Deepening Fault Lines: Diverging Antitrust Enforcement at the DOJ and FTC

Abstract

The U.S. Department of Justice’s Antitrust Division and the Federal Trade Commission have set their sights on revitalizing antitrust enforcement over the last few years, while simultaneously leaning into their disparate powers and authorities. As the FTC’s increasingly aggressive use of its purported authorities has prompted courts to scrutinize its actions more closely than ever, yet another enforcement-related question of whether dual enforcement is viable—long shunted to the backburner—becomes increasingly difficult to ignore. The Division's and the Commission's powers are largely coextensive, but not entirely so. The duality has proven tenable, if imperfect, for decades. But the fault lines between the Agencies risk becoming increasingly fractious, and the Supreme Court is simultaneously weighing whether the very powers the Commission is now seeking to exploit are built upon faulty foundations—all of which serves to highlight the question of whether this dual-enforcement system is truly feasible in the modern world or whether the inherent and irreconcilable differences render the system no longer justifiable.

Keywords: antitrust, competition law, federal trade commission, department of justice, regulation