Remarks before the Milton Handler Annual Antitrust Review
New York, N.Y.
This speech reflects the views of Chairman Muris and not necessarily those of the Commission or of any other Commissioner.
Roughly two years ago, toward the end of December 2000, it became apparent that I might have the privilege to serve once again at a senior level in the federal government. If given a choice, my preference was certain. I hoped to return to the Federal Trade Commission. For me the FTC has many attractions, both professional and personal. As an academic, I have spent twenty-five years studying and writing about the Commission. I served as an Assistant to the Director of the Office of Policy Planning and Evaluation with the agency in the mid-1970s and directed the Bureau of Consumer Protection and the Bureau of Competition (fortunately, not at the same time) during my second tour in the 1980s. The FTC has been the single largest focus of my career, and I have an affinity for the institution and its people that long ago transcended abstract familiarity with an administrative agency.
I also was drawn back to the agency by the manner in which its competition and consumer protection activities have evolved. In recent years, as I observed the substantive program developed under Bob Pitofsky's exceptional leadership, I was struck by how extensively the work of the modern FTC had come to match my own views about how the agency should use its authority.(1) As the agency's head, I knew that beyond sustaining the many valuable initiatives already underway, I could focus my energies on developing new projects and continuing my predecessor's enhancement of traditional programs.(2) In doing so, I would draw upon the most impressive and interesting array of litigation and non-litigation policy instruments ever entrusted to a competition policy agency.
For all these reasons, I welcomed the opportunity to return to the FTC.
In earlier speeches and testimony, I have identified my specific competition policymaking aims(3) and have recounted the agency's progress toward attaining them.(4) These presentations extensively document these initiatives and bear out, I believe, my initial prediction that the Commission's competition policy program would be active and ambitious.(5) Today I want to look beyond raw case counts and simple descriptions of non-litigation matters. More generally, I wish to discuss my philosophy about the appropriate content of the FTC's competition policy strategy and to explain the logic of the positive agenda used to implement the strategy. Because I have discussed our enforcement program in great detail on other occasions,(6) I will place that program in a broader context and describe some of our non-enforcement projects in greater detail than I have previously done.
Why should the competition policy community be concerned about the principles that motivate the development of a competition policy strategy or guide the design of a positive, implementing agenda? My experience in public agencies confirms a vital, often-stated conclusion of academic researchers: no public institution achieves policy success without a coherent strategy for exercising its authority and spending its resources.(7) A key manifestation of an agency's strategy is a positive agenda - a statement of the measures the agency intends to pursue to accomplish its substantive aims. Without a general strategy and a positive agenda, an agency becomes a passive observer, swept along by external developments and temporary exigencies.
A positive agenda also provides essential guidance. For the agency's staff, a positive agenda focuses effort on measures most likely to fulfill the institution's mission. For the business community and other interested parties, a clear statement of intentions reduces uncertainty and facilitates compliance with the law.
Four general principles should inform the development of the FTC's competition policy strategy and the preparation of a positive agenda for executing the strategy. The Commission should:
- Play an active role in promoting competition as the basic principle of economic organization through strong enforcement and focused advocacy;
- Focus its antitrust enforcement resources on conduct that poses the greatest threat to consumer welfare;
- Make full use of the agency's distinctive institutional capabilities by applying the entire range of its policy instruments to solve competition policy problems; and
- Attach a high priority to improving the institutions and processes by which antitrust policy is formulated and applied.
I discuss each of these principles in turn.
I. Promoting Competition and Curbing Immunities
As a nation, we derive vast economic benefits from competition. These cannot be taken for granted. The benefits, and the competition that yields them, are not immutable. The FTC has a special responsibility to speak for the competitive process and resist measures, especially legislative or regulatory immunity from antitrust scrutiny, that would dissipate the benefits of competition by reducing the role of business rivalry in the economy.
A. Antitrust as an Organizing Principle
More than a mere collection of laws, the antitrust laws and the pro-competition ethic they embody serve as an organizing principle in our country's economy. Antitrust plays a major role in shaping our markets, institutions, and the relationships among market participants.(8)Indeed, the Supreme Court has called the Sherman Act "a comprehensive charter of economic liberty."(9) Effective antitrust enforcement may preclude direct, command-and-control regulation of sectors of the economy, avoiding the significant inefficiencies such regulation entails. By spurring competition, antitrust contributes to a market system that provides lower prices, encourages greater innovation, and generates faster responses by business to changing consumer needs and desires.
In what sense is antitrust an organizing principle? Whether or not a country should adopt antitrust laws is not, of course, the first consideration for organizing an economy. More fundamental is the choice of an economic system. Should the economy be based on competition through free enterprise and open markets, on command-and-control regulation, or on public or collective ownership? In the United States, we have largely chosen free enterprise and markets.
Free enterprise does not mean a system without rules. Any market economy needs a well specified structure of property rights, contract law, and other rules of conduct.(10) These rules of the road largely focus on the relative rights of particular parties; they do not, for the most part, address problems in the market that interfere with competition and decrease consumer welfare. Rules of contract and property law may not provide effective deterrence of, or remedies for, anticompetitive conduct.(11) There are two main options for dealing with such conduct. The first is antitrust law. I view antitrust law as "a form of regulation that competes with other regulatory structures"(12) and makes direct regulation unnecessary. The other option for addressing market imperfections is comprehensive sectoral regulation, which ordinarily entails strict controls on prices, entry, and conduct. For various segments of our economy, the states and federal government have adopted this latter strategy, often at great costs.
The United States has chosen antitrust law to provide the governing rules for competition in most sectors of the economy. Why antitrust law? Our faith in the market system is firmly grounded in the principle that free enterprise and competition are the best guarantors of commercial freedom, economic efficiency, and consumer welfare. Effective competition is most likely to yield the optimal mix of goods and services at the lowest cost. Antitrust law helps maintain effective competition by prohibiting conduct that unreasonably restricts markets. Sectoral regulation may be appropriate in certain, limited applications, but it is the antithesis of competition, with its restrictions on price, entry, and conduct. A large and sad literature documents how sectoral regulation often has harmed consumers by imposing needless controls on entry, pricing, and new product development.(13)
Much of what I have just said is likely to strike the competitive policy community as unremarkable. It is not self-evident, however, to all business operators and all policymakers. We often encounter proposals to protect various economic actors from the competitive forces that apply to the economy as a whole. In rare cases, the arguments for exceptional treatment may have merit. Far more often than not, they provide little basis for displacing competition and substituting controls on pricing, entry, or other aspects of rivalry.
The frequency and relentlessness of the exceptionalist impulse has a crucial implication for FTC policy making. We can provide a well-informed, empirically-based voice against diminishing the role of competition in our economy. As I describe below, that is why we have made, and will continue to make, our voice heard before the legislative bodies and regulatory authorities that frequently are the targets of exceptionalist arguments.
B. Reversing the Shrinking Domain of Antitrust
Big government is a permanent part of modern society. One-third of our GDP is government. Almost 20% is federal; the remainder is state and local spending.(14) Even under Republicans, with the exception of the first Reagan term, federal regulation and the number of federal regulators have continued to grow.(15) Federal regulatory costs are approaching $1 trillion, and the number of full-time federal employees promulgating and enforcing regulations alone stands at nearly 136,000 in 2002.(16)
Two antitrust immunities help protect and foster regulatory growth: Noerr immunity and the state action doctrine.(17) Both have been broadly interpreted by some courts, and their expansive interpretation has been widely criticized. For example, as early as 1978, Robert Bork saw "an enormous proliferation of regulatory and licensing authorities at every level of government."(18) He warned that the "profusion of such governmental authorities offers almost limitless possibilities for abuse."(19) Just last year, the Antitrust Section of the American Bar Association noted that "[s]tate action immunity drives a large hole in the framework of the nation's competition laws."(20)
We know much of this growth in government harms consumers. It reflects rent seeking - pure and simple.(21) At its core, antitrust exists to protect consumers. Antitrust is not a cure for rent seeking, but it can make important contributions to addressing the problem. To do so, we must properly interpret the antitrust immunities that protect, not only legitimate government activity, but also rent seeking.
The Noerr doctrine, first articulated in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc.(22) and United Mine Workers of America v. Pennington,(23) provides antitrust immunity for individuals "petitioning" government, whether through lobbying, administrative processes, or litigation. Noerr is often invoked to shield a particularly effective way of monopolizing a market - through misuse of governmental process. As originally conceived, Noerr sensibly reserved a narrowly defined sphere of political activity from enforcement of the antitrust laws. However, Noerr immunity has been expanded in a manner that potentially harms consumers. In some instances, parties have been granted immunity even though the anticompetitive conduct at issue had no "petitioning" component whatsoever. In others, courts have immunized abusive tactics, such as repetitive lawsuits and misrepresentations, that were clearly intended to delay a competitor's entry or raise its costs, rather than legitimately to petition government.
Application of the doctrine can raise a host of complicated issues, including whether the conduct in question is true "petitioning" and what constitutes "sham" petitioning. There is frequent disagreement on such issues, and the outcome of these debates can have far-reaching consequences. A case in point is Superior Court Trial Lawyers,(24) which the FTC initiated during my tenure as Director of the Bureau of Competition in the 1980s. The case involved a boycott organized by an association of court-appointed trial lawyers to force the District of Columbia government to increase the lawyers' fees. Some observers, perhaps many, thought the boycott was a political action, not a true competition matter. I disagreed; the conduct, at bottom, was a pure collusive restraint on competition. The Supreme Court ruled that the boycott violated antitrust law.
As the Commission's recent investigations into generic drug competition(25) have revealed, so-called "sham" petitioning - often in the form of "petitioning" a court through litigation - can have significant anticompetitive effects. Although some courts interpret the sham exception to Noerr immunity in a manner that all but eviscerates its limiting effect, others recognize that this approach produces extreme results that do not serve the purpose of competition policy and do not give appropriate effect to the Noerr doctrine.(26)
Shortly after arriving at the agency, I created a Task Force to study Noerr and to recommend appropriate case and advocacy opportunities. The FTC's Noerr Task Force has been conducting a careful analysis of existing case law, seeking to identify opportunities to clarify the case law in a manner that promotes competition and enhances consumer welfare. The Task Force has been evaluating a number of specific developments in the Noerr doctrine. The following principles deserve serious consideration:
- Adopt an appropriately narrow view of immunized "petitioning," currently used in cases involving tariff filings and private settlements.(27)
- Make clear that the Walker Process exception(28) to Noerr immunity extends beyond the Patent and Trademark Office ("PTO") to analogous non-legislative proceedings. In Walker Process, the Supreme Court ruled that an effort to defraud the PTO does not enjoy antitrust immunity.
- Recognize fully an independent misrepresentation exception - separate and distinct from the "sham" exception set forth in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries.(29) In short, material misrepresentation should not be protected.
The FTC has had two recent successes in the Noerr area.(30) Both involve the improper listing of patents in the Orange Book issued by the Food and Drug Administration (FDA).(31) Under its current procedures, the FDA does not review patents presented for listing in the Orange Book to determine whether they do, in fact, claim the drug product described in the relevant New Drug Application (NDA).(32)Instead, the FDA takes at face value the declaration of the NDA filer that the listing is appropriate. As a result, an NDA filer acting in bad faith can successfully file patents that do not satisfy the statutory listing criteria. Once listed in the Orange Book, these patents have the same power to trigger a 30-month stay of Abbreviated NDA approval as any listed patent, thereby delaying generic entry and potentially costing consumers millions, or even hundreds of millions, of dollars without valid cause.
In January of this year, lawsuits relating to Bristol-Myers's alleged monopolization through improper listing of a patent on its brand-name drug BuSpar(33) presented the Commission with an opportunity to clarify the Noerr doctrine in a way that might have a significant impact on the Commission's ongoing pharmaceutical cases.(34) The plaintiffs alleged that, through fraudulent filings with the FDA, Bristol-Myers had caused that agency to list the patent in the Orange Book, thereby blocking generic competition.
