Forbes: Wright on FTC v. McWane
Professor Joshua Wright authored a piece in Forbes arguing that the Supreme Court should grant certiorari in the case of FTC v. McWane to reinforce the requirement of rigorous economic proof of anticompetitive practice before calling an antitrust foul.
The Commission’s analysis and the Eleventh Circuit ruling rubber-stamping it provide a vivid demonstration of the fact that exclusive dealing law remains untouched by the economic revolution in antitrust doctrine since the Supreme Court’s decision in GTE Sylvania nearly 40 years ago. The FTC’s approach is not just in significant tension with the modern economic approach to antitrust, it rejects that approach altogether. The FTC made a strategic decision not to present rigorous economic evidence of harm to competition in a manner consistent with what the Supreme Court requires in all other areas of antitrust law. McWane isn’t about just correcting the FTC’s error or the mistaken decision of the appellate panel that affirmed the agency. McWane gives the Supreme Court the opportunity to once again make clear that the advances of antitrust law over the past 40 years – advances that have put consumers first over the special pleas of rivals who have been outcompeted in the marketplace – cannot be disregarded by agencies when inconvenient.
The longstanding requirement that antitrust proof be backed by rigorous economic analysis serves an important function: to prevent anticompetitive abuses of the antitrust laws, including constraining the agencies themselves. McWane represents a dangerous rejection by the FTC of standard antitrust proof requirements. With ever-increasing calls for antitrust agencies to extend their grasp onto more and more of the daily business operations of firms in the modern economy, the value of sending a clear message that economic rigor and proof still matter has never been higher.