Antitrust Source, Vol. 8, No. 3, February 2009
7 Pages Posted: 20 Oct 2008 Last revised: 14 Jul 2011
Date Written: October 17, 2008
This paper makes two points. First, Section 5 of the FTC Act, properly construed, is indeed significantly broader and more encompassing than the Sherman Act or Clayton Act. Section 5 violations include incipient violations of the other antitrust laws, and also violations of their policy or spirit.
Second, the best - and probably the only - way to interpret Section 5 in an expansive manner is to do so in a way that also is relatively definite, predictable, principled and clearly bounded. This best can be done if Section 5 is articulated using the consumer choice framework. Without the discipline and constraints provided by this framework, the FTC Act risks becoming unduly standardless. Unless the Commission uses the choice framework, any attempt to construe Section 5 that goes beyond the other antitrust laws risks being viewed as giving undue discretion to the Commission, and for this reason probably will not be permitted by reviewing courts.
The paper also presents three illustrations of how this could make a beneficial difference in practice: situations similar to the N Data case, invitations to collude, and incipient tying and exclusive dealing violations.
Keywords: Antitrust, Federal Trade Commission, trade regulation, collusion, tying, exclusive dealing, consumer choice
JEL Classification: K21, L40
Suggested Citation: Suggested Citation
Lande, Robert H., Revitalizing Section 5 of the FTC Act Using 'Consumer Choice' Analysis (October 17, 2008). Antitrust Source, Vol. 8, No. 3, February 2009; University of Baltimore School of Law Legal Studies Research Paper No. 2008-18. Available at SSRN: https://ssrn.com/abstract=1287218
By Mark Lemley