Bristol-Myers filed a motion to dismiss that raised, principally, a claim of Noerr immunity. Given the importance of the issue to competition in the pharmaceutical industry, as well as to the Commission's ongoing investigations, we filed an amicus brief opposing the motion to dismiss.(35) The Commission's brief asserted that the Bristol-Myers listing conduct was not petitioning - that there is an important difference between argumentative filings before bodies with discretionary decision making authority (which is petitioning) and informational filings before bodies exercising ministerial functions (which is not petitioning). Even if it were petitioning, the Commission argued, various exceptions to Noerr applied.
On February 14, 2002, the court denied the immunity claim and accepting most of the Commission's reasoning on the Noerr issue.(36)The court held that Orange Book filings are not "petitioning" under Noerr and that, even if they were, plaintiffs' allegations were sufficient to satisfy the Walker Process exception. Notably, this is one of the first decisions to apply Walker Process outside the PTO context. The court also held that, even if Orange Book filings were petitioning, plaintiff's allegations satisfied the "sham" exception. The Commission's brief had advanced all three alternative holdings. In light of the Buspirone decision, the Noerr doctrine should not prove as large an obstacle to using the antitrust laws to remedy improper Orange Book filings as some have anticipated. It is worth noting, and indeed emphasizing, that Buspirone does not mean that all improper Orange Book filings will give rise to antitrust liability. Any antitrust liability must be predicated on a clear showing of a violation of substantive antitrust law. Buspirone makes it clear, however, that Orange Book filings are not automatically immune from those laws or exempt from their scrutiny.
Our second success involving Noerr issues occurred in April, when the Commission announced that it had issued a consent order against Biovail Corporation.(37) That order settled charges that Biovail had illegally acquired an exclusive patent license and wrongfully listed that patent in the Orange Book for the purpose of blocking generic competition to its brand-name drug Tiazac. This was the Commission's first enforcement action to remedy the effects of an allegedly improper, anticompetitive Orange Book listing.
Prior to the events giving rise to the Commission's complaint, Biovail already had triggered a 30-month stay of FDA final approval of Andrx's generic Tiazac product, by commencing an infringement lawsuit against Andrx. Andrx prevailed in the courts, however, so that the stay would have been lifted by February 2001. According to the Commission's complaint, Biovail, in anticipation of pending competition from Andrx, undertook a series of anticompetitive actions to trigger a new stay and maintain its Tiazac monopoly. Just before the stay was to terminate, Biovail acquired exclusive rights to a newly issued patent from a third party and listed that patent in the Orange Book as claiming Tiazac - thereby requiring Andrx to re-certify to the FDA and opening the door to Biovail's suit against Andrx for infringement of the new patent and to the commencement of a second 30-month stay.
The Commission's complaint alleged that Biovail's patent acquisition, wrongful Orange Book listing, and misleading conduct before the FDA were acts in unlawful maintenance of its Tiazac monopoly and in violation of Section 5 of the FTC Act. The complaint also alleged that the acquisition violated Section 7 of the Clayton Act.(38) The consent order requires Biovail to divest the exclusive rights to their original owner with certain exceptions; to achieve dismissal with prejudice of any and all claims relating to enforcement of the patent in relation to Tiazac; and to refrain from any action that would trigger another 30-month stay on generic Tiazac entry. Furthermore, the order prohibits Biovail from unlawfully listing patents in the Orange Book and requires Biovail to give the Commission prior notice of acquisitions of patents that it will list in the Orange Book for Biovail's FDA-approved products.(39)
2. State Action
The Supreme Court first articulated the state action doctrine in 1943 in Parker v. Brown.(40) The doctrine emerged in response to efforts to apply antitrust rules primarily designed to regulate business conduct to the activities of state governments probably not contemplated in 1890 when the Sherman Act became law. The Supreme Court based the doctrine on the relatively non-controversial notion that, in 1890, Congress intended to protect competition, not to limit the sovereign regulatory power of the states. Thus, pursuant to the doctrine, certain actions that could be attributed to "[t]he state itself" would be immunized from antitrust scrutiny.(41)
Since Parker, however, the scope of state action immunity from the antitrust laws has increased significantly. At times, courts have failed to consider carefully whether the anticompetitive conduct in question was envisioned by the state legislature or truly necessary to accomplish the state's objective. Other courts have granted broad immunity to quasi-official entities, including entities composed of market participants, with only a tangential connection to the state.
To be sure, state action immunity may have significant benefits. For example, immunizing state regulatory schemes from antitrust challenge fosters the development of a diversity of such schemes. This process creates "natural experiments" from which regulators may learn and, when working optimally, can increase efficiency at all levels of government.
Overbroad immunity, however, has significant costs as well. The myriad state regulatory regimes can present substantial challenges to interstate commerce. If not properly managed, such regulation could threaten the national economy. This threat is magnified by the potential for interstate "spillovers," which force the citizens of one state to bear the burden of anticompetitive regulations imposed by a neighboring.(42) Parker, for example, involved an agricultural marketing program regulating raisin production that extended to California growers only. Because the vast majority of the affected raisins were sold outside California, the program's burden fell almost exclusively upon out-of-state consumers. The spillover problem highlights how a well-ordered federalist system cannot, and should not, focus solely on preventing encroachment from the national government. Preventing state governments from acting opportunistically toward one another is an important part of federalism as well.
To address the concern that some courts interpret the state action doctrine too expansively, potentially creating conditions hospitable to opportunistic "spillover" regulations and unsupervised delegations of state power, I convened a State Action Task Force last year. The Task Force is currently evaluating the feasibility and desirability of promoting a number of specific developments in the state action doctrine.
For example, many competition policy concerns involve the question of what acts should be attributed to "the state itself." The Supreme Court has held that the doctrine shields the conduct of non-state actors undertaken pursuant to a clearly articulated state law that displaces competition with a regulatory scheme. Moreover, private actors are subject to the requirement that the state actively supervise their conduct.(43) The "clear articulation" and "active supervision" requirements have been the subject of varied and controversial interpretation, sometimes resulting in the unwarranted expansion of the exemption and the shielding of essentially private anticompetitive conduct. Thus, under the clear articulation standard, some courts seem to believe that the more general the state legislation is, the more they will find an intent to displace competition.(44) That result stands the "clear articulation" test on its head. Although the Commission's Ticor case(45) helped to clarify the "active supervision" standard, that standard still is not sufficiently clear.
The FTC's State Action Task Force has been conducting a careful analysis of existing state action case law, seeking to identify opportunities to direct the development of that case law in a manner that promotes competition and enhances consumer welfare. I anticipate that these opportunities will include bringing cases and participating in state and local regulatory proceedings. Numerous investigations are underway, and the FTC has already participated in a few state proceedings.(46)
The Task Force has evaluated several specific developments in the state action doctrine, including the following:
- Clarify the proper interpretation of the "clear articulation" requirement - the first of the two-prong test in California Retail Liquor Dealers Association v. Midcal Aluminum, Inc.(47) - to ensure that a state truly intended to displace competition by authorizing the anticompetitive conduct at issue.
- Elaborate further the standards for the "active supervision" requirement - the second prong of Midcal - to ensure that the requirement has "teeth" and will prevent private entities from restraining competition absent meaningful government oversight. Courts have not articulated a well-defined standard for active supervision. The Supreme Court has stated that a state official must engage in a "pointed reexamination" of a pricing scheme (Midcal) and must exercise "independent judgment and control" (Ticor(48)), but has provided little concrete guidance on the standards federal courts should use to assess the state's efforts and what states should do to satisfy those standards.(49)
- Advocate a tiered approach to govern the application of the "clear articulation" and "active supervision" requirements to ensure that these tests are applied most strictly when the threat to competition and consumer welfare is greatest, and less strictly when the threat is less severe.
- Consider explicit recognition of a "market participant" exception to state action immunity based on a statement in Omni Outdoor Advertising that immunity "does not necessarily obtain where the State acts not in a regulatory capacity but as a commercial participant in a given market."(50)
I emphasize that these are steps the Task Force is considering. The Commission has not yet taken action with respect to these Task Force recommendations.
3. Statutory Exemptions
The domain of antitrust also can be limited by statutory exemptions.(51) Proposals for new exemptions are common.(52) Proponents often claim to justify these proposals by considerations that, supposedly, cannot be addressed by the market - e.g., "quality of care" issues in the case of antitrust immunity for doctors. Such claims usually cannot withstand scrutiny.(53)
C. Advancing Consumer Welfare Through Competition Advocacy
Although vigorous law enforcement is necessary to protect consumers, the Commission also can enhance consumer welfare by informing decision makers on the likely effects of proposed policies.(54) The Commission has a long and august history in this area.(55) Today, the FTC is acting as a vigorous advocate for competition through the publication of studies and reports, as well as participation in state and federal legislative and regulatory fora. Participation in judicial fora, as an amicus curiae, is part of our advocacy program, especially when the FTC's participation can help remove protectionist regulations,(56) when substantial questions of antitrust law are likely to be debated, (57) or when because of special knowledge or experience, the agency can add a different perspective to the deliberations.(58) The FTC's advocacy program provides economic analysis and other informed guidance to help policymakers better understand the impact of their decisions in creating, maintaining, or forestalling competitive markets.(59)
The FTC has been careful and selective in choosing the matters in which it participates. The agency has focused its efforts on areas of high priority to consumers such as energy,(60) health care,(61) professional services,(62) and antitrust immunities.(63) The FTC has also provided information and recommendations to other government agencies whose mission generally does not focus directly on "competition," in an effort to promote policies that support competition and enhanced consumer choice.(64)
D. Toward Fostering an Integrated, Competitive National Economy
Too many business practices stand outside the universe of conduct that should be subject to antitrust scrutiny. This condition accounts for the progressively greater attention that the FTC is giving to the shrinking domain of antitrust -- the expansion of various exemptions or immunities from the antitrust laws. Unless arrested and reversed, the expansion of the zone of immunity, spurred in part by unwisely broad readings of the Noerr and state action doctrines, will, by blunting the operation of our antitrust laws in key sectors, undermine the beneficial economic integration of the nation. The terrain that antitrust enforcement has gained through decades of strenuous effort to establish the illegality of private cartels and other forms of demonstrably anticompetitive conduct will be surrendered at great economic cost if collusion and exclusion facilitated by government action become readily available alternatives. The FTC's current agenda uses law enforcement and the agency's considerable competition advocacy capability together to heighten awareness of the value of competition.
II. Focusing Enforcement on the Greatest Threats to Consumer Welfare
Though not its only policy instrument, law enforcement provides the most consistent means by which the FTC influences the rules of the competitive process. By what calculus should the Commission decide how to exercise this core element of its competition policy mandate? The essential answer, I believe, is clear: The Commission should forestall the greatest threats to consumer welfare. This principle captures the basic direction of FTC practice over the past two decades. Although debate continues about how much attention the agency should devote to some forms of conduct, the proposition that FTC antitrust enforcement should be measured by its capacity to improve consumer welfare commands broad assent today.
