Antitrust Law Daily Wrap Up, AGENCY NEWS: Meador grilled on independence of FTC at nomination hearing, (Feb 25, 2025)
Nominee for open Commission seat pledges to focus on consumers.
A wide range of antitrust and consumer protection topics, as well as questions regarding the independence of the FTC, were on the agenda at the February 25 Senate Commerce Committee nomination hearing for Mark Meador to serve as a Commissioner at the FTC. Disagreements among the senators on “Big Tech” censorship of conservative viewpoints, as well as other issues, sometimes overshadowed the testimony of Meador, an antitrust attorney and former staffer at both the FTC and Department of Justice Antitrust Division. However, Meador made clear during the hearing that, when making enforcement decisions, the FTC should consider whether the agency is actually improving the lives of consumers and should avoid micro-managing. “The way I would view my job if confirmed is to show up each day, working to serve the American people and enforcing the law the way that it has been written,” said Meador.
Shortly after the election, President-Elect Donald Trump named Meador as his pick to fill the vacancy at the Commission that opened up with the departure of former Chair Lina Khan in January. Based on the questioning, despite concerns voiced by Democratic senators, Meador appears prepared to win confirmation.
Independence of the FTC. Senator Ben Lujan (D., N.M.) and other Democrats raised the issue of the independence of the FTC at the hearing. Lujan based his concerns about agency independence on the recent Trump Administration position that it would no longer defend the constitutionality of certain for-cause removal protections provided for FTC commissioners. In Humphrey’s Executor v. U.S., 295 U.S. 602 (1935), the U.S. Supreme Court upheld the for-cause requirement for presidential removal of FTC commissioners. Lujan pointed out that FTC Chairman Andrew Ferguson agreed with the Trump Justice Department’s position. Lujan asked for Meador’s views on the matter.
Meador said that it was inappropriate for him, as a nominee, to weigh in on the issue. However, citing the scholarship of Supreme Court Justice Elena Kagan on presidential administrations, Meador said that “direct presidential control of federal agencies increases democratic accountability.”
“On November 5, the American people gave a very clear signal that they want greater accountability in how the federal government is administered and that is what led to the election of President Trump,” Meador continued. If confirmed, Meador said that he would commit to serve the American people and would do so “by advancing the agenda of the president that they elected.”
Despite his response to questions, other Democrats, including Senator Tammy Duckworth (D., Ill.), continued to press Meador on the issue. She asked if Meador believed the President can fire FTC commissioners at will. Meador reiterated his response that the pending litigation prevented him from commenting.
Commerce Committee Chairman Ted Cruz (R., Tex.) offered his view that Humphrey's Executor was “wrongly decided and should be overruled.” He went on to say that, as he read Article II of the Constitution, “all executive power is vested in the President of the United States.”
Cruz added that he would expect President Trump’s nominees to work to implement his agenda, just as President Biden's nominees worked to implement his agenda.
Big tech censorship. Cruz raised the issue of the FTC’s current probe of Big Tech censorship. The agency is looking into whether tech platforms have denied or degraded users’ access to services based on the content of their speech or affiliations, and whether his conduct might have violated the law. Cruz asked Meador for his thoughts.
Meador said that he thought the FTC was “off to the right start,” collecting information. He added that he looked forward to working with the chair and other commissioners on the effort and that he believed the agency had “a lot of tools at its disposal currently” to address possible censorship by tech companies.
“Should we encounter some harm that can't be solved with the tools the FTC has today,” Meador said that he would be happy to work with Senator Cruz and other members of the committee “to discuss what the path forward might be for additional tools to solve that problem.”
When it came time for questioning from Senator Ed Markey (D., Mass.), the Democrat said that the claim that Big Tech is censoring conservatives was “baseless.” He suggested that the FTC's probe is intended to intimidate platforms to adopt policies that promote conservative speech. He added that he believed that President Trump was trying to turn the FTC into the “Federal Truth Commission” and that that would be “very damaging to our country.”
Senator Eric Schmitt (R., Mo.), a vocal critic of free speech suppression, took issue with Markey’s “baseless” comment.
Markey asked Meador directly if he believed that Big Tech has censored conservative speech.
Meador said that he did not want to prejudge whether Big Tech's actions with respect to purported censorship violated the FTC Act.
Meador pointed to two avenues that the FTC had for potentially addressing censorship: (1) an antitrust law violation could exist if competitors colluded on content moderation standards; or (2) a violation of consumer protection law could exist if the application of terms of service or other promises made to consumers ended up being deceptive.
To protect consumers in this area, Meador expressed his view that the FTC can enforce the antitrust laws to “fully enforce the competition laws to ensure that markets are not unduly concentrated or dominated by a single actor and that consumers have choice.”
“Ultimately, I think we can trust that the market will work if we give it a chance,” continued Meador. “We have to maintain competition so that consumers can take their business elsewhere if they are unhappy with the services that they received.”
Health care. Democratic senators raised concerns around health care competition. During the hearing, Meador said that, if confirmed, he would be committed to ensuring competitive markets in the health care space.
