribe rules (including interpretive rules), and general statements of policy, with respect to unfair methods of competition in or affecting commerce” or “The preceding sentence shall not authorize the Commission to prescribe rules, except interpretive rules and general statements of policy, with respect to unfair methods of competition in or affecting commerce.”
We presume that Congress enacted the Magnuson-Moss Act with, as Scalia put it in Bock Laundry, a meaning “most compatible with the surrounding body of law into which the provision must be integrated—a compatibility which, by a benign fiction, we assume Congress always has in mind.” Therefore, while a textualist would not admit the legislative history and administrative history of the FTC to this interpretation, the history is relevant inasmuch as we presume that Congress legislates against the existing state of the law as it understands it. The foregoing history demonstrates conclusively that Congress was aware of and accounting for the National Petroleum decision at multiple stages of the legislative process. The FTC’s UMC rulemaking history further lends support to the fact that Congress and the agency understood UMC rulemaking power to exist before and after the enactment of Magnuson-Moss.
Rulemaking After the Magnuson-Moss Act and the 1980 FTCIA
Returning to the current statutory text, both of the changes in italics were the result of the 1980 FTCIA, which was designed to rein in perceived FTC overreach in the consumer-protection space. The reference to Subsection (h) incorporates an explicit halt to the FTC’s then-pending consumer-protection rulemaking relating to advertising directed at children. The exception codified at (a)(1)(B) targeted the FTC’s ongoing rulemaking in standards and certification.
The Standards and Certifications Rule was the most significant attempt at competition rulemaking after the Octane Rule, although it was never finalized. Two staff reports indicate that FTC staff in both 1978 and 1983 believed that the agency’s authority to make rules under UMC authority was not abrogated by Magnuson-Moss, nor by the FTCIA. The proposed rule would have authorized the FTC to define situations in which the process of developing standards and certifications for a wide variety of industries may give rise to competitive injuries in violation of Section 5. The 1978 proposed rule and staff teport drew on both UMC and UDAP authority, noting that, in the years since National Petroleum, Magnuson-Moss had codified the FTC’s rulemaking authority and added procedural requirements, but that the act, by its own terms, applied only to UDAP rulemaking. Accordingly, the FTC’s “authority to promulgate rules relating to unfair methods of competition was expressly left unchanged by the Act.” Because of the bifurcation in UMC and UDAP rulemaking procedures, Bureau of Consumer Protection (BCP) staff opted to proceed with the standards and certification rulemaking under the new Magnuson-Moss procedures, on the understanding that meeting the higher procedural bar of Magnuson-Moss would also satisfy the requirements of § 553 of the APA.
By 1983, however, BCP staff had shifted gears. The standards and certification final staff report of April 1983, which would have been delivered to the FTC commissioners for a vote on whether to promulgate the rule or not, recommended UMC rulemaking under 6(g). In drawing on its 6(g) authority, BCP staff acknowledged that the 1980 FTCIA had explicitly removed commission authority to promulgate a standards and certification rule under Section 18 of the FTC Act, referring to the new UDAP section.
Clearly, the 1980 FTCIA was intended as a rebuke to the FTC’s efforts at consumer-protection rulemaking. However, the fact that earlier House and Senate drafts contemplated removing all FTC rulemaking authority, or removing standards and certification rulemaking authority for both UMC and UDAP, strongly suggests that Congress understood that the two rulemaking powers existed, had been affirmed by Magnuson-Moss, and continued to be legally viable, even as their exercise became politically infeasible.
BCP staff was bolstered in this interpretation by the D.C. District Court, which granted summary judgment in February 1982 against the American National Standards Institute, which brought suit against the commission claiming that the proposed Standards and Certification Rule proceeding under 6(g) violated the FTCIA of 1980.In an unpublished opinion, the court held that “the text and legislative history of the FTCIA belie Plaintiffs’ claims,” while also defending the continuing dispositivity of National Petroleum on the question of § 6(g) rulemaking. ANSI did not appeal the district court’s decision.