A. The Ascent of Consumer Welfare as the Foundation for FTC Enforcement
Competition policy succeeds when it serves consumer interests - for example, by pressing producers to offer lower prices or to improve product quality. The true measure of our contribution to the economy is our progress in increasing consumer welfare. Public antitrust enforcement has not always achieved this objective. In some cases, the departure from a consumer-oriented focus resulted from conscious policy choices that equated the well-being of individual firms with consumer interests. From the mid-1930s through the 1960s, enforcement of the Robinson Patman Act was the FTC's foremost antitrust concern.(65) In many instances, the Commission's Robinson-Patman enforcement paid insufficient attention to the effect of the challenged conduct on competition, market efficiency, and consumer welfare. Almost all economists and antitrust lawyers agree that much of that enforcement harmed consumers.(66)
In other instances, antitrust enforcement has failed to serve consumer interests owing to a basic misdiagnosis of commercial phenomena. From the late 1940s through the early 1970s, most economists believed that high levels of concentration inevitably begat express or tacit coordination that led to higher prices. Numerous studies found that large firms in concentrated industries earned higher profits, leading many observers to endorse measures to deconcentrate sectors such as automobiles, breakfast cereals, computers, soft drinks, and steel.(67)
In the 1970s, this perspective took root at the FTC, particularly through efforts to challenge "shared monopolies." The most painful and prominent initiative in this program was the FTC's massive, ill-defined case against the nation's eight largest petroleum refiners. The Exxon case consumed eight years of discovery and other pretrial procedures before it was dismissed in 1981.(68) Ironically, by the time the Exxon case and similar initiatives were launched, there was a growing recognition that concentration alone provided limited insights into industry performance and supplied too crude of a tool for devising controls on large firms or oligopolies. It is now widely accepted that major elements of the FTC's antitrust policy of the 1970s were not based on sound economics.(69)
The decade that followed - the 1980s - is sometimes said to have brought a "revolution" in antitrust. Although the changes in the antitrust agencies were indeed profound, it is probably more accurate to characterize the 1980s as the era in which Washington finally accepted the sound economics that the courts and scholars were already using. (Cases decided in the late 1970s had begun to transform antitrust analysis.(70)) Ronald Reagan's first administration, with Bill Baxter heading the Antitrust Division of the Department of Justice and Jim Miller chairing the FTC, brought to the antitrust agencies this solid framework for antitrust policy.(71) Antitrust finally regarded enhancing consumer welfare as the single unifying goal of competition policy,(72) and it used a framework that was based on sound economics, both theoretical and empirical.
The foundation of that framework was the belief, supported by modern economic research, that economics should guide Commission actions. Economics teaches that effective competition is the best mechanism for achieving the optimum mix of products and services in terms of price, quality, and consumer choice. In addition, an approach based on enhancing consumer welfare recognizes that governmental impediments to, or exemptions from, competition can be at least as harmful to consumers as private restraints.
This approach to antitrust enforcement has been largely consistent at the Commission since the acceptance in the 1980s of economic analysis as the basis for antitrust analysis and decision-making. As my colleague FTC Commissioner Tom Leary has demonstrated, there has been considerable consistency in merger enforcement.(73) Horizontal cases, both merger and non-merger, consume the overwhelming majority of antitrust resources. Although the Clinton administration abandoned the vertical restraints guidelines of the 1980s,(74) neither the Antitrust Division nor the FTC has brought many vertical cases, and the FTC has prosecuted few Robinson Patman cases, the mainstay of FTC enforcement in earlier decades.(75)
B. Targeting Enforcement
1. General Criteria
Shaping a rational antitrust program requires identifying the practices that should receive the greatest scrutiny. The critical guideposts are economic efficiency and consumer welfare. We are guided by both economic theory and firm empirical evidence in selecting and conducting investigations. The Commission's enforcement program focuses on the transactions and kinds of practices that pose the greatest threat of substantial consumer injury. The agency considers the deterrent effect of enforcement action as well as the amount of immediate consumer injury. Another relevant consideration is whether there is an opportunity to improve the state of antitrust legal doctrines. Such cases can have a substantial and long-lasting impact on the development of antitrust law, even if the amount of consumer injury is small in the immediate case.(76)
Enforcement experience is another criterion. The pharmaceutical and standard setting cases discussed infra highlight an area in which the agency is devoting substantial resources to identify enforcement targets - the nexus between intellectual property and antitrust. Some firms are trying to extend their IP rights unlawfully. A number of our recent non-merger cases focus on whether firms took actions to "protect" their IP rights in a manner that we allege is illegal.(77) The agency has responded to the centrality of intellectual property issues in these cases and other investigations, in part, by forming an Intellectual Property Case Generation Working Group whose responsibility it is to identify and investigate widespread or significant practices that have anticompetitive effects without corresponding consumer benefits.
In choosing how to allocate resources, we do not rank-order markets in any quantitative way, but considerations include the importance of those products and services to consumers' daily lives. The agency has devoted significant resources to maintaining competition in health care markets, an area of significant importance to the economy. In the last year, we have increased resources devoted to health care by 50 percent. We already have brought several cases; more can be expected.
2. Horizontal Mergers and Horizontal Agreements
Robert Bork once remarked that firms either make war on each other, or they make peace.(78) The "peace/war" paradigm is a helpful framework in identifying the kinds of practices most likely harm consumers. There is a general consensus that the practices about which we should most worry occur when firms stop competing vigorously, making peace to benefit themselves at the expense of consumers.(79)
Horizontal mergers in which anticompetitive effects are likely are one fertile area for firms to make peace to the detriment of consumers. That is why there is a well-accepted horizontal merger policy, based on the foundations of the Department of Justice and FTC Merger Guidelines.(80) Despite the decline in the merger wave, the agency has a very active enforcement program.(81) Over one-half of our total competition budget is used to scrutinize these mergers.
Firms also make peace through a wide variety of non-merger conduct. As with mergers, making peace is not sufficient to enable one to make a consumer welfare assessment. Many forms of collaboration benefit consumers; for example, facilitating manufacturer/distributor relationships can be efficiency-enhancing. Another example is an industry's adoption of a product safety standard that facilitates product development and provides useful information to consumers. By contrast, the peace-making of most concern lacks offsetting efficiency gains. Thus, we focus on naked horizontal agreements such as pure price fixing, naked output restraints or market divisions, and bans on advertising. The Commission has brought numerous cases in these areas in the last eighteen months involving physicians, (82) trade associations,(83) and generic drugs.(84) Most of the concern about state action discussed above involves similar horizontal collaboration.
2. Single-Firm Conduct. In rare cases, a single firm with market power can distort or subvert the competitive process to the detriment of consumers. I have criticized some past applications of monopolization theory, largely because of the use of theories that lack solid evidentiary support.(85) There continue to be sound monopolization cases, however. The most significant category of potentially troubling single-firm conduct involves the abuse of government process.(86) As Judge Bork has noted, "misuse of courts and governmental agencies is a particularly effective means of delaying or stifling competition."(87) Such strategies are not limited to single firms, but they can be particularly effective ways of monopolizing or attempting to monopolize a market. As I discussed above, the agency is pursuing several such cases, most of which involve the Noerr-Pennington doctrine.
Another example of potential monopolization occurs when firms misuse a self-regulatory process such as standard setting. Most standard-setting activities are legitimate and market-enhancing. On occasion, however, the standard setters, acting alone or in concert, manipulate the process to anti-consumer ends. Moreover, some standard setting involves quasi-governmental entities, and the anticompetitive conduct may resemble the kind of abuse of governmental process that is involved in Noerr cases.
Two examples of pro-consumer cases involving standards from Commission history are American Society of Sanitary Engineering and Dell.(88) In the first case, the FTC alleged that ASSE, an association of manufacturers of plumbing equipment, refused, without reasonable basis or justification, to modify an existing standard to encompass competitive products. In Dell, the Commission alleged that the respondent tried to control a market by manipulating the standard-setting process to gain the adoption of a standard that relied on the company's intellectual property.(89)
This year, the Commission addressed another Dell type issue. The complaint alleged that Rambus "has illegally monopolized, attempted to monopolize, or otherwise engaged in unfair methods of competition in certain markets relating to technological features necessary for the design and manufacture of a common form of digital computer memory, known as dynamic random access memory, or 'DRAM.'"(90) This matter is presently in litigation.
3. Vertical Mergers and Vertical Agreements. Vertical transactions involve firms in a non-competitive relationship and usually have a plausible, pro-competitive business rationale. It is now widely accepted in law and economics that, in most situations, vertical restraints or vertical mergers do not harm consumers.(91) The Commission has recently analyzed two vertical cases: Cytyc/Digene and Synopsys/Avant!. Let me describe our approach to both.
Cytyc/Digene involved the merger of two complementary cervical cancer screening tests. Synopsys/Avant! involved the merger of two complementary integrated circuit design software products. The Commission voted to block Cytyc/Digene and to close the investigation of Synopsys/Avant!.(92) The vertical theory of competitive harm in both cases involved the incentive of the combined firm to use its market power in one product to harm competition in the complementary product. The method by which harm would occur, the incentives of the firms to act anticompetitively, the potential impact on competitors (and hence competition), and the potential impact on consumers differed significantly between the cases, as did the Commission's ability to forecast the likelihood of these considerations.
To begin, in Cytyc, the means by which the combined firm could harm rivals was well-defined. The theory was that Digene would not support rival liquid pap test suppliers in obtaining FDA approval necessary for use of the Digene product in combination with the rivals' products. In contrast, in Synopsys, the theory was that Synopsys would make improvements to its logical synthesis product that worked better with the Avant! place and route product than with rival place and route products. Exactly what these changes would be was unclear. We found that a combined Cytyc/Digene appeared to have strong incentives to undertake the anticompetitive strategy, while the combined Synopsys/Avant!'s incentive to limit interoperability with its rivals (and antagonize customers) was unclear.
Moreover, in Cytyc, TriPath (the other liquid pap test competitor) and new entrants would be substantially impeded from competing without the merged firm's cooperation. In contrast, Avant! faced significant competitors downstream who would not be substantially impeded from competing. That Avant!'s downstream competitors might lose sales to Avant! post-merger did not, in this case, lead to a conclusion that the transaction would be likely to result in anticompetitive effects. Another difference between the cases involved the timing of the anticompetitive threat. In Cytyc, the potential harm would occur in the short term; industry participants anticipated that TriPath could be severely threatened immediately. In contrast, the competitive harm in Synopsys was not anticipated to happen until sometime in the future, if at all. Thus, it was subject to much greater uncertainty.
Potential efficiencies and customer views also were important in the Commission's decisions. The Synopsys/Avant! merger had the strong ability to create an improved, more integrated product. Knowledgeable customers are well-positioned to balance tradeoffs between potential efficiencies and potential anticompetitive effects. Thus, their views on the potential effects of a vertical merger are crucial.
III. Making Full Use of the Commission's Distinctive Institutional Attributes
A. The Broad Role of the FTC
The Commission's competition policy programs should reflect the exercise of the agency's distinctive institutional attributes. The agency has a unique collection of capabilities, and its competition policy work today invokes all of them. These capabilities include expansive power to conduct studies or perform research about the economy; a broad charter to act as an advocate for competition before other government bodies; and authority to use administrative adjudication to resolve competition policy disputes. In performing its responsibilities, the Commission can draw upon not only its attorneys, but also one of the world's preeminent teams of industrial organization economists in our Bureau of Economics.
I invite you to use, as one measure of our stewardship, the FTC's effectiveness in engaging the entire panoply of its powers to address competition policy problems. We sell our statutory mandate short and neglect the rationale for creating the FTC if we do not avail ourselves of the special capabilities Congress has placed at our disposal. As I have described above, the agency's positive agenda seeks to use a truly multi-dimensional approach to addressing various policy issues and to improve the content of antitrust policy.(93)
Prominent among our non-litigation instruments is the use of competition advocacy to address exemption and immunity issues. Our recently published study involving generic drugs also shows how the agency can shape the policy environment.(94) In a Rose Garden ceremony, the President recently announced that the FDA was proposing to change its rules to adopt the FTC's major recommendation.(95)
Another example of making use of the Commission's unique institutional capacities is our efforts concerning competition in e-commerce. In August 2001, I created a Task Force to examine possible anticompetitive efforts to restrict competition on the Internet. The Task Force is analyzing state regulations, such as occupational licensing and physical office requirements, that may have pro-consumer or pro-competition rationales, but that nevertheless may restrict the entry of new Internet competitors. The Internet Task Force also is examining barriers that arise when private parties employ potentially anticompetitive tactics, such as when suppliers or dealers apply collective pressure to limit online sales. These possible barriers fall at the intersection of competition and consumer protection (with restrictions on the former often justified in the name of the latter) and at the intersection of law and empirical economics - confluences that the Commission is particularly well suited to address.
