Antitrust Enforcement at the Federal Trade Commission: In a Word -- Continuity

The American Bar Association Antitrust Section Annual Meeting

Chicago, Illinois

Date:
By: 
Timothy J. Muris, Former Chairman

Introduction

Good afternoon. I am delighted to be here, and I am honored to be back at the FTC as its Chairman.

As many of you may know, this is my third tour at the FTC. I first served as Assistant to the Director of the Office of Policy Planning and Evaluation in the mid 1970s. I returned in 1981 to serve as the Director of the Bureau of Consumer Protection, and then became Director of the Bureau of Competition in 1983. I am fully committed to the institution and its mission of protecting consumers through actively enforcing our antitrust and consumer protection laws. I return as Chairman with great anticipation of the challenges and excitement that lie ahead.

There has been considerable speculation about possible changes at the Commission. Some predicted that there would be substantial continuity from the previous administration, with changes mainly at the margins. Others agreed that there would be continuity but hedged their bets - they were uncertain how wide the margins might be. Others predicted - perhaps wishfully - that changes would be more dramatic. For example, they anticipated substantially reduced merger enforcement. I expect the last group will be disappointed. A vigorous enforcement program is necessary to fulfill the agency's mission to protect consumers. The first group has it right. Continuity will be the norm, with changes at the margins.

We have assembled a first-rate staff. In the operating Bureaus, we have: Howard Beales, Director of the Bureau of Consumer Protection; Bill Kovacic, General Counsel; David Scheffman, Director of the Bureau of Economics; and Joe Simons, Director of the Bureau of Competition. All have extensive experience in their fields; each has substantial prior experience at the FTC; and each has extensive post-FTC experience related to the agency's mission. Joining this group are Anna Davis, Director of Congressional Relations, who also previously worked at the FTC, Rosemarie Straight, who remains as Executive Director, and two newcomers: Ted Cruz, who is our new Director of Policy Planning, and Cathy MacFarlane, who will head our Office of Public Affairs. I appointed these individuals because of their superb qualifications and, like me, they are committed to the FTC and its mission.

Today, I will sketch a vision of the landscape ahead. Along the way, I will retrace the origins of some of the policies that I expect to follow. You will see that continuity should not come as a surprise. There is much ground to cover, and I will touch on each topic only briefly. You will hear more about each of these subjects in the coming months.

Before continuing, I should repeat the standard disclaimer that my remarks today are my own, and not necessarily those of the Commission or of any other Commissioner.

I. Why Should We Expect Continuity?

Antitrust has become an area of bipartisan cooperation. Although there are disagreements about specific cases, there is widespread agreement that the purpose of antitrust is to protect consumers, that economic analysis should guide case selection, and that horizontal cases, both mergers and agreements among competitors, are the mainstays of antitrust. Moreover, today there is bipartisan recognition that antitrust law is a way of helping to organize our economy. A freely functioning market, subject to the rules of antitrust, provides maximum benefits to consumers.

Bob Pitofsky's tenure as FTC Chairman was in that vein of bipartisanship. In fact, he and his appointees praised the leadership of his predecessor, Janet Steiger, who was appointed by the first President Bush. Bob was clearly one of the most effective Chairmen in the history of the Commission.(1) Of course, Bob brought his intellect, scholarship, and management skills to the job. But a key reason for Bob's success as Chairman was that his agenda and enforcement policies reflected the bipartisan consensus. Those policies were not significantly different from those of his predecessor in the previous administration. There were changes at the margins, and, as would any new chairman, Bob faced some new challenges. That is my message today - there will be some changes at the margins, but mainly there will be continuity. There will not be a sea change in enforcement.

Bob Pitofsky set a high standard, and he should be applauded for his efforts on behalf of consumers. He and I may differ on certain points, but I, too, intend to characterize my tenure by what I do, rather than what I do not do. Let me turn to some specific areas of antitrust.

