Comments of the R Street Institute

In response to the Federal Trade Commission’s request for comments dated June 20, 2018, the R Street Institute respectfully submits the following comments. Submitted in advance of the hearings planned to be held, these are intended to identify topics for those hearings, and will likely be supplemented by more detailed analysis afterward.

This comment is one of several that R Street is submitting, pursuant to the Commission’s request of a separate comment per topic. This comment relates to Topic 1 on the state of antitrust and consumer protection law and enforcement, and their development, since the Pitofsky hearings.

Over twenty years ago, FTC Chairman Robert Pitofsky convened a series of public hearings “to determine whether changing economic factors, such as the development of a global economy and the growth of high-tech industries, require adjustments in current antitrust and consumer protection enforcement.” In the time since then, the economy has become increasingly global and dominated by high-tech industries, but these are differences in degree rather than kind. The consumer welfare standard is still the best framework for antitrust and consumer protection law, and the Commission should continue advocating for it both at home and abroad.

However, recent changes do warrant an introspective look into the Commission’s investigation, enforcement and remedial processes. Procedural irregularities were partially to blame for the Commission’s recent loss in the LabMD case and similar process failures could sabotage the Commission’s attempts to protect consumers in the future. With the Commission back to full strength, now is a great time to consider potential reforms. In the upcoming hearings, we therefore encourage the Commission to consider at least the following topics.