Toward that end, the Commission has opened several investigations concerning possible anticompetitive restrictions on e-commerce, and the Task Force has taken the lead in drafting several competition advocacy pieces.(96) In October, the Commission hosted a three-day public workshop examining potential barriers to e-commerce in ten different industries.(97) The Commission also testified before Congress concerning these possible barriers.(98)
Yet another arena for employing our distinct institutional attributes is administrative litigation. During my tenure as director of the Bureau of Competition in the 1980s, I made special efforts to make the fullest possible use of our administrative process to address important and difficult issues of antitrust law. In several instances, the FTC made substantial contributions to antitrust jurisprudence. Even in cases such as Indiana Federation of Dentists or Detroit Auto Dealers, in which the total volume of commerce in question was relatively modest, the agency demonstrated how "small" cases can make big law. The FTC's current roster of administrative adjudication matters reflects its commitment to use the administrative process to address difficult areas of competition policy. At the moment, the agency has four matters in adjudication: Polygram,(99) Schering,(100) Chicago Bridge and Iron,(101) and Rambus.(102) Others probably will be added to the list in the coming months.
B. Addressing Complex, Difficult Competition Policy Issues
The Commission's distinctive institutional capabilities have important implications for the types of competition problems the agency should place on its positive agenda. Because the FTC has an unequaled mix of policy instruments, we should devote significant resources to addressing the most difficult and significant issues -- matters whose analysis places a premium on accurately analyzing complex commercial phenomena and for which the flexible, sophisticated application of a different tools may be necessary to cure competitive distortions. Inherent in the agency's institutional design and authority is a comparative advantage in spotting and understanding the toughest problems and in addressing them.
This explains why the FTC today gives such prominence to some of the most difficult issues on the competition policy landscape. Areas such as health care, pharmaceuticals, standards setting, and the relationship between antitrust and intellectual property pose demanding analytical challenges. Earlier in this presentation, I discussed how frequently the agency's litigation and non-litigation resources have focused on these areas - whether in the form of administrative litigation in the Rambus standard setting case, the publication of our study of generic drugs, advocacy comments involving the sale of contact lenses, or hearings involving intellectual property and health care. To put the point most strongly, the legislative measures that created the Commission and augmented its powers over time do not merely create opportunities for the FTC to tackle the hardest issues; they make it our responsibility to see that we commit a substantial part of our competition policy resources to such endeavors.
C. Investing in Competition Policy R&D
To position ourselves to make intelligent contributions to competition policy through litigation or non-litigation instruments, we must make substantial investments in what might be called competition policy research and development. We can no more afford to under-invest in building our knowledge base than a firm can thrive over the long run by firing its scientists and other researchers and focusing solely on manufacturing existing products. Our capacity to do good work, and our credibility as a voice for competition policy, requires a continuing commitment - indeed, I believe, an expanded commitment - to conduct research to increase our understanding of how markets and firms operate, the conditions under which business conduct is likely to be anticompetitive, and whether the agency's previous enforcement efforts were necessary and successful.(103)
The antitrust revolution of the 1980s was based on the acceptance and implementation of new economic learning that blossomed during the 1960s and l970s inside academia and the courts. For the FTC to be effective, the agency should be in the forefront in understanding whether markets operate in a competitive fashion and in communicating to decision makers the harm to consumer welfare when there is movement away from competition. The agency also should explore the relevance of the theoretical foundation (generally, but not exclusively, industrial organization theory) of our efforts and those of others. These efforts are useful to the FTC, its sister enforcement agencies, both here and abroad, Congress, the Executive, and others, because they inform both policy and enforcement decisions.
As detailed elsewhere, the FTC's current competition policy R&D efforts have focused on: (1) improving the empirical understanding of our theoretical framework,(104) (2) analyzing "merger outcomes,"(105) (3) reviewing two decades of change in the petroleum industry,(106) (4) a unique effort in the real time monitoring of wholesale and retail gas prices across the nation,(107) (5) the operation of current and developing health care markets,(108) (6) reviewing the development of barriers to e-commerce,(109) and (7) considering the interplay between the competition and intellectual property regimes.(110) Our findings in these areas will continue to form the basis for enforcement, changes in enforcement policies, legislative recommendations, and public reports and comments.
As an example of our efforts, consider our recent two-day health care workshop. The workshop featured presentations by academics, providers, insurers, employers, patient groups, and representatives of the Commission, the Department of Justice, and state attorneys general. The workshop had more than a dozen speakers and five panel discussions. The panels focused on clinical integration, payor/provider issues, group purchasing organizations, generics and branded pharmaceuticals, and direct-to-consumer advertising of pharmaceuticals. Each panel presented a broad range of views on each of these subjects from knowledgeable panelists. Several hundred people attended the workshop. The workshop also made clear that there is a considerable diversity of views on the appropriate role and priorities for the Commission and other enforcement agencies.
Because the workshop only began to explore the complex and interdependent issues, the Commission authorized an extended set of hearings on health care and competition policy, commencing in February 2003 and continuing through the year.(111) The hearings broadly will examine the state of the health care marketplace and the role of antitrust and consumer protection in satisfying the preferences of Americans for high-quality, cost-effective health care.
IV. Improving Competition Policy Institutions and Processes
The Commission has a special responsibility to pursue improvements in the processes and institutional arrangements through which competition policy is formulated at home and abroad. Matters of procedural and institutional design can affect substantive outputs significantly. The policymaking environment today is considerably more decentralized and fragmented than it was when I left the FTC in 1985.(112)
We have a responsibility to ensure not only that we improve procedures directly under our own control, but that we work with other public bodies to promote the development of sound policy approaches that improve consumer welfare. The perceived legitimacy of the policy system will depend upon whether we can demonstrate continuing progress toward reducing unnecessary costs associated with the implementation of antitrust commands.
We are acting aggressively to achieve this objective. On several occasions in the past year, the Commission has issued statements explaining why it declined to take actions involving mergers for which the agency had issued a second request or otherwise conducted a significant inquiry.(113) By doing so, the agency has sought to provide greater transparency concerning our analysis of mergers. Further, the FTC also has made considerable effort in the merger area to improve the pre-merger review of specific transactions and reduce the costs associated with the merger control regime.(114)
The FTC's commitment to improve competition policy institutions and processes has a significant international dimension. Let me highlight a few illustrative initiatives. The FTC is intensifying its commitment to improve the operation of our bilateral cooperation agreements. No relationship assumes greater importance than our cooperation with the Competition Directorate of the European Commission.(115) In many respects, this relationship between two of the world's most substantial antitrust regimes is a vital testing ground for collaborative approaches and practical techniques that might be adapted on a larger multinational scale. The past year has featured expanded cooperation between our agencies on a variety of fronts, and it is evident that the additional effort is yielding positive results.(116)
Multilateral institutions also have commanded greater attention. The FTC has been an active participant in the establishment and operation of the International Competition Network (ICN). For example, the FTC headed the working group that produced the guiding principles and best practices for premerger notification that the ICN endorsed at its first annual meeting in September.(117) This promising new endeavor will continue to receive our strong support.
As I described in an earlier presentation, I expect to see the FTC and its counterparts overseas to use their experience in antitrust cooperation to improve the enforcement of consumer protection prohibitions against fraud.(118)
Such efforts could become part of a larger international program to improve understanding of the links between competition policy and consumer protection and to ensure that public policy in these two areas serves the mutually-reinforcing purpose of improving consumer welfare. This is yet another area in which the FTC can take a major step toward realizing the potential inherent in its special institutional design - specifically, a design that vests antitrust and consumer protection authority in a single institution.
Finally, the FTC's commitment to assist transition economies in building effective competition policy and consumer protection regimes has reached an all-time high. In the fiscal year that concluded in September, the FTC performed numerous short-term technical assistance missions involving antitrust and consumer protection issues in transition economies and assigned long-term advisors to assist the competition authorities of Indonesia and South Africa. These initiatives extend and build upon the FTC's decade-long program to help less developed countries build the legal infrastructure to support the operation of a market economy.
I marvel at the transformation of the FTC during my professional lifetime. Barely 30 years ago, many thoughtful observers regarded the utility of the Commission's continued existence as a close question. Today, the agency stands in the front ranks of public institutions.
The challenge ahead is to develop strategies that build upon the agency's successes and see that the FTC remains at the forefront of efforts to ensure that competition retains its vitality as a source of economic growth. This task is increasingly difficult, owing to the greater complexity of economic phenomena that we must evaluate and the broad distribution of policymaking authority across various domestic and foreign government bodies. It is also made difficult by the ageless efforts of business operators to persuade public authorities to adopt statutes or regulations to establish competition-suppressing mechanisms that, were they the result of purely private decision making, would be condemned categorically under antitrust law.
The touchstone of the agency's efforts to develop a strategy and a positive agenda for implementing its antitrust mission is the search for and consideration of transactions, agreements, and activities that harm consumers. The FTC's programs should reflect an awareness of the greatest dangers to the competitive process, and the agency should use the full array of its institutional capabilities to address them. Much of the agency's impact will come through, and most of our resources will be spent on, case selection and prosecution. We would be remiss, however, not to make full use of our distinctive institutional attributes, including the ability to perform advocacy and conduct studies.
Finally, the FTC's future success will depend heavily on replenishing and expanding its knowledge base by investing in competition policy R&D, including research activities devoted to identifying and prohibiting conduct that reduces consumer welfare. The agency's allocation of resources must recognize that, to an ever greater degree, intellectual leadership will be the currency of exchange in making competition policy in the future. My duty today and in the coming years is to make long-term investments that ensure the Commission remains second to none in that market.
1. Upon becoming Chairman, I could confidently predict that continuity would be the dominant trait of future FTC antitrust enforcement. See Timothy J. Muris, Chairman, Federal Trade Commission, Antitrust Enforcement at the Federal Trade Commission: In a Word - Continuity, Prepared Remarks Before the American Bar Association Antitrust Section Annual Meeting, Chicago, Illinois (Aug.7, 2001) (hereinafter Continuity), available at </speeches/muris/murisaba.htm>.
2. Timothy J. Muris, Robert Pitofsky: Public Servant and Scholar, 52 Case Wes. Res. L. Rev. 25 (2001).
3. See Muris, Continuity, supra, note 1.
4. Complete descriptions of the FTC's competition policy activities in the past eighteen months can be found in Timothy J. Muris, Chairman, Federal Trade Commission, Everything Old Is New Again: Health Care and Competition in the 21st Century, Prepared Remarks before the 7th Annual Competition in Health Care Forum, Chicago, Illinois (Nov. 7, 2002), available at </speeches/muris/murishealthcarespeech0211.pdf>; Prepared Statement of the Federal Trade Commission before the Committee on Energy and Commerce, Subcommittee on Health, U.S. House of Representatives, Washington, D.C. (Oct. 9, 2002), available at </os/2002/10/generictestimony021009.pdf>; Prepared Statement of the Federal Trade Commission Concerning an Overview of Federal Trade Commission Antitrust Activities before the Committee on the Judiciary, Subcommittee on Antitrust, Competition, and Business and Consumer Rights, Washington, D.C. (Sept.19, 2002), available at </os/2002/09/020919overviewtestimony.htm>.
5. See Muris, Continuity, supra note 1.
6. See supra note 4.
7. n the somewhat more distant past, commentators frequently criticized the FTC for failing to devise a coherent strategy for allocating resources and planning the exercise of its statutory powers. See, e.g., Report of the American Bar Association Commission to Study the Federal Trade Commission 77 (Sept. 15, 1969) ("Many of the present problems of the FTC - including allocation of resources, commitment of time and effort to relatively trivial matters, and extensive delay in the investigation stage of agency action - are traceable to a considerable extent to the fundamental failure to establish goals and priorities and to implement effective planning controls consistent with those goals and priorities."). See also Richard A. Harris & Sidney M. Miklis, The Politics of Regulatory Change 187-89 (2d ed. 1996) (emphasizing that James C. Miller III's contributions to regulatory reform as FTC Chairman consisted substantially of building and implementing a positive agenda rather than simply rolling back unsound policies that he inherited).
8. The Supreme Court has described the broader functions served by the Sherman Act:
It rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and greatest material progress, while at the same time providing an environment conducive to the preservation of our democratic political and social institutions.
Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 4 (1958).
10. William E. Kovacic, Institutional Foundations for Economic Legal Reform in Transition Economics: The Case of Competition Policy and Antitrust Enforcement, 77 Chicago-Kent L. Rev. 265, 269-70 (2001) (describing views of commentators concerning necessary legal framework for a market economy).
