Antitrust Law Daily Wrap Up, AGENCY NEWS: FTC Commissioner Ohlhausen discusses agency design, success, (Nov 6, 2014)

By Greg Hammond, J.D.

FTC Commissioner Maureen K. Ohlhausen gave opening remarks today at the ABA Section of Antitrust Law Fall Forum 2014 at the National Press Club in Washington, D.C. In her prepared remarks, entitled “How to Measure Success: Agency Design and the FTC at 100,” the Commissioner discussed the role the agency plays in promoting competition and highlighted how the FTC’s unique design contributes to its success.

The FTC is “an independent, bipartisan, policy-oriented, research-based, enforcement agency,” said Ohlhausen, which “insulates us to some extent from being buffeted by political winds.” This setup, according to the Commissioner, has resulted in a generally steady and disciplined stewardship of the agency’s merger review mandate and conduct enforcement, which has regularly been a source of broad political support.

Its design also offers strong policy coherence, she said, because of its dual mandate for competition and consumer protection. “These are different, but equally important complementary tools for the agency to help promote fairness in our markets and thereby promote consumer welfare.”

The most important factor to the agency’s success is its capacity and capability, said Ohlhausen. “[T]he agency is doing exactly what it was meant to do—identifying competition problems in the economy, developing proof of the problems, debating the evidence of harm and proper course internally, and then leading by example outside the agency with every advocacy, enforcement, and regulatory tool at its disposal,” she said.

The Commissioner also noted that the FTC was designed specifically to lead others in the continuous development of competition law to correctly reflect changing economic conditions. “The agency’s design gives it the singular ability to identify a potential competition problem in the market, develop empirical research to determine whether the problem actually exists, and then plan and execute a multi-year advocacy and enforcement agenda to rectify the problem,” she said.

Specifically, she noted important contributions the Commission has made in doctrinal grey areas, including: (1) new ways of analyzing dynamic markets, hospital mergers, and potential competition issues; (2) the development of invitations to collude, patent ambush in standard setting as a form of monopolization, the proper extent of competitor collaborations, and reverse payment settlement agreements; and (3) its impact on the development of exemptions and immunities like the filed-rate doctrine, Noerr, and state action.

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