2009 • Volume 34 • Number 2

Shifting and Shrinking Common Ground: Recalibrating the Federal Trade Commission’s and Department of Justice’s Enforcement Powers of Single-Firm Monopoly Conduct

Chris Bernard

In an effort to define unilateral conduct that is violative of the Sherman Act, the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) held joint hearings to establish guidelines for determining when the conduct creates anticompetitive outcomes. At the conclusion of the joint hearings, the DOJ singularly released a report recommending a heightened standard to find single-firm conduct anticompetitive. The standard tacitly endorsed and aimed to extend the United States Supreme Court’s recent interpretations of section 2 of Sherman Act (Sherman section 2). The FTC did not endorse the DOJ’s new standard or its report. The FTC alleged that the DOJ’s new heightened standard incorrectly relied on an overstated consensus among academics and practitioners in the antitrust community and improperly favored the interests of business over those of consumers.

This note argues that this divergence should be expected as the two agencies derive their antitrust enforcement powers from different legislative sources and aim to achieve different ends. The FTC’s inherent focus on consumer interests necessitates a lower standard that would find more conduct in violation of antitrust laws. But because section 5 of the Federal Trade Commission Act (FTCA section 5) derives ancillary powers from Sherman section 2, the DOJ’s recommendation of a heightened standard affects the FTC’s scope of enforcement. Specifically, a heightened DOJ standard will correspondingly heighten the FTC’s standard. In order to mitigate further shifts in favor of business interests, the FTC must continue to vigilantly enforce the edges of FTCA section 5 so that any heightened Sherman section 2 standard does not swallow FTCA section 5’s mandate and leave consumers to fend for themselves.