11. In addition, the rights conferred by other legal regimes, such as intellectual property law, may appear to conflict with the goals of antitrust. Over the past ten months, the FTC and the Department of Justice have been exploring these issues in our hearings on Competition and Intellectual Property Law and Policy in the Knowledge-Based Economy. We will issue a report on the topic next year. I think the tensions or conflicts are overblown. Properly understood, IP law and antitrust law both seek to promote innovation and enhance consumer welfare. See Timothy J. Muris, Chairman, Federal Trade Commission, Competition and Intellectual Property Policy: The Way Ahead, Prepared Remarks Before the American Bar Association Antitrust Section Fall Forum, Washington, D.C. (Nov. 15, 2001), available at </speeches/muris/intellectual>, The goal of patent and copyright law, as enunciated in Article I, section 8, of the Constitution, is "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." IP law, properly applied, preserves the incentives for scientific and technological progress - i.e., for innovation. Innovation benefits consumers through the development of new and improved goods and services, and spurs economic growth. Similarly, antitrust law, properly applied, promotes innovation and economic growth by combating restraints on vigorous competitive activity. By deterring anticompetitive arrangements and monopolization, antitrust law also ensures that consumers have access to a wide variety of goods and services at competitive prices. Thus, as courts have recognized, both legal regimes "are aimed at encouraging innovation, industry and competition." Atari Games Corp. v. Nintendo of Am., Inc., 897 F.2d 1572, 1576 (Fed. Cir. 1990).
12. Timothy J. Muris, Antitrust's Next Decade, in Betty Bock, Is Antitrust Dead? 55 (1989).
13. See, e.g., Paul L. Joskow & Nancy L. Rose, The Effects of Economic Regulation, in II Handbook of Industrial Organization 1449, 1479-82 (Richard Schmalensee & Robert D. Willig, eds. 1989) (describing U.S. experience with regulation of airlines and trucking).
14. A Citizen's Guide to the Federal Budget: Budget of the United States Government, Fiscal Year 2001 (visited Dec. 6, 2002) <http://w3.access.gpo.gov/usbudget/fy2001/guide01.html>.
16. See OMB, OIRA, Making Sense of Regulation: 2001 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates and State, Local, and Tribal Entities (visited Dec. 6, 2002) <http://www.whitehouse.gov/omb/inforeg/costbenefitreports.pdf>.
17. We also encounter occasional claims that labor law doctrines shelter certain conduct from the antitrust laws. A case in point is Detroit Auto Dealers, in which the respondent auto dealers claimed that their agreement to restrict dealership showroom hours responded to employee demands for shorter hours, and thus was entitled to the non-statutory labor exemption. That claim ultimately failed, but not before a hard-fought and lengthy battle. Detroit Auto Dealers Ass'n, 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).
18. Robert H. Bork, The Antitrust paradox: A Policy at War with Itself 347 (1978).
20. The State of Federal Antitrust Enforcement - 2001: Report of the Task Force on the Federal Antitrust Agencies 42 (2001), available at <http://wwwabanet.org/antitrust/antitrustenforcement.pdf>.
21. Rent seeking is the socially costly pursuit of wealth transfers. See, e.g., Anne O. Kreuger, The Political Economy of the Rent Seeking Society, 64 Am. Econ. Rev. 291 (1974); Jagdish Bhagwati, Directly Unproductive, Profit Seeking Activities, 90 J. Pol. Econ. 988 (1982).
22. 365 U.S. 127 (1961).
23. 381 U.S. 657 (1965).
24. Superior Court Trial Lawyers Ass'n, 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).
25. See infra notes 35-39 and accompanying text (discussing FTC's Biovail case and other matters).
26. Compare Armstrong Surgical Ctr., Inc. v. Armstrong County Mem'l Hosp., 185 F.3d 154 (3d Cir. 1999) (rejecting a misrepresentation exception to Noerr immunity even where deceit may have affected the decision making process in an adjudicatory proceeding) with Kottle v. Northwest Kidney Ctrs., 146 F.3d 1056, 1060 (9th Cir. 1998) ("[I]n the context of a judicial proceeding, if the alleged anticompetitive behavior consists of making intentional misrepresentations to the court, litigation can be deemed a sham if 'a party's knowing fraud upon, or its intentional misrepresentations to, the court deprive the litigation of its legitimacy'" (citing Liberty Lake Inv., Inc. v. Magnuson, 12 F.3d 155, 158 (9th Cir. 1993); Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1260 (9th Cir. 1980)).
27. Some courts, quite properly, have distinguished between genuine "petitioning," which is an argumentative filing before a body exercising a discretionary decision-making function, and mere informational filings, submitted to bodies exercising ministerial functions. See, e.g., In re Buspirone Patent Litigation, 185 F.Supp.2d 363 (S.D. N.Y. 2002); Ticor Title Ins. Co. v. FTC, 998 F.2d 1129, 1138 (3d Cir. 1993); Litton Systems v. American Tel. & Tel. Co., 700 F.2d 785, 807 (2d Cir. 1983); City of Kirkwood v. Union Elec. Co., 671 F.2d 1173, 1181 (8th Cir. 1982); New England Motor Rate Bureau, 112 F.T.C. 200, 284 (1989), vacated on other grounds, 908 F.2d 1064 (1st Cir. 1990).
28. Walker Process Equip., Inc., v. Food Mach. & Chem. Corp., 382 U.S. 172 (1965).
29. 508 U.S. 49 (1993).
30. The FTC also has many non-public inquiries underway raising potential Noerr issues. One example of the type of possible case is AMERCO, which the FTC brought in 1985 when I headed the Bureau of Competition. The complaint alleged that U-Haul and its parent AMERCO attempted to monopolize the market for rental moving equipment by engaging in sham litigation against a competitor, Jartran, in a Chapter 11 reorganization proceeding. The complaint alleged that U-Haul's conduct in the bankruptcy was a sham because it was "intended primarily to delay or prevent Jartran's reorganization as a competitor." Although U-Haul was a creditor of Jartran, in the Chapter 11 proceeding U-Haul acted as a competitor, not as a creditor. AMERCO, et al., 109 F.T.C. 135, 137, Complaint ¶ 19 (1987) (complaint issued June 24, 1985). The Commission later settled the case. 109 F.T.C. 135 (1987).
31. Pursuant to the FDC Act, a brand-name drug manufacturer seeking to market a new drug product must first obtain FDA approval by filing a New Drug Application ("NDA"). At the time the NDA is filed, the NDA filer must also provide the FDA with certain categories of information regarding patents that cover the drug that is the subject of its NDA. 21 U.S.C. § 355(b)(1). Upon receipt of the patent information, the FDA is required to list it in an agency publication entitled "Approved Drug Products with Therapeutic Equivalence," commonly known as the "Orange Book." Id. § 355(j)(7)(A).
32. See 21 C.F.R. § 314.53(f); see also Abbreviated New Drug Application Regulations - Patent and Exclusivity Provisions, 59 Fed. Reg. 50338, 50343 (1994) ("FDA does not have the expertise to review patent information. The agency believes that its resources would be better utilized in reviewing applications rather than reviewing patent claims."); Abbreviated New Drug Application Regulations, 54 Fed. Reg. 28872, 28910 (1989) ("In deciding whether a claim of patent infringement could reasonably be asserted . . . the agency will defer to the information submitted by the NDA applicant.")
33. See In re Buspirone Patent Litigation/In re Buspirone Antitrust Litigation, 185 F. Supp. 2d 363 (S.D.N.Y. 2002) ("Buspirone"). Some of the same plaintiffs previously had sued under the Food, Drug, and Cosmetic Act (FDCA), seeking an order to compel Bristol-Myers to de-list the objectionable patent. Although plaintiffs prevailed before the district court, the Federal Circuit reversed and held that the FDCA provided no private right of action to compel de-listing of a patent from the Orange Book. See Mylan Pharms., Inc. v. Thompson, 268 F.3d 1323, 1331-32 (Fed. Cir. 2001).
34. See discussion infra note 77.
35. Memorandum of Law of Amicus Curiae Federal Trade Commission in Opposition to Defendant's Motion to Dismiss, In re Buspirone Patent Litigation/In re Buspirone Antitrust Litigation, 185 F. Supp. 2d 363 (S.D.N.Y. 2002) (MDL No. 1410 (JAK)) (Brief filed Jan. 8, 2002), available at </os/2002/01/busparbrief.pdf>.
36. In re Buspirone Patent Litigation/In re Buspirone Antitrust Litigation, 185 F. Supp. 2d 363 (S.D.N.Y. 2002).
37 Biovail Corp. Dkt. No. C-4060 (Apr. 23, 2002) (complaint originally issued), available at </os/2002/04/biovailcomplaint.htm>.
40. 317 U.S. 341 (1943).
41. California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980).
42. The possibilities for adverse spillovers are examined in Frank H. Easterbrook, Antitrust and the Economics of Federalism, 26 J.L. & Econ. 23 (1983); Robert P. Inman & Daniel L. Rubinfeld, Making Sense of the Antitrust State Action Doctrine: Balancing Political Participation and Economic Efficiency in Regulatory Federalism, 75 Tex. L. Rev. 1203 (1997).
43. California Retail Liquor Dealers v. Midcal Aluminum, 445 U.S. 97 (1980).
44. See, e.g., Inman & Rubinfeld, supra note 42, at 1271 ("Although the state-action doctrine under Midcal offers citizens a clear political voice in determining regulatory policies within their state, the present doctrine offers no such protection from regulatory policies decided in neighboring states"); Thomas M. Jorde, Antitrust and the New State Action Doctrine: A Return to Deferential Economic Federalism, 75 Cal. L. Rev. 227, 253 (1987) ("[S]pill-over costs are of special concern because they are borne by citizens who do not have the opportunity to participate in the decision to supplant competition with regulation"); Easterbrook, supra note 42, at 45 (asserting that states should be permitted to adopt "any regulations they choose, at any level of government they choose, so long as the residents of the state that adopts the regulation also bear the whole monopoly overcharge) (emphasis in original).
45. FTC v. Ticor Title Ins. Co., 504 U.S. 621 (1992). Ticor was another case filed when I directed the Bureau of Competition in the 1980s.
46. See discussion infra note 49.
47. 445 U.S. 97 (1980).
48. Ticor, 504 U.S. at 634.
49. The Task Force has provided guidance on the active supervision requirement in preparing staff comments and testimony on proposed state legislation in Alaska, Ohio, and Washington seeking to create antitrust exemptions for physician collective bargaining. In each instance, the critical state action issue was whether the oversight regime that the bill proposed satisfied the active supervision requirement. In articulating broader antitrust concerns about the proposed legislation, and specific failings under the state action doctrine, FTC staff suggested specific concrete active supervision standards as improvements. Letter to the Alaska House of Representatives on Senate Bill 37 (Jan. 18, 2002), available at </be/v020003.htm>; Letter to the Washington House of Representatives on House Bill 2360 (Feb. 8, 2002), available at </be/v020009.pdf>; Letter to the Insurance Committee of the Ohio House of Representatives on Ohio House Bill 325 (October 16, 2002), available at </os/2002/10/ohb325.htm>.
50. City of Columbia v. Omni Outdoor Advert., Inc., 499 U.S. 365, 374-75 (1991).
51. There are a number of statutory immunities; generally, these provisions exclude specific industries or activities that are subject to a special regulatory regime or exempt a specific transaction or agreement that has been approved by a federal agency (usually in the context of a regulated industry). For a comprehensive survey, see ABA Section of Antitrust Law, Antitrust Law Developments 1213-44 (5th ed. 2002).