BCP staff forged ahead with the final report in April 1983, acknowledging that, to the extent that certain substantive requirements around disclosures from the 1978 proposed rule were directed at preventing “deception,” the FTC was no longer able to proceed with such rules. To the extent that such disclosures “would have alleviated unfair methods of competition,” the final rule could “provide similar relief.” The Standards and Certifications Rule was never adopted, however, because by 1983, FTC leadership was actively hostile to regulation. The only mentions of “unfair methods of competition” in the rulemaking context in the Federal Register after the Standards and Certification Rule appears to be in the context of repeals.
The Magnuson-Moss Act explicitly left UMC rulemaking unchanged when establishing an additional set of procedural hurdles for UDAP rulemaking. Congress in 1974 both constructively and demonstrably knew that the legal default against which these changes were made was Judge Wright’s National Petroleum decision, as well as the final agency action embodied in the Octane Rule. A textualist reading of the Magnuson-Moss Act must begin with this background legal context to avoid doing violence to the text of the statute. This interpretation is further reinforced by the FTCIA, which also left UMC rulemaking intact, while banning specific instances of UDAP rulemaking. In short, the FTC has substantive UMC rulemaking authority under FTC Act Section 5.
[This guest post from Lawrence J. Spiwak of the Phoenix Center for Advanced Legal & Economic Public Policy Studiesis the second in our FTC UMC Rulemaking symposium. 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.]
While antitrust and regulation are supposed to be different sides of the same coin, there has always been a healthy debate over which enforcement paradigm is the most efficient. For those who have long suffered under the zealous hand of ex ante regulation, they would gladly prefer to be overseen by the more dispassionate and case-specific oversight of antitrust. Conversely, those dissatisfied with the current state of antitrust enforcement have increased calls to abandon the ex post approach of antitrust and return to some form of active, “always on” regulation.
While the “antitrust versus regulation” debate has raged for some time, the election of President Joe Biden has brought a new wrinkle: Lina Khan, the controversial chair of the Federal Trade Commission (FTC), has made it very clear that she would like to expand the commission’s role from that of a mere enforcer of the nation’s antitrust laws to that of an agency that also promulgates ex ante “bright line” rules. Thus, the “antitrust versus regulation” debate is no longer academic.
Khan’s efforts to convert the FTC into a de facto regulator should surprise no one, however. Even before she was nominated, Khan was quite vocal about her policy vision for the FTC. For example, in 2020, she co-authored an essay with her former boss (and later briefly her FTC colleague) Rohit Chopra in the University of Chicago Law Review titled “The Case for ‘Unfair Methods of Competition’ Rulemaking.” In it, Khan and Chopra lay out both legal and policy arguments to support “unfair methods of competition” (UMC) rulemaking. But as I explain in a law review published last year in the Federalist Society Review titled “A Change in Direction for the Federal Trade Commission?”, Khan and Chopra’s arguments simply do not hold up to scrutiny. While I encourage those interested in the bounds of the FTC’s UMC rulemaking authority to read my paper in full, for purposes of this symposium, I include a brief summary of my analysis below.
Khan’s Legal Arguments for a UMC Rulemaking
At the outset of their essay, Chopra and Khan lay out what they believe to be the shortcomings of modern antitrust enforcement. As they correctly note, “[a]ntitrust law today is developed exclusively through adjudication,” which is designed to “facilitate nuanced and fact-specific analysis of liability and well-tailored remedies.” However, the authors contend that, while a case-by-case approach may sound great in theory, “in practice, the reliance on case-by-case adjudication yields a system of enforcement that generates ambiguity, unduly drains resources from enforcers, and deprives individuals and firms of any real opportunity to democratically participate in the process.” Chopra and Khan blame this alleged policy failure on the abandonment of per se rules in favor of the use of the “rule-of-reason” approach in antitrust jurisprudence. In their view, a rule-of-reason approach is nothing more than “a broad and open-ended inquiry into the overall competitive effects of particular conduct [which] asks judges to weigh the circumstances to decide whether the practice at issue violates the antitrust laws.” To remedy this perceived analytical shortcoming, they argue that the commission should step into the breach and promulgate ex ante bright-line rules to better enforce the prohibition against “unfair methods of competition” (UMC) outlined in Section 5 of the Federal Trade Commission Act.