II. Merger Enforcement

This year is the 25th anniversary of the passage of the Hart-Scott-Rodino Act.(2)

The passage of HSR and the resulting evolution of merger enforcement policy has undoubtedly been the most important statutory development in antitrust for several decades. Like antitrust enforcement generally, merger enforcement is about protecting consumers from unwarranted exercise of market power. As the Chairman of the FTC, I take that mandate very seriously. I do not see significant change in basic merger enforcement from the Pitofsky Commission. We will apply the Merger Guidelines(3) to the available facts, as did the Pitofsky Commission. Problematic mergers will face the same hurdles they did during the 1990s.

A. Evolution of Merger Policy in the 1970s and Early 1980s

Let me add some historical perspective on why continuity is appropriate. By the time of the General Dynamics decision in 1974,(4) it was clear that merger policy would have to change to reflect new realities. Cases like Von's were relics of the past.(5) Economic research debunked the fears of market concentration at even low levels.(6) Rigid reliance on concentration statistics and structural presumptions would no longer suffice; we would have to look at the competitive dynamics of the market. There was growing awareness that we live in a global economy - market boundaries don't necessarily end at the U.S. border. And there was a growing realization that efficiencies are important.

Those changes were reflected in 1982 Merger Guidelines,(7) promulgated during Bill Baxter's regime at the Antitrust Division. The new Guidelines were a milestone in antitrust. They incorporated an economically sound analytical structure that was workable in practice and provided clear guideposts for businesses and antitrust practitioners.

The 1982 Guidelines laid the foundation for today's merger enforcement. Although improved over the years, the core analytical structure remains the same. The Guidelines have stood the test of time and have become even more influential. The courts increasingly follow them, and they have greatly influenced merger enforcement across the world. Bill Baxter is, unfortunately, no longer with us, but his legacy lives on. His Guidelines were applied by Bob Pitofsky's Commission, and I expect to do the same.

In fact, I was one of the early implementers of the 1982 Guidelines' analytical structure. We were an active, even proactive Commission back then. I became Director of the Bureau of Competition in 1983, and during my 2½ years in that position, we dealt with matters such as:

  • Texaco-Getty(8) and SoCal-Gulf(9) - two transactions that, at that time, were considered large oil mergers;
  • One of the first consumer branded products mergers analyzed under the Guidelines;(10)
  • One of the first instances of "competing mergers" - two mergers in the carbon black industry;(11)
  • Warner-Polygram, a large merger in the entertainment industry;(12)
  • The GM-Toyota joint venture in California;(13)
  • Pilkington Brothers, a flat glass merger that involved a non-domestic company.(14)
  • Allied Corp., a merger involving avionics for general aviation aircraft.(15)

These were important cases, and their influence is present today. Our analysis of the Texaco/Getty and SoCal/Gulf transactions, and the 1982 FTC Oil Merger Report,(16) laid out most of the basics of how the FTC has analyzed much larger oil mergers over the past decade. The consumer products merger investigation was one of the first to use statistical methodologies to analyze substitutability of branded products. That analysis by our Bureau of Economics stimulated further research and paved the way for today's major cottage industry of economists doing econometric analyses of consumer demand for branded products.

Warner-Polygram presented very complex issues in analyzing coordinated interaction in a dynamic industry that thrives by constantly developing new, differentiated products. Both Warner-Polygram and the two carbon black mergers were successfully challenged in court. The Warner-Polygram decision has been very influential in the Commission's ability to obtain preliminary injunctions under Section 13(b) of the FTC Act.

Finally, the Commission's lengthy, very extensive investigation of the GM-Toyota joint venture was important, both for the U.S. automobile industry and American consumers, and in guiding later thinking about joint ventures. Our examination of the potential efficiencies of the joint venture was controversial at the time. Today, however, there are few who would argue with allowing the venture to proceed.

B. The Importance of Facts

Those of you who were involved with mergers in those early days following the 1982 Guidelines know that we all had a lot to learn. This was particularly true of the Guidelines' new approach to market definition. We also quickly learned that merger analysis under this new regime was incredibly fact intensive.

