From Volume 85, Number 3 (March 2012)
We seek both to acknowledge and to begin to explain the FTC’s recent success in this industry, as this success provides a useful model for other agencies, including the DOJ’s working group, which often must consider how to address political interest in their law enforcement decisions. We focus on three areas of intense political interest in which the FTC has avoided implementing what we think are extreme and unnecessary suggestions from congressional and local enforcement officials: (1) merger enforcement; (2) scrutiny of certain business practices; and (3) retail prices. Our analysis is drawn primarily from incidents over the last fifteen years. We believe the FTC has largely succeeded in recent years in limiting the influence of political antitrust for five reasons: (1) continuity across administrations in the standards used to challenge mergers and identify problematic conduct; (2) a commitment to transparency; (3) engaging its critics and a willingness to subject itself to self-criticism through the use of retrospective reviews of its enforcement decisions; (4) a robust research agenda conducted by the FTC’s Bureau of Economics; and (5) an affirmative, pro-competition program, as exemplified by the FTC Office of Policy Planning’s comments on state proposals that would limit or restrict competition or competitive behavior in the petroleum industry.