52. In the 107th Congress alone, antitrust exemptions appeared in over twenty pieces of legislation. These exemptions would affect a broad range of different industries, from aviation to cyber security to health care. See, e.g., Children's Protection Act of 2001, S. 124, 107th Cong. (2001); Aviation Delay Prevention Act, S. 633, 107th Cong. (2001); Critical Infrastructure Information Security Act of 2001, S. 1456, 107th Cong. (2001); PREPARE Act, S. 1635, 107th Cong. (2001); Bioterrorism Preparedness Act of 2001, S. 1715, 107th Cong. (2001); Bioterrorism Preparedness Act of 2001, S. 1765, 107th Cong. (2001); Playwrights Licensing Relief Act of 2002, S. 2082, 107th Cong. (2002); Biological, Chemical, and Radiological Weapons Countermeasures Research Act of 2002, S. 3148, 107th Cong. (2002); Need-Based Educational Aid Act of 2001, H.R. 768, 107th Cong. (2001); Equal Protection of Voting Rights Act of 2001, H.R. 1170, 107th Cong. (2001); H.R. 1407, 107th Cong. (2001) (amending title 49, U.S.C., to permit air carriers to meet and discuss their schedules to reduce flight delays, and for other purposes); Cyber Security Information Act, H.R. 2435, 107th Cong. (2001); Bioterrorism Preparedness Act of 2001, H.R. 3310, 107th Cong. (2001); Bioterrorism Preparedness Act of 2001, H.R. 3448, 107th Cong. (2001); PREPARE Act, H.R. 3457, 107th Cong. (2001); Fair Play for Playwrights Act of 2001, H.R. 3543, 107th Cong. (2001); Health Care Antitrust Improvements Act of 2002, H.R. 3897, 107th Cong. (2002); Freelance Writers and Artists Protection Act of 2002, H.R. 4643, 107th Cong. (2002); Standards Development Organization Advancement Act of 2002, H.R. 4849, 107th Cong. (2002); Medical Liability Insurance Crisis Response Act of 2002, H.R. 5253, 107th Cong. (2002).
53. Prepared Statement of the Federal Trade Commission Concerning H.R. 1304, the Quality Health-Care Coalition Act of 1999, Before the Committee on the Judiciary, U.S. House of Representatives (June 22, 1999), available at </os/1999/healthcaretestimony.htm>; Prepared Statement of the Federal Trade Commission on Advertising, Marketing and Antitrust Issues in the Global Tobacco Settlement, Before the Committee on Commerce, Science, and Transportation, U.S. Senate (Mar. 3, 1998), available at </os/1998/9803/tobacc98.tes.htm>; Prepared Statement of the Federal Trade Commission on the Proposed Tobacco Settlement, Before the Subcommittee on Antitrust, Business Rights, and Competition, Committee on the Judiciary, U.S. Senate (Oct. 29, 1997), available at </os/1997/9710/tobacco.tes.HTM>.
54. The Commission has authority under Section 6 of the FTC Act to conduct special studies and issue reports on substantial consumer protection and competition related issues affecting the U.S. economy. 15 U.S.C. § 46.
55. In the fall of 1974, Lewis Engman, then FTC Chairman, gave a speech positing that burdensome federal transportation regulations contributed to the nation's then significant macroeconomic problems. Address by Lewis A. Engman, Chairman, Federal Trade Commission, Before the 1974 Fall Conference of the Financial Analysts Federation, Detroit, Michigan (Oct. 7, 1974). Engman discussed how the Civil Aeronautics Board raised prices by limiting the entry of new carriers and controlling the distribution of airline routes. Id. at 4. He noted that the Interstate Commerce Commission effectively sanctioned price fixing among trucking companies. Id. at 7. Engman concluded that the country's lack of sound competition policy led to higher transportation costs, which in turn hurt the U.S. economy overall. Engman's address may be considered one of the first contemporary examples of successful competition advocacy; his speech, presenting competition policy as a means of addressing the country's pressing economic problems, received substantial coverage in the popular press. See, e.g., New York Times, Oct. 8, 1974, at p.1, col 6. The result was a new interest in deregulating the transportation sector. During the next decade, the Commission aggressively pursued competition advocacy to promote deregulation of airlines, railroads, trucking, and inter-city buses. Although it is difficult to quantify the impact of that advocacy, I believe it is fair to conclude that the Commission's advocacy, later joined by the Antitrust Division, helped create a policy climate that favored liberalizing transport regulation.
56. FTC staff filed an amicus brief opposing barriers to Internet casket sales in a case filed by an Internet-based casket seller against the Oklahoma State Board of Embalmers and Funeral Directors. See Memorandum of Law of Amicus Curiae, The Federal Trade Commission, Kim Powers v. Joe Harris, Case No. Civ-01-445-F (W.D. Oka. Sept. 6, 2002), available at </os/2002/09/okamicus.pdf>.The private suit alleged that Oklahoma's Funeral Services Licensing Act (FSLA), which requires all sellers of funeral goods to be licensed funeral directors, violates the Interstate Commerce Clause of the United States Constitution. In response to this lawsuit, the State Board argued that if the intent of the FTC's Funeral Rule is to protect vulnerable consumers in their purchasing decisions, then all suppliers of funeral goods should be subject to the same regulation. The FTC's brief clarified that the Funeral Rule was adopted, in part, to open up casket sales to competition from sellers other than funeral directors, and not to restrict competition only to funeral directors.
57. 57 See earlier discussion of BuSpar, supra notes 32-36 and accompanying text.
58. Recent advocacy of this type include an amicus brief challenging an award of attorney fees to another private class counsel in a case prosecuted principally by government attorneys and opposing a non-pecuniary "coupon" settlement that offered class members inadequate relief. See Federal Trade Commission's Memorandum of Points and Authorities in Opposition to Class Plaintiffs' Petition for Award of Counsel Fees and Reimbursement of Expenses, In re First Databank Antitrust Litigation, Master File No. 1:01CV00879 (TPJ) (D.D. Cir. Jan. 2, 2002), available at </os/2002/01/hearstbrief.pdf>; Federal Trade Commission's Memorandum of Law of Amicus Curiae, Erikson v. Ameritech, No. 99 CH 18873 (Cook County Cir. Ct., Ch. Div. June 21, 2002), available at </os/2002/06/eriksonmemo.pdf>.
59. FTC experience also highlights another component of successful advocacy: once the agency gets involved, it needs to stay involved because those with an interest in limiting competition typically will respond. For example, the initial response to the recent FTC letter to the North Carolina State Bar was both favorable and a catalyst for additional action by those with an interest in limiting choice for consumers. See Joint Letter from the Federal Trade Commission and the Department of Justice, Antitrust Division, to North Carolina State Bar, Ethics Committee (Dec. 14, 2001), available at </be/V020006.htm>. Additional comments have been filed and more may be warranted. See Joint Letter from the Federal Trade Commission and the Department of Justice, Antitrust Division, to E. Fitzgerald Parnell III, President, North Caroline State Bar (July 11, 2002), available at </os/2002/07/non-attorneyinvolvement.pdf>; see also Joint Letter from the Federal Trade Commission and the Department of Justice, Antitrust Division, to the Honorable John B. Harwood, Speaker of the House, Rhode Island Legislature (Mar. 29, 2002), available at </opa/2002/04/rirealestate.htm>. Moreover, Commission staff have twice traveled to North Carolina to testify about the likely impact on consumers of overly broad restrictions on real estate closings and refinancings.
60. Three decades after Lewis Engman's speech (see note 55, supra), the effort to deregulate sectors of our economy continues. Currently, the most intense focus is on the deregulation of electricity markets. The FTC, in the last eighteen months, has filed comments on a number of FERC proposals to make electricity markets more competitive. FERC, Docket No. RM01-12 (Remedying Undue Discrimination Through Open Access Transmission Service and Standard Electricity Market Design) (Nov. 15, 2002); FERC, Docket No. RM01-12 (Working Paper on Standardized Transmission Service and Wholesale Electric Market Design) (Jul. 23, 2002); FERC, Docket No. RM01-12 (Electricity Market Design and Structure: RTO Cost/Benefit Analysis Report) (Apr. 23, 2002); FERC, Docket No. RM01-12 (Electricity Market Design and Structure: Strawman Discussion Paper for Market Power Monitoring and Mitigation) (Apr. 3, 2002); FERC, Docket No. EL01-118 (Investigation of Terms and Conditions of Public Utility Market-Based Rate Authorization; Order Establishing Refund Effective Date and Proposal to Revise Market-Based Rate Authority) (Jan. 7, 2002); FERC, Docket No. RM02-1 (Interconnection Standards) (Dec. 21, 2001); FERC, Docket No. RM01-10 (Standards of Conduct for Transmission Providers) (Dec. 20, 2001).
In addition, last year the Commission released a staff study of the efforts of numerous states to deregulate the retail provision of electricity. FTC, Competition and Consumer Protection Perspectives on Electric Power Regulatory Reform: Focus on Retail Competition: A Report by the Federal Trade Commission Staff (Sept. 2001) (examining which features of various state retail electricity programs have resulted in consumer benefits and those that have not, and examining jurisdictional limits on the states' authority to design successful retail competition plans), available at </reports/elec/electricityreport.pdf>.
The Commission also has filed staff comments arguing against the imposition of a "below cost" prohibition in the sale of retail gasoline. The staff advised that such legislation is unnecessary because antitrust laws already prohibit anticompetitive pricing and that an absolute ban on below-cost pricing has significant potential to be anticompetitive. Letter to the Virginia House of Delegates on Senate Bill No. 458 (Feb. 15, 2002), available at </be/V020011.htm>; Letter to Governor George E. Pataki, The State of New York (Aug. 8, 2002), available at </opp/advocacy/v020019.pdf>.
61. FTC staff submitted written comments on proposed legislation in Alaska, Washington State, and Ohio that would have authorized competing physicians to engage in collective bargaining with health plans over fees and other terms. Letter to the Alaska House of Representatives on Senate Bill 37 (Jan. 18, 2002), available at </be/v020003.htm>; Letter to the Washington House of Representatives on House Bill 2360 (Feb. 8, 2002), available at </be/v020009.pdf>; Letter to the Insurance Committee of the Ohio House of Representatives on Ohio House Bill 325 (Oct. 16, 2002), available at </os/2002/10/ohb325.htm>. In all three instances, the staff concluded that the proposal would significantly increase health care costs and harm consumers.
62. During the past three decades, a combination of court cases involving First Amendment challenges and FTC cases and advocacy before regulatory bodies has eliminated most barriers to truthful, non-deceptive advertising by professionals. See Timothy J. Muris, Chairman, Federal Trade Commission, Creating a Culture of Competition: Advocacy, Prepared Remarks Before the International Competition Network, Panel on Competition Advocacy & Antitrust Authorities, Naples, Italy (Sept. 28, 2002), available here. As a result, prices have decreased. We remain attentive to this area, however, as efforts to establish exemptions continue. This past October, the staff provided comments to the Alabama Supreme Court on attorney advertising rules, urging that any restrictions should be tailored to prevent unfair or deceptive acts or practices while avoiding overly broad restrictions that prevent the communication of truthful and non-deceptive information that would likely inhibit competition and frustrate informed consumer choice. Letter to Robert G. Esdale, Clerk of the Court, Supreme Court of Alabama (Sept. 30, 2002), available at </opp/advocacy/v020023.pdf>.
63. See discussion infra, II.B.
64. For example, In response to a request for public comment by the Department of Housing and Urban Development (HUD), on October 28, FTC staff filed a comment on HUD's proposed amendments to the regulations implementing the Real Estate Settlement Procedures Act (RESPA), which governs settlement fees paid by home buyers. The goal of these changes, according to HUD, is to make mortgage shopping more effective and to decrease search costs, thereby eventually leading to increased competition. The staff supported HUD's goals. FTC Staff Comments, Request for Comment on Proposed Amendments to the Regulations Implementing the Real Estate Settlement Procedures Act, Dkt. No. FR-4727-P-01, Before the Department of Housing and Urban Development (Oct. 28, 2002), available at </be/v030001.pdf>; see also FTC Staff Comments, Study of Unique Gasoline Fuel Blends ("Boutique Fuels"), Effects on Fuel Supply and Distribution and Potential Improvements, Dkt. No. A-2001-20, Before the Environmental Protection Agency (Jan. 30, 2002), available at </bc/v020004.pdf>; FTC Staff Comment, Citizen Petitions; Actions that Can be Requested by Petition; Denials, Withdrawals, and Referrals for Other Administrative Action, Dkt. No. 99N-2497, Before the Food & Drug Administration (Mar. 2, 2000), available at </be/v000005.pdf>. Another example can be found in the Commission's recent written comments to the Judicial Conference on its proposed amendments to Federal Rule of Civil Procedure 23, governing class actions. Letter to the Judicial Conference on Proposed Amendments to Rule 23 of the Federal Rules of Civil Procedure (Feb. 15, 2002), available at </os/2002/02/rule23letter.pdf>.