John Adams, one of the Founding Fathers of this country, once discussed facts in a manner directly relevant for us today. In 1770, Adams defended the British officer and soldiers accused of murder in the Boston Massacre. He said:

Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.(17)

Stubborn facts are what changed antitrust law and enforcement after the 1970s. For example, a 1983 Washington Post editorial on the GM-Toyota joint venture stated:

[T]he rules of antitrust law as they had developed [in the 1960s and 1970s] were undermined by observation of how the world works.(18)

We learned long ago that facts are stubborn things in merger enforcement. No economic theory or story-based advocacy about a merger will give you a reliable answer unless the facts firmly support it. This is absolutely as it should be. This is why no change in Administration or change in faces in the agencies will significantly change merger enforcement. Just as we have the burden of proving that a merger likely will be anticompetitive, you will need to demonstrate with sound, stubborn fact-based analyses the claims that you make.

C. Maintaining the Basic Approach

By saying that there will be continuity, I do not mean to suggest that I agreed with every specific enforcement action of the Pitofsky Commission; I did not. Overwhelmingly, however, when the parties pushed the Commission into court, the Commission won. So, how stubborn do your facts have to be? I agree with the approach of the Pitofsky Commission. If a merger appears problematic, the facts on your side have to be stubborn enough to convince a federal judge that we cannot obtain a preliminary injunction.

I know that some in the press and the Bar think that the Bush administration will relax antitrust enforcement. I urge them, and you, to watch what we do. I can tell you unequivocally that if you come in with transactions that would not fly in the past, you are likely to "crash"unless you have compelling, stubborn facts on your side. To some of you, let me say it more bluntly. A few members of the merger bar have been telling the press that we are going to have more relaxed standards. Those folks will be doing their actual or potential clients a big disservice if those clients act on that presumption. If you are an experienced merger attorney, you know a problematic merger when you see it.

D. Attention to Competitive Effects Theories

Staying the course does not mean that we will stop thinking about the theories we apply. Theories of anticompetitive effects have evolved over time, and will continue to do so. For example, although we have always had what could be called "unilateral effects" theories, they have evolved, and they have been more widely applied since the 1992 revision of the Guidelines.(19) Some question whether the agency has gone too far in applying unilateral effects theories. One argument is that we may be in danger of returning to antitrust that focused on the elimination of competition between the parties to the merger, rather than competition at the market level. I would not go that far. It is too early to tell whether theory has outstripped reality. I do agree that we should be sure that we have the facts to apply a unilateral effects theory.

The analysis of unilateral effects often relies substantially on econometric analysis of scanner data. We need to understand better the potential limitations of the data. Although the analysis is highly complex, the theories underlying merger simulation models are based on simple and restrictive assumptions. These can be useful tools, but we are looking at them more closely to understand better their strengths and limitations.

Coordinated interaction theories have also evolved. In recent years there has been more focus on theories of coordinated interaction involving alleged price discrimination. This is an area in which facts are particularly important. We all understand that price differences, themselves, are not evidence of price discrimination. Price discrimination requires, among other things, "systematic" pricing policies that result in evidence of actual transaction prices that is consistent with a theory of price discrimination.

E. Areas Where Enforcement Policy is Still Evolving

Although the basics of merger enforcement are firmly in place, there are important substantive areas that are still evolving: "high tech"mergers involving significant innovation issues; efficiencies; and remedies.

High Tech Mergers

Merger analysis in "high tech" industries is not fundamentally different than in other industries. The basic Guidelines analysis can be applied. We should proceed, however, cognizant of our lesser experience in high tech industries. Moreover, the high tech arena, by its nature, is constantly changing. New high tech industries, often with new technical issues, continue to be born and to change.

One aspect of high tech may warrant especially close scrutiny. The fierce competition for success in these industries often results in the "winner" enjoying a (perhaps short-lived) monopoly. We should be especially reluctant to allow those firms to merge with actual (or potential) competitors. This was part of the basis for my criticism of the Clinton Antitrust Division's failure to challenge the Microsoft-Web TV merger.(20)

Given the relative newness of applying the Guidelines to high tech industries, we should assess the effects of our enforcement actions, as well as monitor the outcomes when we decide not to intervene. We will look for opportunities to use the Bureau of Economics in these retrospective examinations to help inform future decisions.

Efficiencies

The agencies have come far in recognizing the significance of merger efficiencies. In 1980, I wrote an article arguing that the agencies should recognize the relevance of merger efficiency claims.(21) Today, there is no question that they are relevant, as the 1992 Horizontal Merger Guidelines reflected. The 1997 revision of the Efficiencies section of the Guidelines further improved the analytical treatment of efficiencies. And a growing number of courts now recognize the relevance of efficiency claims.