As a threshold matter, while courts have traditionally provided guidance as to what exactly constitutes “unfair methods of competition,” Chopra and Khan argue that it should be the FTC that has that responsibility in the first instance. According to Chopra and Khan, because Congress set up the FTC as the independent expert agency to implement the FTC Act and because the phrase “unfair methods of competition” is ambiguous, courts must accord great deference to “FTC interpretations of ‘unfair methods of competition’” under the Supreme Court’s Chevron doctrine.
The authors then argue that the FTC has statutory authority to promulgate substantive rules to enforce the FTC’s interpretation of UMC. In particular, they point to the broad catch-all provision in Section 6(g) of the FTC Act. Section 6(g) provides, in relevant part, that the FTC may “[f]rom time to time . . . make rules and regulations for the purpose of carrying out the provisions of this subchapter.” Although this catch-all rulemaking provision is far from the detailed statutory scheme Congress set forth in the Magnuson-Moss Act to govern rulemaking to deal with Section 5’s other prohibition against “unfair or deceptive acts and practices” (UDAP), Chopra and Khan argue that the D.C. Circuit’s 1973 ruling in National Petroleum Refiners Association v. FTC—a case that predates the Magnuson-Moss Act—provides judicial affirmation that the FTC has the authority to “promulgate substantive rules, not just procedural rules” under Section 6(g). Stating Khan’s argument differently: although there may be no affirmative specific grant of authority for the FTC to engage in UMC rulemaking, in the absence of any limit on such authority, the FTC may engage in UMC rulemaking subject to the constraints of the Administrative Procedure Act.
As I point out in my paper, while there are certainly strong arguments that the FTC lacks UMC rulemaking authority (see, e.g., Ohlhausen & Rill, “Pushing the Limits? A Primer on FTC Competition Rulemaking”), it is my opinion that, given the current state of administrative law—in particular, the high level of judicial deference accorded to agencies under both Chevron and the “arbitrary and capricious standard”—whether the FTC can engage in UMC rulemaking remains a very open question.
That said, even if we assume arguendo that the FTC does, in fact, have UMC rulemaking authority, the case law nonetheless reveals that, despite Khan’s hopes and desires, the FTC cannot unilaterally abandon the consumer welfare standard. As I explain in detail in my paper, even with great judicial deference, it is well-established that independent agencies simply cannot ignore antitrust terms of art (especially when that agency is specifically charged with enforcing the antitrust laws). Thus, Khan may get away with initiating UMC rulemaking, but, for example, attempting to impose a mandatory common carrier-style non-discrimination rule may be a bridge too far.
Khan’s Policy Arguments in Favor of UMC Rulemaking
Separate from the legal debate over whether the FTC can engage in UMC rulemaking, it is also important to ask whether the FTC should engage in UMC rulemaking. Khan essentially posits that the American economy needs a generic business regulator possessed with plenary power and expansive jurisdiction. Given the United States’ well-documented (and sordid) experience with public-utility regulation, that’s probably not a good idea.
Indeed, to Khan and Chopra, ex ante regulation is superior to ex post antitrust enforcement. For example, they submit that UMC “rulemaking would enable the Commission to issue clear rules to give market participants sufficient notice about what the law is, helping ensure that enforcement is predictable.” Moreover, they argue that “establishing rules could help relieve antitrust enforcement of steep costs and prolonged trials.” In particular, “[t]argeting conduct through rulemaking, rather than adjudication, would likely lessen the burden of expert fees or protracted litigation, potentially saving significant resources on a present-value basis.” And third, they contend that rulemaking “would enable the Commission to establish rules through a transparent and participatory process, ensuring that everyone who may be affected by a new rule has the opportunity to weigh in on it, granting the rule greater legitimacy.”