65. The centrality of Robinson Patman cases in the FTC's competition enforcement program from 1936 through 1969 is documented in Judge Richard A. Posner's A Statistical Study of Antitrust Enforcement, 13 J. L. & Econ. 365, 369-70, 404-09 (1970).
66. The consensus of critical commentary formed decades ago and has not changed. See Report of the American Bar Association Commission to Study the Federal Trade Commission 67-68 (Sept. 15, 1969) (criticizing FTC Robinson Patman enforcement). The relevant criticisms are collected in Timothy J. Muris, Economics and Antitrust, 5 Geo. Mason L. Rev. 303 (1997); Wesley J. Liebeler, Bureau of Competition: Antitrust Enforcement Activities, in The Federal Trade Commission Since 1970: Economic Regulation and Bureaucratic Behavior 65 (Kenneth W. Clarkson & Timothy J. Muris eds., 1981).
67. These studies and the concentration debate are summarized in Industrial Concentration: The New Learning (Harvey Goldschmid et al. eds, 1974).
68. Exxon Corp., 98 F.T.C. 453, 461 (1981) (dismissing complaint alleging agreement to monopolize and maintenance of a noncompetitive market structure). See also William E. Kovacic, Failed Expectations: The Troubled Past and Uncertain Future of the Sherman Act As a Tool For Deconcentration, 74 Iowa L. Rev. 1105, 1107-09 & n. 20 (1989) (discussing prosecution of the Exxon case).
69. Wesley J. Liebeler, Bureau of Competition: Antitrust Enforcement Activities, in The Federal Trade Commission Since 1970: Economic Regulation and Bureaucratic Behavior 65 (Kenneth W. Clarkson & Timothy J. Muris eds., 1981); Timothy J. Muris, Economics and Antitrust, 5 Geo. Mason L. Rev. 303 (1997).
70. Two notable illustrations are Continental T.V., Inc., v. GTE Sylvania Inc., 433 U.S. 36 (1977) and Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1 (1979). The formative role of the federal courts in focusing antitrust doctrine on proscribing demonstrable economic harm is traced in Terry Calvani and Michael L. Sibarium, Antitrust Today: Maturity or Decline, 35 Antitrust Bull. 123 (1990).
71. On Jim Miller's contributions at the FTC, see Thomas F. Walton & James Langenfeld, Regulatory Reform under Reagan - The Right Way and the Wrong Way, in Regulation and the Reagan Era 41 (Roger E. Meiners & Bruce Yandle, eds., 1989). On Bill Baxter's contributions at the Antitrust Division, see Thomas B. Leary, The Essential Stability of U.S. Merger Policy, 70 Antitrust L.J. 105, 113-15 (2002); Richard Schmalensee, Bill Baxter in the Antitrust Arena: An Economist's Appreciation, 51 Stanford L. Rev. 1317, 1323-30 (1999).
72. As had some previous Commissions, FTC leadership during the Carter administration suggested that the FTC should pursue multiple objectives in its antitrust policy. Michael Pertschuk, Chairman, Federal Trade Commission, New Directions for the FTC, Prepared Remarks Before the Eleventh New England Antitrust Conference, Boston, Massachusetts (Nov. 18, 1977).
73. Thomas B. Leary, Commissioner, Federal Trade Commission, The Essential Stability of Merger Policy in the United States, Prepared Remarks for the Joint U.S./E.U. Conference, Paris, France (Jan. 17, 2002), available at </speeches/leary/learyuseu.htm>. See FTC v. Swedish Match, 131 F. Supp. 2d 151 (D.D.C. 2000); FTC v. Cardinal Health, Inc., 12 F. Supp. 2d 34 (D.D.C. 1998); FTC v. Staples, Inc., 970 F. Supp. 1066 (D.D.C. 1997).
74. The Honorable Anne K. Bingaman, Antitrust Enforcement: Some Initial Thoughts and Actions, Address Before the Antitrust Section of the American Bar Association (Aug. 10, 1993).
75. In recent years, the FTC has initiated few Robinson Patman Act cases. See McCormick & Co., No. C-3939, 2000 FTC LEXIS 43, *1 (Apr. 27, 2000).
76. For example, in the 1980s, the FTC pursured several cases that had a significant impact on the development of antitrust law. A partial list of noteworthy matters which were initiated or continued enthusiastically in this period includes: FTC v. Ticor Title Ins. Co., 504 U.S. 621 (1992); Superior Court Trial Lawyers Ass'n, 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);FTC v. Indiana Fed'n of Dentists, 476 U.S. 447 (1986); Masschusetts Bd. of Registration in Optometry, 110 F.T.C. 549 (1988); Detroit Auto Dealers Ass'n, 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).
77. See Biovail Corp. Dkt. No. C-4060 (Oct. 2, 2002) (consent order), available at </os/caselist/c4060.htm>; Schering Plough Corp., Dkt. No. D-9297 (Apr. 2, 2002) (consent order as to American Home Products); Hoechst Marion Roussel, Inc., Dkt. No. D-9293 (May 8, 2001) (consent order), available at </os/2001/05/hoechstdo.pdf>; Abbott Labs., Dkt. No. C-3945 (May 22, 2000) (consent order), available at </os/2000/03/abbot.do.htm>; Geneva Pharm., Inc., Dkt. No. C-3946 (May 22, 2000) (consent order), available at </os/2000/03/genevad&o.htm>; Dell Computer Corp., 121 F.T.C. 616 (1996) (consent order). In addition, two matters remain in litigation. See Schering Plough Corp., Dkt. No. 9297 (June 27, 2002) (initial decision) (appeal pending before Commission), available at </os/caselist/d9297.htm>; Rambus Inc., Dkt. No. 9302 (June 18, 2002) (complaint issued) (pending before administrative law judge), available at </os/2002/06/rambuscmp.htm>.
78. This model is reflected in Judge Bork's treatise, The Antitrust Paradox.
79. See, e.g., Organization for Economic Cooperation and Development, Recommendation of the Council Concerning Effective Action Against Hard Core Cartels, OECD C(98)35 (1998) (calling hard core cartels "the most egregious violations of competition law"); Robert H. Lande & Howard P. Marvel, The Three Types of Collusion: Fixing Prices, Rivals, and Rules, 2000 Wis. L. Rev. 941, 941 ("Antitrust law has long held collusion to be paramount among the offenses that it is charged with prohibiting").
80. The Department of Justice laid this foundation in 1982 by issuing a thorough revision of merger guidelines first released in 1968. In 1992, the Justice Department and the FTC issued joint horizontal merger guidelines and revised them in 1997. The 1982 guidelines and their successor versions have exercised a profound influence over merger policy. See Timothy J. Muris, Prepared Remarks on the Occasion of the Celebration of the Twentieth Anniversary of the 1982 Merger Guidelines, U.S. Department of Justice, Washington, D.C. (June 10, 2002), available at </speeches/muris/1982mergerguidelines>. The acceptance of the Horizontal Merger Guidelines framework is illustrated by the Commission's recent merger case decisions. In the last several years, almost all Commission decisions to close an investigation or pursue a challenge, either through a consent order or litigation, have been unanimous.
81. The overall frequency of FTC intervention concerning mergers is generally consistent with modern historical norms. In fiscal years 2001 and 2002, the FTC undertook enforcement actions in 23 and 24 matters, respectively. In fiscal years 1997 and 1997, when the U.S. economy experienced comparable levels of merger activity, the FTC had 27 enforcement matters in each year. See Joseph J. Simons, Director, Bureau of Competition, Merger Enforcement at the FTC, Prepared Remarks before the Tenth Annual Golden State Antitrust and Unfair Competition Law Institute, Santa Monica, California (Oct. 24, 2002), available at </speeches/other/021024mergerenforcement.htm>. For other accounts of recent FTC merger enforcement activity, see Prepared Statement of the FTC on Reauthorization, Before the Subcommittee on Consumer Affairs, Foreign Commerce, and Tourism of the Committee on Commerce, Science, and Transportation, U.S. Senate (July 17, 2002); Prepared Statement of the FTC Concerning an Overview of FTC Antitrust Activities, Before the Committee on the Judiciary, Subcommittee on Antitrust, Competition, and Business and Consumer Rights, U.S. Senate (Sept. 19, 2002); FTC, Building on A Strong Foundation: The FTC Year in Review 2-3 (Apr. 2002).
82. In the past year, the Commission has reached settlements with five groups of physicians for allegedly colluding to raise consumers' costs. Three of the cases are in Denver, one is in Napa, and one is in Dallas-Fort Worth. The number of physicians involved ranged from eight in Napa to more than twelve hundred in Dallas-Fort Worth. To resolve these matters, the physicians agreed to refrain from engaging in similar conduct in the future, to take certain measures to ensure compliance with the consent judgment, and, in one instance, to dissolve the organization through which the physicians conducted their alleged anticompetitive activity. See, e.g., System Health Providers, Inc., No. C-4064, 2002 FTC LEXIS 61, *1 (Oct. 24, 2002) (consent order); R. T. Welter & Assocs., Inc. (Professionals in Women's Care), No. C-4063, 2002 FTC LEXIS 59, *1 (Oct. 8, 2002) (consent order); Physician Integrated Servs. of Denver, Inc., No. C-4054, 2002 FTC LEXIS 38, *1 (July 16, 2002) (consent order); Aurora Associated Primary Care Physicians, L.L.C., No. C-4055, 2002 FTC LEXIS 39, *1 (July 16, 2002) (consent order); Obstetrics and Gynecology Med. Corp. of Napa Valley, No. C-4048 (May 14, 2002) (consent order), available at </os/2002/05/obgyndo.pdf>. In three of the cases, the FTC also obtained relief against the consultants who were involved in coordinating the alleged collusive conduct.
83. The Commission recently accepted a consent agreement from the American Institute for Conservation of Historic and Artistic Works to settle charges that the organization encouraged its 3,100 members to engage in anticompetitive behavior. American Institute for Conservation of Historic and Artistic Works, FTC Docket No. C-4065 (Oct. 30, 2002) (consent order). The organization's professional code deemed it "unprofessional behavior" to work at either reduced rates or at no charge, except under limited circumstances.
In another case, the Commission recently accepted for public comment a proposed consent order with the National Academy of Arbitrators (NAA) which would require the group to remove restrictions on truthful advertising and solicitation from its Code of Professional Responsibility. According to the Commission's proposed complaint, NAA violated the FTC Act by acting as a combination of its members and in agreement with its members to restrain competition by restricting advertising and solicitation by its members. The effect of these restrictions was to injure consumers of labor management arbitrators of the benefits of truthful, non-deceptive information and of free and open competition among arbitrators. The restraints were incorporated into NAA's Code of Professional Responsibility for Arbitrators of Labor Management Disputes and its Formal Advisory Opinions. National Academy of Arbitrators, FTC File No. 011-0242 (Dec. 3, 2002) (proposed complaint and consent order), available at </os/2002/12/naado.pdf>.