Despite this progress, the treatment of efficiencies in merger enforcement has room for further improvement. I have argued that the agencies should recognize additional classes of efficiencies, and that their argument in court is still much too hostile.(22) The analysis will continue to evolve based on facts and study. These are changes at the margin, however. From my experience in the 1980s and as a consultant, few cases will turn solely on the efficiency issue. The bedrock principle of merger enforcement remains the same - protect consumers. In efficiencies, as in any other analysis, the facts are crucial. Efficiency claims that are not firmly based in stubborn facts will be given no weight.

Remedies

The Commission's recent posture on merger remedies is controversial within the bar. Merger remedies, like other aspects of antitrust, have evolved during the last 20 years. During much of the 1980s, the agency resolved cases relatively less frequently with settlements. When we did settle, however, we insisted on strong structural relief. Our lengthy review and negotiations for remedies in the Texaco-Getty matter in 1984 led some lawyers for Texaco to suggest that we were a distraction from their goals. That view of our role is misinformed. An effective remedy is a fundamental part of merger enforcement. Now, as then, we must protect consumers, not help you get your deal through at consumers' expense.

One of the techniques the Commission has recently used is an up-front buyer of divested assets. Much of the criticism in the Bar has been that the process of identifying and vetting an up-front buyer slows down the settlement process. A countervailing consideration is that an up-front buyer can provide added assurance that a settlement will work as planned. It may be particularly useful when proposed divestiture involves an asset package that constitutes less than an ongoing business, whose viability is somewhat uncertain, or assets that may deteriorate over time. There is thus an appropriate use for up-front buyers on occasion.

An up-front buyer is not an end in itself, of course. Our principal goal is to protect consumers. We will require a divestiture that will likely create a viable business entity (rather than a creation of lawyers) to resolve the competitive problems posed by the merger. We may be confident before identifying one specific buyer that acceptable candidates exist. As with so much else of modern merger analysis, the issue is highly fact specific.

F. The Merger Review Process

As I noted earlier, this year marks the 25th Anniversary of the Hart-Scott-Rodino Act. A lot has changed. When I became Director of the Bureau of Competition in 1983, the merger review process under HSR was still evolving; we were still on the learning curve. Today, we have a well-functioning program in place - not perfect, as all of you will agree, but it does a remarkable job. We have a smaller professional staff than we did in the early 1980s, as well as fewer support staff, but we review many times more merger filings. We have highly skilled and dedicated lawyers and economists, and an excellent senior management team. The Bureau of Competition and Bureau of Economics work closely together. Merger review is firmly grounded in facts and sound economic analysis.

But as I said, not all is perfect. Thousands of mergers are filed each year, and some questionable transactions may slip through the screening process. The recent amendments to the HSR Act, which increased the filing threshold, may have made it more likely that we will miss a few problematic transactions. I have directed BC Director Joe Simons to increase our efforts in reviewing the business press and other sources to identify potentially problematic mergers. If you have clients that are concerned with a transaction, let us know - whether or not it has been consummated. We are quite prepared to go after consummated mergers or mergers that are too small to require an HSR filing. In addition, we will continue to vigorously pursue parties who do not comply with the procedural requirements of the HSR regulations, our first line of defense against anticompetitive mergers. Some of you may recall that, during my tenure as Bureau Director, we brought the first 7(a) case.(23)

Let me turn now to 2nd Requests. The burdens of the 2nd Request process continue to be a concern. Although the agencies have made substantial efforts to reduce the burden, there is room for further improvement. The number of boxes of documents submitted for a typical 2nd Request has sky-rocketed. Where once we had hundreds of boxes, in some matters we now have thousands of boxes. Of course, some mergers are very complex and tend to involve volumes of documents. Moreover, I have worked on enough mergers to know that you are not always trying to make the agency's job easy. In any event, given the burdens involved for both the merging parties and agency staff, we need to find ways to do our jobs more efficiently. We need to ensure that what you submit is as helpful as possible to our doing our job of protecting consumers. We will have more to say about this in the coming months.

