US FTC’s McSweeny pushes for changes in antitrust enforcement practices and law

31 January 2017 9:55am

6th October 2016. By Claude Marx

A modernization of antitrust laws is necessary to reflect economic and social changes, and enforcement agencies need more resources to do their job, US Federal Trade Commission Commissioner Terrell McSweeny said Thursday.

McSweeny said in a speech at a conference* that there is a “growing consensus that there is a troubling decrease in competition,” and this requires enforcement agencies such as hers to retool their strategy, increase enforcement by other agencies, and have Congress give the FTC and the US Department of Justice more power and personnel.

She said the agency should take more risks in challenging mergers and not fear that courts will criticize the government for being over-inclusive by alleging violations of antitrust law in cases where competition isn’t being hurt.

Since the 1980s, conservative legal thinkers have pushed a more cautious approach, focusing on the need to avoid so-called “false positives.”

She also said there needs be a rethinking of some of the conventional wisdom of antitrust, including the theory that a monopolist can’t use tying to gain an advantage in a non-monopolized market — the so-called single monopoly profit theory. She said she disagrees with proponents of a broad interpretation of that theory who contend that there is no need to worry about the effects of tying — selling one product or service as a required addition to another product or service

She cited a conclusion by Harvard Law professor Einer Elhauge that this single monopoly profit theory is “wrong in most cases.”

McSweeny said the agencies should be especially vigilant about ensuring more competition in the technology field and said they “should not turn a blind eye toward anticompetitive behavior in high-tech markets simply because we cannot predict the future with certainty.”

In a subsequent interview, McSweeny declined to guess how the increased attention to antitrust policy in the presidential campaign — Democratic nominee Hillary Clinton gave a speech on Monday calling for more aggressive enforcement — would manifest itself in policy changes.

“It’s too soon to predict who will be in the next administration,” said McSweeny, a Democrat who is a possible chairwoman if Clinton wins.

McSweeny also said Congress should give the FTC and Justice Department more money for enforcement and should repeal some antiquated laws that shield certain industries from antitrust laws. She cited the McCarran-Ferguson Act, which exempts the insurance industry from most federal laws, including antitrust.

She also said the agencies need more personnel and noted that the Obama administration sought a 10 percent increase for the FTC and the Justice Department’s antitrust division for the fiscal year that began Oct. 1.

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