Antitrust Law Daily Wrap Up, ANTITRUST NEWS: FTC chief of staff outlines ‘functional’ framework for antitrust enforcement and compliance, (May 20, 2026)

By Patricia K. Ruiz, J.D.

Graulich in his speech emphasized a fact-driven, contextual analysis focused on real-world market dynamics.

In keynote remarks opening the Informa Connect Antitrust West Coast Conference, Daniel Graulich, chief of staff and attorney advisor for competition to FTC Commissioner Mark R. Meador, urged antitrust practitioners to adopt a “functional” approach to evaluating competitive conduct, emphasizing real-world market dynamics over abstract models or rigid rules. Graulich described antitrust as a process-based inquiry focused on how firms and trading partners actually interact. He said the same contextual framework should guide both enforcement decisions and corporate compliance efforts, with particular attention to business strategy, evidence generated in the ordinary course, and the practical choices available to market participants.

Effective enforcement. According to Graulich, effective enforcement begins with the same practical questions companies ask when developing strategy: the firm’s objectives, expected responses from customers and counterparties, and the way a strategy shapes market interactions. He highlighted Supreme Court precedent requiring antitrust analysis to be “attuned to the particular structure and circumstances of the industry at issue,” and said disagreements in the field often stem from competing ways of defining “competition.”

Graulich framed antitrust law at its core as distinguishing between conduct that creates value for trading partners and conduct that interferes with their ability to make informed choices among alternatives. He stressed that, while this distinction can appear straightforward at a high level, most real-world cases fall between clear lawful and unlawful extremes, requiring detailed factual analysis. Rejecting static or purely structural views, Graulich described competition as a dynamic process rather than an end state. From this perspective, the key inquiry is not abstract efficiency or concentration levels but the conditions under which transactions occur—specifically, what options are available to market participants, how those options are presented, and whether they can be meaningfully exercised.

Focus on institutional context. He underscored that antitrust analysis should focus on “institutional context,” including regulatory frameworks, contractual arrangements, and supply chain structures that shape commercial behavior. These systems depend on baseline expectations such as accurate representations, good-faith dealing, and procedural integrity; disruptions to those norms can increase transaction costs and reduce economic activity.

Graulich also warned against analyzing business conduct in isolation. Individual actions—such as discounting practices or statements made in regulatory proceedings—may appear benign on their own but can take on significance when combined into a broader strategy. In particular, he noted that integrated conduct by a dominant firm could limit rivals or impair customers’ ability to make informed decisions, even where nominal alternatives remain available on paper.

Holistic inquiry into conduct. The speech drew parallels between enforcement agencies and corporate compliance teams, describing both as engaged in a “holistic” inquiry into how conduct operates in context and what motivates it. Graulich said well-designed compliance programs should be forward-looking and enterprise-wide, grounded in a company’s business lines, relationships, and strategic objectives. He emphasized that assessing antitrust risk involves practical considerations, such as how a proposed action affects market position, how customers will respond, and whether viable alternatives remain available.

On predictability, Graulich acknowledged concerns that a contextual approach could reduce clarity but argued that predictability arises from consistent application of legal standards to facts, not from overly simplified rules. He said reliable analysis depends on evidence generated in the ordinary course of business, including internal communications, board materials, and strategic planning documents, which capture the rationale behind conduct more accurately than retrospective explanations.

Takeaways. In closing, Graulich offered four practical takeaways. First, antitrust risk tends to concentrate where a firm’s market position, relationships, and strategic objectives intersect in ways that could limit others’ options. Second, analysis should focus on substance over form, evaluating how elements of a strategy fit together rather than assessing them in isolation. Third, enforcement and compliance reviews should consider patterns of conduct across transactions and practices, not just discrete actions. Fourth, a functional approach grounded in business realities aligns antitrust analysis with the day-to-day considerations firms already manage.

Ultimately, Graulich said, both enforcement and compliance converge on the same task: a rigorous, fact-driven assessment of how business strategy operates in the marketplace and affects the ability of trading partners to engage in free and informed exchange.

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