We are also trying to make merger investigations more efficient in other ways. As we all know, the statutory deadlines are almost never binding for a problematic merger. Because the deadlines are too short to analyze a complex merger fully, we usually arrange an accommodation for more time. Nonetheless, merger investigations, on average, probably take longer than necessary. We will try to expedite the process further.

Improved communication is part of the answer. Both sides have to join issue on the critical aspects of a merger. If a merger appears problematic, the burden is on the parties to convince us that there are no problems or that any problems can be fully remedied with a suitable divestiture. Without jeopardizing our position in potential litigation, we can probably communicate more clearly to the parties the bases of our concerns. Joe Simons and I are working to develop and implement procedures to improve the merger review process without compromising the ability to do our job.

In that vein, we will be conducting "best practices" sessions with the Antitrust Division, beginning with 2d Request and remedies issues, to strengthen both of our agencies. In addition, the Bureau of Competition is planning a series of "brown bag" lunches in Washington, D.C., and some of our regional offices to discuss your concerns about remedies. We hope that these steps will offer additional bases for improving the merger review process.

III. International Antitrust

Let me turn to a new topic: competition policy in a global economy. Increasingly, U.S. companies and the U.S. antitrust agencies interact with our competition law counterparts. These interactions raise a multitude of procedural and substantive issues. The FTC is certain to give increasing attention to these international issues. Among other matters, we will:

  • Continue information exchanges with foreign antitrust enforcement authorities to promote the effective handling of particular matters involving multiple jurisdictions;
  • Devote greater efforts to bi-lateral discussions with our foreign counterparts to establish a consensus about "best practices" in process and substantive analysis;
  • Continue to participate in multinational initiatives (OECD, WTO, Global Competition Initiative, and others) to help streamline antitrust procedures and encouraging acceptance of the best analytical methods; and
  • Continue our efforts to assist transition economies to build sensible competition policy and consumer protection systems.

Our General Counsel, Bill Kovacic, has established within his office an international coordination function focusing on technical assistance to transition economies. To manage this function, I have appointed my long-time friend Jim Hamill to be Senior Counsel for International Affairs in the General Counsel's office. The Bureau of Competition's International Division, headed by Randy Tritell, will continue to handle liaison with foreign antitrust authorities and multinational institutions.

IV. Non-Merger Enforcement

Let me move to a brief discussion of non-merger enforcement. There are several important issues here, such as competition in pharmaceuticals and intellectual property issues. As in the case of merger enforcement, facts are critical. Our cases will be empirically grounded. Sound theory is important, but it must fit the facts of the case. (24)

My interest in non-merger enforcement should not be surprising. The Commission was very active in pursuing non-merger matters when I was the Director of the Bureau of Competition in the early1980s. During my tenure, we put 17 non-merger cases in "Part III" administrative litigation. Important cases such as TICOR,(25) Superior Court Trial Lawyers Ass'n,(26) Mass Board,(27) Detroit Auto Dealers,(28) Taxicabs,(29) and U-Haul(30) were among that group. Each case that we litigated was decided against the respondents, including three that went to the Supreme Court.(31)

More recent developments confirm the importance of a strong non-merger agenda. We used to believe that antitrust counseling, at least for major companies, would generally deter anticompetitive conduct. We have learned, however, from ADM,(32) the vitamins case,(33)numerous other price-fixing cases, and from Microsoft,(34) that the antitrust agencies must aggressively police competitive conduct. In a recent matter the Commission issued Complaints because there was reason to believe that competitors engaged in per se violations.

Let me now explore a few areas of current interest.

A. Hatch-Waxman Issues

The Pitofsky Commission was very active in looking at potential abuses of the Hatch-Waxman Act, which was intended to promote generic competition in the pharmaceutical industry. We are continuing those efforts. The competitiveness of the pharmaceutical industry is very important to American consumers. We have a number of active, ongoing investigations, and we are also conducting a study of Hatch-Waxman related issues. As you probably know, a number of legislative proposals have been made to modify Hatch-Waxman to curb the alleged abuses. Our study and our experience in investigating these issues may provide some guidance for potential modifications of the Act.

