Resurrecting 'A Comprehensive Charter of Economic Liberty': The Latent Power of the Federal Trade Commission
19 University of Pennsylvania Journal of Business Law 645 (2017)
55 Pages Posted: 28 Aug 2016 Last revised: 2 Jul 2017
Date Written: August 26, 2016
After decades of virtual invisibility, monopoly and oligopoly are attracting the attention of leading political and public figures again. Corporate control of markets is now seen as an important source of economic and political ills in American society. These ills include not just higher prices for consumers, but also increased economic inequality and a compromised democracy. This corporate domination of economy and politics was not inevitable, dictated by impersonal forces such as “globalization” or “technology.” On the contrary, it is the result of conscious policy choices initiated in the late 1970s and 1980s that succeeded in focusing antitrust law on the narrow concept of economic efficiency and establishing legal standards friendly to powerful businesses. The weakened antitrust laws have given large corporations freedom to dominate markets through mergers, exclusionary conduct, and restrictive trade practices.
The Supreme Court has the power to undo these changes, but an antitrust revival through the common law process is doubtful and, at best, sure to be protracted. When favorable political circumstances exist, advocates of renewed antitrust enforcement should instead look to the Federal Trade Commission (“FTC”). The FTC has broad policymaking authority under modern administrative law and has quasi-legislative power delegated to it by Congress. The FTC can resurrect antitrust law under the FTC Act’s prohibition on unfair methods of competition. In using this power, the FTC should reject the ahistorical efficiency model for antitrust and embrace the political economic goals articulated by Congress when it created the Commission in 1914. In an era of high inequality, diminished economic opportunity, and elite capture of politics, the goals of protecting consumers, maintaining open markets, and dispersing economic and political power remain as important as ever. To restore competitive market structures, the FTC should establish a series of presumptions against competitively suspicious practices and challenge market power highly damaging to the public.
Keywords: Antitrust, Federal Trade Commission
JEL Classification: K21, K23
Suggested Citation: Suggested Citation