Antitrust Law Daily Wrap Up, AGENCY NEWS: Ferguson defends firing of FTC Commissioners, sees FTC role in censorship, (Mar 26, 2025)

By Lynn Stanton, TR Daily

Ferguson also said that, according to FTC rules, “if there are fewer than three commissioners, then two commissioners constitute a quorum.”

Federal Trade Commission Chairman Andrew Ferguson defended President Trump’s authority to remove his Democratic colleagues on the FTC, Rebecca Kelly Slaughter and Alvaro Bedoya during Free State Foundation Annual Policy Conference on March 25, 2025. In response to a question from FSF President Randolph May, Chairman Ferguson noted that the Constitution “says that all of the executive power is vested in the president,” including the power to supervise subordinate officers.

While the Supreme Court upheld tenure protection for FTC commissioners in its 1935 ruling in Humphrey’s Executor v. United States, it more recently said in its 2020 ruling in Seila Law v. Consumer Financial Protection Bureau that Humphrey’s Executor only applies to agencies with multi-member executive boards that don’t wield substantial executive power, Chairman Ferguson said. “If FTC doesn’t wield substantial executive power, I don’t know what agency does,” he said.

If the firings of Commissioners Slaughter and Bedoya — who both have said they will challenge their firings in the courts — come before the Supreme Court, the FTC chairman said he expected the Supreme Court would overrule Humphrey’s Executor or would “take the Seila Law approach” and find that today’s FTC is so different from the 1935 FTC that Humphrey’s Executor shouldn’t apply.

He argued that the voters should be able to exercise control over the entire government, including agencies like the FTC, through their election of a president.

Asked about the agency’s ability to function with only two commissioners, Mr. Ferguson said, “We have specific rules that say if there are fewer than three commissioners, then two commissioners constitute a quorum.”

Asked about the FTC’s role in dealing with “censorship” by social media platforms, Chairman Ferguson said, “The FTC is not the censorship police … but we are the market power police. If they are using their market power to degrade their product,” such as by restricting speech on the platform or deplatforming, that would be “a violation of consumer protection laws.”

Chairman Ferguson declined to speak directly to the question of whether DOGE (Department of Government Efficiency) has been active at the FTC, saying, “We don’t generally talk about internal personnel issues.”

He did, however, say the agency has canceled contracts and that “the American people voted for major reform of their government.”

Asked about his approach to the consumer welfare standard in considering enforcement actions, Chairman Ferguson said, “At the end of the day I’m a law enforcer, which means that I need to win in court. If the courts say the consumer welfare standard is critical … then I need to take it into consideration.

He criticized what he described as a tendency to reduce the consumer welfare standard to short-term pricing effects, saying that effects on innovation and effects on workers have always been part of the consumer welfare standard.

Barry Nigro, chair of Fried Frank’s antitrust and competition department and former principal deputy assistant attorney general—antitrust and former deputy director of the FTC’s Bureau of Competition, asked about the chairman’s approach to monopolization cases, especially in fast-changing markets.

Mr. Ferguson said, “I don’t like giant governments, and I don’t like giant monopolies so we have to thread the needle.”

News: Antitrust ConsumerProtection FederalTradeCommissionNews