B. Horizontal Emphasis

It is uncontroversial that horizontal activities should be a major focus of non-merger enforcement. You can be sure that we are going to be very active in finding, investigating, and bringing actions against anticompetitive horizontal activities. We already have a number of new initiatives under way. The professions and health care are areas of particular interest.

One of the issues we will be dealing with is the legal standard for judging some of these horizontal agreements. When I was at the Bureau of Competition in the 1980s, we developed a truncated rule of reason analysis that the Commission adopted in Massachusetts Bd. of Registration of Optometry.(35) Mass Board applied a structured analysis that avoided a rigid per se/rule of reason categorization. It provided an intermediate form of analysis for inherently suspect restraints that appear likely, absent an efficiency justification, to restrict competition and reduce output. The Commission decided not to apply the Mass Board methodology in the California Dental Association case, opting instead to use the traditional per se/rule of reason categorization. It held the advertising restraints in that case to be unlawful under both the per se standard and an abbreviated rule of reason analysis. The Ninth Circuit affirmed under the abbreviated rule of reason theory, but the Supreme Court reversed, holding the Commission's analysis to be too abbreviated. What is required, said the Court, is "an enquiry meet for the case, looking to the circumstances, details, and logic of a restraint."(36) It therefore teaches that facts, not rigid categories, should guide the analysis.

In light of CDA, we have more work to do to develop a workable approach that is consistent with the law. I believe the Commission would have prevailed in that case had it been tried under the Mass Board standard, with record evidence to explain why the advertising restraints should be analyzed under a truncated approach. That evidence was available. There is plentiful empirical evidence demonstrating the deleterious effects on price and quality flowing from restrictions on professional advertising, but the record contained precious little of that evidence. Regardless of the precise form of truncated analysis one chooses to use, the key to prosecuting such a case successfully is to build a record that contains support for claims of probable anticompetitive effect.(37)

Two other issues we will be looking at are the Noerr-Pennington and State Action exemptions. You may recall that we brought cases involving these areas during my stint as Competition Bureau Director in the 1980s - Ticor and U-Haul. The Transition Report prepared by the ABA Antitrust Section stated that the state action exemption still presents concerns from a competition policy standpoint.(38) The Report recommended a reexamination of the scope of the exemption. We are doing that.

C. Monopolization

Some of you may be wondering what my position will be on monopolization cases. Again, it is the stubborn facts that count most. Where we can show that exclusionary conduct reasonably appears capable of making a significant contribution to creating or maintaining monopoly power, we will not hesitate to act.(39)

The strong appellate decision in Microsoft re-confirms that improper conduct by firms with monopoly power can give rise to substantial antitrust issues. The Commission will not back away from these types of cases, but they must be economically and factually sound. For example, in the U-Haul case that we brought in 1985, the complaint alleged that U-Haul and its parent AMERCO attempted to monopolize the market for rental moving equipment by engaging in a series of anticompetitive acts against a competitor in a Chapter 11 reorganization proceeding, Jartran, and that the respondents "in fact injured competition by jeopardizing and substantially delaying Jartran's emergence as a reorganized company, capable of resuming its role as an effective competitor."(40)

D. Process Issues

We have always had a problem at the FTC with the speed and efficiency of non-HSR investigations. Unlike HSR, we do not have a statutory clock that pushes such cases. I have directed Joe Simons to develop and implement new procedures and controls. We want our non-merger enforcement activities to be "timely, likely and efficient."

V. Non-Enforcement Initiatives

One of the best innovations of the Pitofsky Commission was to be active in holding public hearings and workshops on substantial consumer protection and competition-related issues affecting the American economy. These proceedings help us develop a better understanding of new economic and business developments, and their consumer-related implications, in a non-adversarial process, and are useful to the Commission, the Congress, and others, by informing policy and possibly future enforcement decisions. We have already continued the practice of sponsoring these proceedings with our just concluded conference on Gasoline Prices last week.(41)There will be follow-up hearings on this issue over the next several months, and we will have similar hearings on other antitrust and consumer protection issues over the next few years.

The FTC also has a long and distinguished history of being an advocate for competition and consumers in connection with federal, state, and local regulation. This is called our "Advocacy Program." We will be selective in choosing where to intervene - our resources do not permit us to be everywhere, nor would that make sense - but we will be active. In a related vein, we will look for suitable opportunities to be a competition policy advocate as an amicus curiae in private litigation. Those cases will be limited to situations where we can make a contribution on important legal issues.

