This is Part 3 of a four-part series. Start with Part 1 and Part 2.

After Trump v. Slaughter, many scholars, practitioners, and policymakers are wondering whether there remains a need for a Federal Trade Commission. Given the expected alignment between the FTC and the administration, does it make sense to maintain two antitrust enforcement agencies, the FTC and Department of Justice?

Link to The case for keeping the FTC The case for keeping the FTC

Proponents of maintaining the FTC argue that even if it is no longer independent in the traditional sense, the FTC still possesses authorities and characteristics the DOJ does not. For starters, the FTC Act empowers the agency to “prevent unfair methods of competition and unfair or deceptive acts or practices,” as opposed to the Antitrust Division, which polices just the antitrust laws. Of course, whether “unfair methods of competition” prohibits activities that are beyond the reach of the antitrust laws is a matter of some debate.

Second, the FTC Act provides the agency with broad consumer-protection authority, something DOJ lacks. Third, the agency is invested with administrative adjudication powers and rulemaking authority, which are also beyond the powers of DOJ. Finally, given the industries it has investigated over the years, the FTC possesses extensive expertise in consumer protection, privacy, and technology markets. Thus, the justification for maintaining the FTC as a separate and distinct agency shifts from “the FTC is valuable because it is independent” to “the FTC is valuable because it has specialized statutory authorities and expertise.”

Link to The case for consolidation The case for consolidation

The strongest argument for abolition or consolidation is institutional rather than substantive. Critics point out that:

  • Both DOJ and FTC are executive-branch antitrust enforcers.
  • Both are effectively under presidential control.
  • Both review mergers and investigate anticompetitive conduct.
  • Dual agency jurisdiction creates inefficiencies and uncertainty.

From that perspective, Congress could consolidate federal antitrust enforcement within the DOJ Antitrust Division while transferring consumer protection responsibilities elsewhere. Indeed, there is pending legislation in Congress to do just that.

Link to The One Agency Act The One Agency Act

The One Agency Act, introduced as H.R. 384 in the House and S. 1059 in the Senate, would transfer antitrust enforcement authority from the FTC to the Department of Justice and establish DOJ as the sole federal antitrust enforcer. According to the bills’ findings, Congress seeks to promote “vigorous, effective, and efficient enforcement” of the antitrust laws by ending the longstanding system of concurrent antitrust jurisdiction shared by DOJ and the FTC. The legislation asserts that overlapping authority has resulted in wasted resources, hampered enforcement efforts, and unnecessary uncertainty for businesses and consumers.

The proposal is not new. Versions of the One Agency Act have been introduced repeatedly in recent Congresses. Renewed congressional interest, however, combined with broader debates concerning the future role and structure of independent agencies, has elevated the proposal’s significance. One of the key criticisms of the bill is that the FTC’s structure as an independent bipartisan commission arguably provides greater insulation from political change than DOJ, which remains part of the Executive Branch. The recent Supreme Court decision removes that justification. 

Link to What would the One Agency Act do? What would the One Agency Act do?

The legislation would transfer to DOJ virtually all FTC antitrust authority relating to the Sherman Act, Clayton Act, merger review, competition investigations, and related litigation. Existing FTC antitrust personnel, files, records, funding, and ongoing enforcement matters would be transferred to DOJ. Importantly, the proposal would not eliminate the FTC. Rather, the FTC would continue to operate as a consumer protection agency responsible for enforcing laws prohibiting unfair or deceptive acts and practices. The agency’s competition mission, however, would effectively be removed. The legislation would also transfer responsibility for ongoing FTC antitrust investigations, litigation, and administrative proceedings to DOJ, creating a centralized federal enforcement structure.

Time will tell how all this shakes out. But it is probably safe to assume that the future FTC, assuming there is one, will look quite different from the past. And in our series finale, we will explore whether the constitutionality of the FTC is further jeopardized by the recent Supreme Court decision.

If you have any questions, please contact Jay at 202-778-3021 or jlevine@porterwright.com