Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Commissioner McSweeny marks 100th Anniversary of FTC, Clayton Acts, (Dec 5, 2014)

By Greg Hammond, J.D.

FTC Commissioner Terrell McSweeny presented the second Keynote address yesterday at the American Bar Association’s Clayton Act 100th Anniversary Symposium in Washington, D.C. In her prepared remarks, entitled “The Clayton and FTC Acts: 100 Years of Looking Ahead,” McSweeny discussed the history of the acts and why they are still the right approach for protecting consumers and competition today.

Briefing recounting the last century of the FTC and Clayton Acts, McSweeny noted that the two Acts were created in response to a growing recognition that the Sherman Act could not safeguard competition and prevent the consolidation of economic power on its own. “One of the chief shortcomings of the Sherman Act was that it was effectively only backward-looking, particularly in the merger context,” she said. “Thus, Congress took the somewhat unusual step—through both the FTC Act and Clayton Act—of enacting legislation that was forward-looking and designed to preempt anticompetitive practices in their incipiency.”

Over the course of 100 years, McSweeny suggests that two concepts remain true: (1) the antitrust framework of the Clayton and FTC Acts have proven adaptable to changing markets and the evolving understanding of competition; and (2) antitrust enforcement remains an inherently predictive and forward-looking exercise.

Jumping to the modern-day approach of Clayton Act enforcement, Commissioner McSweeny noted the general consensus that the likelihood of harming competition is an economic question, and that economic analysis will vary from case to case. Although “precise and sophisticated econometric models” can be extremely valuable tools, McSweeny recognized that party documents and testimony by industry participants can also be incredibly important pieces of economic evidence, along with party documents and customer testimony. “And indeed, the agencies’ Horizontal Merger Guidelines support this approach,” she said.

In wrapping up her remarks, McSweeny suggested that the antitrust framework set forth by the Clayton and FTC Acts remain important today, as well as the FTC’s involvement in providing guidance to analyze complex merger cases. “[G]iven the increase in both the importance and the complexity of economic analysis, the value of an independent and specialized antitrust agency is perhaps even greater than it was when the Clayton Act was passed and the FTC was founded 100 years ago,” McSweeny said.

News: Antitrust FederalTradeCommissionNews