Conclusion

Protecting consumers is the purpose of the antitrust laws and the mission of the Federal Trade Commission. I fully support our mission and a vigorous pro-consumer antitrust enforcement agenda. The "stubborn facts" of our actions will not support the preconceptions of some that we are here to put the brakes on antitrust. I look forward to working with the ABA to ensure that our antitrust enforcement is the best it can be to protect American consumers.

Endnotes:

1. Timothy J. Muris, Chairman Robert Pitofsky: Public Servant and Scholar, Remarks Before the American Antitrust Institute, Second Annual Conference (Washington, D.C., June 12, 2001), available at </speeches/muris/muris010612.htm >.

2. 15 U.S.C. §§ 18a (1994 & Supp. V 1999).

3. U.S. Department of Justice and Federal Trade Commission, Horizontal Merger Guidelines (1992, revised 1997), reprinted in 4 Trade Reg. Rep. (CCH) ¶¶ 13,104 (1997), available at </bc/docs/horizmer.htm>.

4. United States v. General Dynamics Corp., 415 U.S. 486 (1974).

5. United States v. Von's Grocery Co., 384 U.S. 270 (1966).

6. See Timothy J. Muris, GTE Sylvania and the Empirical Foundations of Antitrust, 68 Antitrust L.J. 899 (2001).

7. U.S. Department of Justice, Merger Guidelines (1982), reprinted in 4 Trade Reg. Rep. (CCH) ¶¶ 13,102 (1982).

8. Texaco, Inc., Dkt. C-3137, 104 F.T.C. 241 (1984).

9. Standard Oil Co. of California, sub nom. Chevron Corp., Dkt. 3147, 104 F.T.C. 597 (1984).

10. In the end, the Commission did not challenge the merger, but the econometric analysis in that case remains significant, as explained below.

11. Columbian Enterprises, Inc., Dkt. 9177, 106 F.T.C. 551 (1985); Bass Brothers Enterprises, Inc., Dkt. 9178, 108 F.T.C. 51 (1986); FTC v. Bass Bros. Enters, Inc., 1984-1 Trade Cas. (CCH) ¶¶66,041 (N.D. Ohio 1984).

12. Warner Communications, Inc., Dkt. 9174, 108 F.T.C. 105 (1986); FTC v. Warner Communications, Inc. 742 F.2d 1156 (9th Cir. 1984).

13. General Motors Corp., Dkt. C-3132, 103 F.T.C. 374 (1984).

14. Pilkington Brothers, P.L.C., Dkt. C-3136, 103 F.T.C. 707 (1984).

15. Allied Corp., Dkt. C-3157, 105 F.T.C. 381 (1985).

16. Federal Trade Comm'n, Mergers in the Petroleum Industry: Report of the Federal Trade Commission (1982).

17. Daniel B. Baker, Political Quotations: A Collection of Notable Sayings on Politics from Antiquity Through 1989, 52 (1990).

18. The Washington Post, Dec. 5, 1983, at A-10.

19. U.S. Department of Justice and Federal Trade Commission, Horizontal Merger Guidelines (1992), reprinted in 4 Trade Reg. Rep. (CCH) ¶¶ 13,104 (1992).

20. Timothy J. Muris, Is Heightened Antitrust Scrutiny Appropriate for Software Markets?, in Jeffery A. Eisenach & Thomas M. Lenard, Competition, Innovation, and the Microsoft Monopoly: Antitrust in the Digital Marketplace 83, 89-91 (1998).

21. Timothy J. Muris, The Efficiency Defense Under Section 7 of the Clayton Act, 30 Case Western L. Rev. 381 (1980).

22. Timothy J. Muris, The Government and Merger Efficiencies: Still Hostile After All These Years, 7 Geo. Mason L. Rev. 729 (1999).

