Fasten Your Seatbelts, The FTC Is About to Take Us on a Rollercoaster Ride

By Richard J. Pierce, Jr., the Lyle T. Alverson Professor of Law at George Washington University and Member of the Free State Foundation's Board of Academic Advisors

In the course of an eighty-minute meeting today, the new 32-year-old Chair of the FTC took a long series of actions—each by a vote of 3 to 2—that dramatically expand the power of the FTC and of its Chair. The actions included:

1. rescinding the bipartisan statement of policy that the FTC adopted in 2015 to interpret the FTC Act of 1914 in a manner consistent with antitrust law, thereby giving the FTC the power to decide that any practice engaged in by any business is illegal because it is unfair;
2. making it clear that the FTC plans to abandon completely the maximization of consumer welfare standard that the Supreme Court has applied as the basis for all antitrust decisions for a century and to replace it with some unspecified new standard;
3. making it clear that the FTC plans to abandon completely the rule of reason that the Supreme Court has been applying in antitrust law for over a century and to replace it with a series of per se rules that the FTC will announce;
4. eliminating virtually all of the procedures that the agency adopted in the 1980s to safeguard the rights of participants in rulemakings;
5. transferring to the Chair the many powers that the FTC had conferred on its Chief ALJ many years ago to assure parties that they would not be subject to the whims of political appointees; and
6. conferring on its staff vast powers to subpoena records and to use other coercive investigative techniques with the approval of only the Chair rather than the approval of the full commission.
   

 

I am scheduled to teach both administrative law and antitrust law this fall and I am beginning the process of writing new editions of my casebooks in each subject. The only thing of which I am certain is that the new Chair of the FTC has eliminated any possibility that I will suffer from boredom any time soon.

[This blog is cross-posted at the Yale Journal on Regulation Notice and Comment website.]