Khan’s published writings argue forcefully for greater regulatory power, but they suffer from analytical omissions that render her judgment questionable. For example, it is axiomatic that, while it is easy to imagine or theorize about the many benefits of regulation, regulation imposes significant costs of both the intended and unintended sorts. These costs can include compliance costs, reductions of innovation and investment, and outright entry deterrence that protects incumbents. Yet nowhere in her co-authored essay does Khan contemplate a cost-benefit analysis before promulgating a new regulation; she appears to assume that regulation is always costless, easy, and beneficial, on net. Unfortunately, history shows that we cannot always count on FTC commissioners to engage in wise policymaking.
Khan also fails to contemplate the possibility that changing market circumstances or inartful drafting might call for the removal of regulations previously imposed. Among other things, this failure calls into question her rationale that “clear rules” would make “enforcement … predictable.” Why, then, does the government not always use clear rules, instead of the ham-handed approach typical of regulatory interventions? More importantly, enforcement of rules requires adjudication on a case-by-case basis that is governed by precedent from prior applications of the rule and due process.
Taken together, Khan’s analytical omissions reveal a lack of historical awareness about (and apparently any personal experience with) the realities of modern public-utility regulation. Indeed, Khan offers up as an example of purported rulemaking success the Federal Communications Commission’s 2015 Open Internet Order, which imposed legacy common-carrier regulations designed for the old Ma Bell monopoly on the internet. But as I detail extensively in my paper, the history of net-neutrality regulation bears witness that Khan’s assertions that this process provided “clear rules,” was faster and cheaper, and allowed for meaningful public participation simply are not true.
[This post is the first in our FTC UMC Rulemaking symposium. 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 1500-4000 word responses for potential inclusion in the symposium.]
There is widespread interest in the potential tools that the Biden administration’s Federal Trade Commission (FTC) may use to address a range of competition-related and competition-adjacent concerns. A focal point for this interest is the potential that the FTC may use its broad authority to regulate unfair methods of competition (UMC) under Section 5 of the FTC Act to make rules that address a wide range of conduct. This “potential” is expected to become a “likelihood” with confirmation of Alvaro Bedoya, a third Democratic commissioner, expected to occur any day.
This post marks the start of a Truth on the Market symposium that brings together academics, practitioners, and other commentators to discuss issues relating to potential UMC-related rulemaking. Contributions to this symposium will cover a range of topics, including:
Constitutional and administrative-law limits on UMC rulemaking: does such rulemaking potentially present “major question” or delegation issues, or other issues under the Administrative Procedure Act (APA)? If so, what is the scope of permissible rulemaking?
Substantive issues in UMC rulemaking: costs and benefits to be considered in developing rules, prudential concerns, and similar concerns.
Using UMC to address competition-adjacent issues: consideration of how or whether the FTC can use its UMC authority to address firm conduct that is governed by other statutory or regulatory regimes. For instance, firms using copyright law and the Digital Millennium Copyright Act (DMCA) to limit competitors’ ability to alter or repair products, or labor or entry issues that might be governed by licensure or similar laws.
Timing and Structure of the Symposium
Starting tomorrow, one or two contributions to this symposium will be posted each morning. During the first two weeks of the symposium, we will generally try to group posts on similar topics together. When multiple contributions are posted on the same day, they will generally be implicitly or explicitly in dialogue with each other. The first week’s contributions will generally focus on constitutional and administrative law issues relating to UMC rulemaking, while the second week’s contributions will focus on more specific substantive topics.
Readers are encouraged to engage with these posts through comments. In addition, academics, practitioners, and other antitrust and regulatory commentators are invited to submit additional contributions for inclusion in this symposium. Such contributions may include responses to posts published by others or newly developed ideas. Interested authors should submit pieces for consideration to Gus Hurwitz and Keith Fierro Benson.
This symposium will run through at least Friday, May 6. We do not, however, anticipate, ending or closing it at that time. To the contrary, it is very likely that topics relating to FTC UMC rulemaking will continue to be timely and of interest to our community—we anticipate keeping the symposium running for the foreseeable future, and welcome submissions on an ongoing basis. Readers interested in these topics are encouraged to check in regularly for new posts, including by following the symposium page, the FTC UMC Rulemaking tag, or by subscribing to Truth on the Market for notifications of new posts.