Working Paper No. 04-21:
Looking Forward: The Federal Trade Commission and the Future Development of U.S. Competition Policy
Date Posted: 2004
Abstract (below) | Full text (most recent) on SSRN
This article discusses a strategy for FTC competition policy and a positive agenda to implement the strategy. The antitrust laws and the pro-competition ethic they embody serve as an organizing principle in our country's economy. Antitrust plays a major role in shaping our markets, institutions, and the relationships among market participants. Effective antitrust enforcement may preclude direct, command-and-control regulation of sectors of the economy, avoiding the significant inefficiencies such regulation entails. By spurring competition, antitrust contributes to a market system that provides lower prices, encourages greater innovation, and generates faster responses by business to changing consumer needs and desires.
The first part of the article identifies two antitrust immunities that help protect and foster regulatory growth -- Noerr immunity and the state action doctrine. It details FTC initiatives to limit these immunities to their proper spheres, which will ensure that the ability of antitrust to protect consumers is not unduly restricted. By contrast, expansive applications of antitrust immunities shelter under the cloak of government regulation much anticompetitive conduct that harms consumers.
This part of the article also describes the Commission's competition advocacy role. Today, the FTC acts as a vigorous advocate for competition through its publication of studies and reports, as well as participation in state and federal legislative and regulatory fora. The FTC's advocacy program provides economic analysis and other informed guidance to help policymakers better understand the impact of their decisions in creating, maintaining, or forestalling competitive markets.
The second section of the article states that the Commission's enforcement program should focus closely on the transactions and kinds of practices that have been shown over time to pose the greatest threat of substantial consumer injury. In particular, "there is a general consensus that the practices about which we should most worry occur when competitors stop competing vigorously, making peace to benefit themselves at the expense of consumers." It offers as examples recent investigations into single-firm conduct involving the abuse of government processes.
Finally, the article discusses the importance of using the FTC's full range of capabilities, such as conducting research about the economy, engaging in competition advocacy, and using administrative adjudication to resolve competition policy disputes.