Pitofsky Summarizes Past, Present, Future of Antitrust Enforcement

As a result of debates in the 1960s and 1980s over core issues of antitrust, there is an incomplete but rough consensus about enforcement priorities, Federal Trade Commission Chairman Robert Pitofsky said today. The challenge for law enforcers now, he said, is ensuring that application of antitrust law reflects the fast changing global marketplace. Pitofsky highlighted several areas in which the FTC recently has been active after little or no enforcement in the 1980s -- including resale price maintenance and vertical and conglomerate mergers -- and said the Commission stands ready to bring cases against unjustified price discrimination as well. On the other hand, Pitofsky said, there are some parts of antitrust doctrine developed in the 1950s and 1960s that no longer may be appropriate today.

Pitofsky made his remarks at the Antitrust 1996 Conference of the Business Development Associates in Washington, D.C. He said that meeting the challenge of keeping antitrust enforcement appropriate in today’s market sometimes requires experimenting with innovative remedies. For instance, he said, the Commission has been willing to permit an otherwise problematic transaction on the condition that the parties sign an agreement with the Commission designed to ensure a new competitor can enter the market. “By concentrating on the long term competitiveness of the market rather than immediate market effects, some deals that might be struck down on the basis of conventional analysis are conditionally allowed,” Pitofsky said.

Other efforts Chairman Pitofsky said the FTC has undertaken to keep antitrust sensitive to the way business is done in today’s marketplace include:

• eliminating agency rules and regulations that were obsolete or otherwise unnecessary;
  
• shortening from 17 days to 10 days the average time for deciding whether the FTC or the Justice Department will review a merger, thereby making follow-up requests for more information about mergers less burdensome;
  
• adopting a rule to sunset each Commission administrative order against a company after 20 years if there has been no intervening violation of the order, thereby ensuring that old orders do not block pro-competitive initiatives in a dynamic economy; and
  
• initiating a series of hearings to examine the nature of contemporary competition and, in particular, the vast increase in global competition and competition in technology-oriented markets.
  

The FTC staff will issue a report detailing the findings of those hearings, Pitofsky said, adding that the report also will offer some proposals in the following areas:

• the weight that efficiency arguments should be given in merger analysis;
  
• the importance of competition on the basis of innovation in an increasing technology-driven marketplace, and a theory for measuring the value of innovation; and
  
• the legality of international joint ventures.
  

In a final note, Pitofsky commended bilateral agreements providing for various levels of international cooperation in examining international anticompetitive conduct that were achieved by the FTC and the Justice Department prior to his arrival as FTC Chairman last spring. The next and more substantive step -- for example, a commitment among major trading partners of hostility toward hard core cartels -- is more uncertain but nonetheless could be very constructive, he said.

These remarks reflect Pitofsky’s own views and not necessarily those of the Commission or any individual Commissioner.

Copies of Chairman Pitofsky complete remarks are available from the FTC’s Public Reference Branch, Room 130, 6th Street and Pennsylvania Avenue, N.W., Washington, D.C. 20580; 202-326-2222; TTY for the hearing impaired 1-866-653-4261. News releases and other documents also are available on the Internet at the FTC’s World Wide Web site at http://www.ftc.gov