23. United States v. The Coastal Corporation, 1985-1 Trade Cas. (CCH) ¶ 66,425 (D.D.C. Nov. 29, 1984).

24. See Timothy J. Muris, GTE Sylvania and the Empirical Foundations of Antitrust, 68 Antitrust L.J. 899 (2001).

25. Ticor Title Insurance Co., Dkt. 9190, 112 F.T.C. 334 (1989), rev'd, Ticor Title Insurance Co. v. FTC, 922 F.2d 1122 (3rd Cir. 1991), rev'd, 504 U.S. 621 (1992), on remand, 998 F.2d 1129 (3rd Cir. 1993), cert. denied, 510 U.S. 1190 (1994); Ticor Title Insurance Co., Dkt. 9190 ( April 22, 1994) (modified cease and desist order).

26. Superior Court Trial Lawyers Ass'n, Dkt. 9171, 107 F.T.C. 510 (1986), rev'd, Superior Court Trial Lawyers Ass'n v. FTC, 856 F.2d 226 (D.C.Cir.1988), rev'd in part, 493 U.S. 411 (1990), on remand, 897 F.2d 1168 (D.C.Cir 1990), cert. denied, 498 U.S. 1025 (1991).

27. Massachusetts Board of Registration in Optometry, Dkt. 9195, 110 F.T.C. 549 (1988).

28. Detroit Auto Dealers Ass'n, Dkt. 9189, 111 F.T.C. 417 (1989), aff'd in part and remanded, In re Detroit Auto Dealers Ass'n, Inc., 955 F.2d 457 (6th Cir.), cert. denied, 506 U.S. 973 (1992), on remand, 119 F.T.C. 891 (1995) (modifying order), remanded for reconsideration of remedy, 84 F.3d 787 (6th Cir. 1996), on remand, 123 F.T.C. 1427 (1997) (consent order).

29. City of New Orleans, Dkt. 9179, 105 F.T.C. 1 (1985 ); City of Minneapolis, Dkt. 9180, 105 F.T.C. 304 (1985).

30. In the Matter of AMERCO and U-Haul International, Inc., 109 F.T.C. 135 (1987) (consent order; complaint filed June 24, 1985).

31. TICOR, Superior Court Trial Lawyers, and FTC v. Indiana Federation of Dentists (IFD), 476 U.S. 447 (1986). Although the complaint in IFD was issued before our tenure, we fully supported the case and pursued an appeal to the Supreme Court in 1985 when the Solicitor General declined to appeal on behalf of the Commission.

32. United States v. F. Hoffmann-LaRoche, Ltd., 6 Trade Reg. Rep. (CCH) ¶¶ 45,097 (D.D.C. 1997).

33. See generally Harry First, The Vitamins Case: Cartel Prosecutions and the Coming of International Competition, 68 Antitrust L.J. 711 (2000).

34. United States v. Microsoft Corp., 253 F.3d 34 (D.C.Cir. 2001).

35. 110 F.T.C. 549 (1988). See Timothy J. Muris, The Federal Trade Commission and the Rule of Reason: In Defense of Massachusetts Board, 66 Antitrust L.J. 773 (1998).

36. California Dental Ass'n v. FTC, 526 U.S. 756, 758 (1999).

37. See Timothy J. Muris, California Dental Association v. Federal Trade Commission: The Revenge of Footnote 17, 8 Sup. Ct. Econ. Rev. 265 (2000); see also See Timothy J. Muris, GTE Sylvania and the Empirical Foundations of Antitrust, 68 Antitrust L.J. 899 (2001).

38. American Bar Association, Section of Antitrust Law, The State of Federal Antitrust Enforcement - 2001, A Report of the Task Force on the Federal Antitrust Agencies - 2001, at 7, 42-43.

39. See Timothy J. Muris, The FTC and the Law of Monopolization, 67 Antitrust L.J. 693 (2000).

40. In the Matter of AMERCO and U-Haul International, Inc., 109 F.T.C. 135 (1987) (consent order containing complaint filed June 24, 1985; emphasis added).

41. FTC Press Release, FTC to Hold Public Conference/Opportunity for Comment on U.S. Gasoline Industry in Early August, July 12, 2001, available at </opa/2001/07/gasconf.htm>; Public Conference: Factors That Affect Prices of Refined Petroleum Products, 66 Fed. Reg. 37,032 (July 16, 2001) (announcing initial public conference on August 2, 2001).