Senator Lisa Blunt Rochester (D., Del.), Senator Lujan, and Ranking Member Maria Cantwell (D. Wash.) all asked about the FTC’s work in holding pharmacy benefit managers (PBMs) accountable.
Meador said that he would want to see the pending final report on the FTC’s Section 6(b) study of PBMs before making any recommendations.
Senator Tammy Baldwin (D., Wis.) inquired about market consolidation in the health care industry, specifically private equity acquisitions of hospitals, physician groups, and nursing homes.
“It's important to look at the competitive effects of a merger regardless of who is purchasing it to ensure that in the aftermath we’re going to have a competitive status quo, that competition will be maintained so that all health care providers feel that need to continue to provide better quality services."
Cooperation with Justice Department, states. Senator Deb Fischer (R., Neb.) raised the issue of past tension over enforcement coordination between the FTC and the Department of Justice.
Meador acknowledged that such disagreements had occurred in the past but said that he was “confident that President Trump has selected leaders for this administration who can work very well together.”
“It is of paramount importance that both agencies be singing from the same hymn sheet, be aligned on policy and enforcement decisions,” he added. “There should really be no daylight between them when it comes to how they are enforcing the antitrust laws.”
“When it comes to merger clearance, we should be focusing on protecting consumers as fast as possible and not trying to get one up on the other agency.”
Senator Amy Klobuchar (D., Minn.), who in the last Congress was the top Democrat on the Judiciary Committee’s antitrust subcommittee, asked about Meador’s views on cooperation with the state attorneys general.
“The FTC has a long history of working productively with state AGs,” said Meador. “If confirmed, I would look forward to continuing those relationships.”
Protecting children. Senators on both sides of the aisle raised questions about protecting children, including children’s privacy. Meador, a father of six, stressed in his opening statement and in response to questioning the importance of protecting children, calling it one of the most important missions for the FTC. Senator Edward Markey (D., Mass.) pushed for buy-in from Meador on his efforts to modernize the Children’s Online Privacy Protect Act (COPPA) rule. The FTC unanimously finalized changes to the COPPA rule in January 2025. Markey continues to push for legislation in the area.
Senator Blackburn (R., Tenn.) also highlighted the importance of protecting children and asked for Meador's assistance in getting legislation passed. She noted the challenges of getting the Kids Online Safety Act through the House of Representatives, despite passage in the Senate.
Artificial intelligence. According to Meador, artificial intelligence is an extremely important topic that will increase in prominence in the coming years. As for the FTC’s role, Meador suggested that the first step for the agency is to view AI through the lens of existing enforcement authorities—unfair and deceptive practices.
“We know that AI is already being used to turbocharge many of those acts,” Meador said. Thus, the FTC must “keep a close eye on that activity to make sure that we’re not letting anything slip through the cracks and should we become aware of something that we’re not able to address with existing authorities to consult with you and other members of the committee to make sure that is resolved.”
Section 13(b) authority to provide redress. Ranking Member Cantwell raised the issue of the FTC’s authority to provide monetary relief to consumers harmed by unfair or deceptive practices. Congress has been attempting to restore the ability to provide consumer refunds since the U.S. Supreme Court ruled in 2021 in AMG Capital Management LLC et al. v. FTC that the FTC’s authority to seek a permanent injunction in federal court under Section 13(b) of the FTC Act did not authorize the Commission directly to obtain court-ordered equitable monetary relief such as restitution or disgorgement.
Meador said that it was incredibly important for the FTC to have the ability to return money to consumers who have been harmed. He offered his assistance to the committee to determine what has worked in the past and what would work best in the future.
“When we have consumers who have been harmed by unfair or deceptive practices, one of the best things that the FTC can do is give the money back to consumers,” Meador said.
Noncompete agreements, other rulemakings. Noncompetition agreements are overbroad and overutilized, according to Senator Todd Young (R., Ind.). However, he expressed his view at that hearing that the FTC, under the leadership of Chair Khan, overstepped its authority as it related to this policy in issuing the noncompete rulemaking. Young suggested that the FTC might still have been headed in the right direction.
Meador agreed with the senator’s position that noncompetes have been overused and abused. He would not comment on the rule itself due to the ongoing litigation surrounding the rulemaking, but he did say that the next step might be for the agency to consider how it can use its traditional enforcement powers to address harms raised by noncompetes.
Senator John Curtis (R., Utah) brought up two proposed FTC rulemakings regarding earnings claims. Curtis took the position that these rules unfairly target the direct selling industry, an important business in his home state of Utah.
Meador would not commit to a specific vote; however, he did pledge to approach the issue “with an open mind.”
Curtis then asked if Meador would give “full and fair consideration” to the concerns of the direct selling industry about the two proposed rules. Meador responded, “absolutely.”
In his remarks, expressing concern with the FTC under the leadership of Chair Khan, Cruz said: “I think Chairman Andrew Ferguson will restore the FTC’s integrity and focus. I hope Mr. Meador can assist in that effort given his deep understanding of competition law, regulatory processes, and consumer protection. The FTC must enforce laws as Congress designed, not engage in ideological experiments.”
MainStory: TopStory Antitrust AcquisitionsMergers ConsumerProtection FederalTradeCommissionNews AntitrustDivisionNews AINews GCNNews