84. As I have discussed elsewhere, the Commission's existing pharmaceutical cases fall into three broad categories. The initial cases focused on agreements between branded and generic drug manufacturers that allegedly delayed the entry of generic drugs. These agreements settled patent infringement litigation brought by the branded drug manufacturer against the generic drug manufacturer. Although settlement of patent infringement litigation can be efficient and pro-competitive, certain agreements can delay generic entry by "parking" the 180-day marketing exclusivity provided by the Hatch-Waxman Amendments. The Commission has aggressively targeted such alleged agreements and obtained consent judgments in two such cases. See Abbott Labs., Dkt. No. C-3945 (May 22, 2000) (consent order), available at </os/2000/03/abbot.do.htm>; Geneva Pharm., Inc., Dkt. No. C-3946 (May 22, 2000) (consent order), available at </os/2000/03/genevad&o.htm>; Hoechst Marion Roussel, Inc., Dkt. No. D-9293 (May 8, 2001) (consent order), available at </os/2001/05/hoechstdo.pdf>. In a third case, the Commission entered a consent judgment against one firm and the case against the other two respondents is currently pending before the Commission. See Schering Plough Corp., Dkt. No. D-9297 (Apr. 2, 2002) (consent order as to American Home Products); Schering Plough Corp., Dkt. No. D-9297 (June 27, 2002) (initial decision), available at </os/caselist/d9297.htm>.
The Commission's second-generation pharmaceutical cases involved unilateral action by branded drug manufacturers. The Commission alleged that improper Orange Book listing constituted anticompetitive abuse of the Hatch-Waxman process by creating the possibility of obtaining unwarranted 30-month stays of FDA approval of generic drug products. See Biovail Corp. Dkt. No. C-4060 (Oct. 2, 2002) (consent order), available at </os/caselist/c4060.htm>. Such conduct raises Noerr-Pennington issues, discussed supra. The Commission has also brought one case alleging an agreement among manufacturers of generic drugs not to compete against one another. See Biovail Corp. and Elan Corp., No. C-4057, 2002 FTC LEXIS 46, *1 (Aug. 15, 2002).
85. See Timothy J. Muris, The FTC and the Law of Monopolization, 67 Antitrust L.J. 693 (2000).
86. E.g., Biovail Corp., Dkt. No. C-4060 (Oct. 2, 2002) (consent order), available at </os/caselist/c4060.htm>; Abbott Labs., Dkt. No. C-3945 (May 22, 2000) (consent order), available at </os/2000/03/abbot.do.htm>; Geneva Pharm., Inc., Dkt. No. C-3946 (May 22, 2000) (consent order), available at </os/2000/03/genevad&o.htm>; AMERCO & U-Haul Intel, Inc., 109 F.T.C. 135 (1987) (consent order) (complaint originally filed June 24, 1985).
87. Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself 159 (1978).
88. 106 F.T.C. 324 (1985) (consent order).
89. Dell Computer Corp., 121 F.T.C. 616 (1996) (consent order). That case involved the alleged failure of a participant in a standard setting process to disclose its patent position, contrary to the rules of the organization, and then, after its technology was adopted in the standard, the company sought to enforce the patent. Such conduct can result in higher costs for consumers when there are substantial costs in switching to an alternative technology. The competitive danger is greater in these IP cases than in some other standard setting situations because of the risk of monopolization by a single firm. In addition, patent obstacles may make the monopoly more durable than it would otherwise be.
Rambus's anticompetitive scheme involved participating in the work of an industry standard-setting organization, known as JEDEC, without making it known to JEDEC or to its members that Rambus was actively working to develop, and did in fact possess, both patents and pending patent applications that involved specific technologies proposed for and ultimately adopted in the relevant standards. By concealing this information - in violation of JEDEC's own operating rules and procedures - and through other bad-faith, deceptive conduct, Rambus purposefully sought to and did convey to JEDEC the materially false and misleading impression that it possessed no relevant intellectual property rights. Rambus's anticompetitive scheme further entailed perfecting its patent rights over those same technologies and then, once the standards had become widely adopted within the DRAM industry, enforcing such patents worldwide against companies manufacturing memory products in compliance with the standards.
Complaint ¶ 2.
91. See, e.g., Thomas B. Leary, Efficiencies and Antitrust: A Story of Ongoing Evolution, Prepared Remarks before ABA Section of Antitrust Law, 2002 Fall Forum, Washington, D.C (Nov. 8, 2002), available at </speeches/leary/efficienciesandantitrust.htm>.
92. See Press Release, FTC Seeks to Block Cytyc Corp.'s Acquisition of Digene Corp. (June 24, 2002), available at </opa/2002/06/cytyc_digene.htm>; Press Release, Federal Trade Commission Votes to Close Investigation of Acquisition of Avant! Corporation by Synopsys, Inc. (July 26, 2002), available at </opa/2002/07/avant.htm>. See also: Statement of Commissioner Thomas B. Leary, Synopsys Inc./Avant! Corporation, File No. 021-0049, available at </os/2002/07/avantlearystmnt.htm>; Statement of Commissioner Sheila F. Anthony, Synopsys Inc./Avant! Corporation, File No. 021-0049, available at </os/2002/07/advantanthonystmnt.htm>; Statement of Commissioner Mozelle W. Thompson, Synopsys Inc./Avant! Corporation, File No. 021-0049, available at </os/2002/07/avantthompsonstmnt.htm>.
93. See supra notes 49, 54, 58-62 and accompanying text.
94. See FTC, Generic Drug Entry Prior to Patent Expiration: An FTC Study (July 2002) (examining whether conduct the FTC has challenged in the pharmaceutical industry represented isolated instances or is more typical; providing recommendations to eliminate possible gaming of the 180-day exclusivity and the 30-month stay provisions of Hatch-Waxman Amendments), available at </os/2002/07/genericdrugstudy.pdf>.
95. In October, President Bush announced that the Food and Drug Administration would take regulatory action to curb the most important problem we identified. President Takes Action to Lower Prescription Drug Prices by Improving Access to Generic Drugs (visited Dec. 6, 2002) <http://www.whitehouse.gov/news/releases/2002/10/20021021-4.html>.
96. These comments include: (1) joint comments with the Department of Justice in North Carolina and Rhode Island opposing proposals to require the physical presence of attorneys at real estate closings and refinancings, to the detriment of consumer choice and Internet lenders; see FTC/DOJ Letter to the Ethics Committee of the North Carolina State Bar re: State Bar Opinions Restricting Involvement of Non-Attorneys in Real Estate Closings and Refinancing Transactions (Dec. 14, 2001), available at </policy/policy-actions/advocacy-filings/2001/12/ftc-and-department-justice-comment-ethics-committee>; FTC/DOJ Letter to the Ethics Committee of the North Carolina State Bar (June 11, 2001) available at </os/2002/07/non-attorneyinvolvment.pdf>; FTC/DOJ Letter to the Rhode Island House of Representatives re: Bill Restricting Competition from Non-Attorneys in Real Estate Closing Activities (Mar. 29, 2002), available at </be/v020013.pdf>; (2) a comment before the Connecticut Board of Opticians opposing efforts to restrict the Internet sale of replacement disposable contact lenses, see FTC Staff Comment Before the Connecticut Board of Examiners for Opticians (Mar. 27, 2002), available at </sites/default/files/documents/advocacy_documents/ftc-staff-comment-connecticut-board-examiners-opticians-intervenor-re-declaratory-ruling-proceeding/v020007.pdf>; and (3) an amicus brief in pending federal litigation concerning efforts by a state funeral board to restrict the online sale of caskets, see Powers v. Harris, No. Civ. 01-445-F (W.D. Okla. filed Mar. 14, 2001).
97. Those industries include: retailing, automobile sales, cybercharter schools, real estate/mortgages/financial services, telemedicine/online pharmaceutical sales, wine sales, auctions, online legal practice, contact lens sales, and casket sales. See News Release Announcing Workshop (Sept. 20, 2002) available at /opa/2002/09/ecomagenda.htm; Home Page for Workshop available at/opp/ecommerce/anticompetitive/index.htm.
98. Prepared Statement on State Impediments to E-Commerce: Consumer Protection or Veiled Protectionism?: Hearing Before the House Subcomm. on Commerce, Trade, and Consumer Protection (Sept. 26, 2002) (statement of R. Ted Cruz, FTC's Director of Policy Planning), available at <http://www.energycommerce.house.gov/107/hearings/09262002Hearing732/Cruz1202.htm>.
102. Rambus, Inc., Dkt. No. 9302 (June 18, 2002) (complaint issued) (pending before administrative law judge), available at </os/2002/06/rambuscmp.htm>. A fifth matter commenced in mid-2001, MSC, has been settled. MSC Software Corp., Dkt. No. D-9299 (Nov. 1, 2002) (decision and order), available at </os/caselist/d9299.htm>.
103. See William E. Kovacic, Evaluating Antitrust Experiments: Using Ex Post Assessments of Government Enforcement Decisions to Inform Competition Policy, 9 Geo. Mason L. Rev. 843 (2001) (describing how analysis of past cases can improve future government antitrust enforcement). See also Empirical Industrial Organization Roundtable, Before the Federal Trade Commission (Sept. 11, 2001), available at </be/empiricalioroundtabletranscript.pdf>.
104. Interview with David Scheffman, the FTC's New Director of the Bureau of Economics, ABA Section of Antitrust Law, Brown Bag Program (Sept. 26, 2001), available at </be/scheffman.pdf>; Empirical Industrial Organization Roundtable, Before the Federal Trade Commission (Sept. 11, 2001), available at </be/empiricalioroundtabletranscript.pdf>; Paul A. Paulter, Evidence on Mergers & Acquisitions (Sept. 25, 2001) (Working Paper), available at </be/workpapers/wp243.pdf>; David T. Scheffman & Mary T. Coleman, FTC Perspectives on the Use of Econometric Analyses in Antitrust Cases, (draft document, undated), available at </be/ftcperspectivesoneconometrics.pdf>; David T. Scheffman & Mary T. Coleman, Current Economic Issues at the FTC (undated), available at </be/hilites/riofinal.pdf>.
105. The Commission is in the midst of a retrospective study of consummated hospital mergers. The Bureaus of Economics and Competition are evaluating the effects of hospital mergers in several cities. Timothy J. Muris, Chairman, Federal Trade Commission, Everything Old is New Again: Health Care and Competition in the 21st Century, Prepared Remarks Before the 7th Annual Competition in Health Care Forum, Chicago, Illinois (Nov. 7, 2002), available at </speeches/muris/murishealthcarespeech0211.pdf>.
106. The FTC will publish two reports in the upcoming year on the petroleum industry in the United States. The first will detail merger and acquisition activity by major petroleum companies and structural changes in the industry, while the second will provide an extensive review of the factors affecting the level and volatility of prices of refined petroleum products and their trends nationwide. The Commission has held two public conferences on factors that affect the price of refined petroleum products. The agendas for these conferences, as well as the transcripts of the discussion and copies of public comments received, are available at: </bc/gasconf/index.htm>.
107. Commission staff have developed a statistical model to identify and monitor unusual gasoline price movements in 360 cities across the country. This model allows FTC staff to track prices on a 'real-time' basis and to identify as quickly as possible the contributing factors to any price spikes.
108. See infra note 111 and accompanying text (describing FTC workshop on Health Care & Competition Law and Policy). See also supra note 94 and accompanying text (discussing FTC's generic drug study). FTC also completed an empirical study of the performance of the Hatch-Waxman Amendments this summer. See text III.A and notes 94-95, supra.
109. The e-commerce workshop and the formation of the Internet Task Force, among others, are having an effect.
110. Public Hearings: Competition and Intellectual Property Law and Policy in the Knowledge-Based Economy, 66 Fed. Reg. 58,146 (Nov. 20, 2001). A report will be issued later on these hearings.
111. Materials from the workshop are available at </ogc/healthcare/index.htm>. See Press Release, FTC Chairman Announces Public Hearings on Health Care and Competition Law and Policy to Begin in February 2003 (Nov. 7, 2002), available at </opa/2002/11/murishealthcare.htm>.
112. See, e.g., International Competition Policy Advisory Committee to the Assistant Attorney General for Antitrust, Final Report 48, 142-54, App. 2-C & App. 3-B (2000) (documenting growing multiplicity of government bodies involved in merger control within the U.S. and around the world).
113. See, e.g., Statement of the Federal Trade Commission Concerning Royal Caribbean Cruises, Ltd./P&O Princess Cruises plc and Carnival Corp./P&O Princess Cruises plc, FTC File No. 021-0041 (visited Dec. 6, 2002) </os/2002/10/cruisestatement.htm>.
114. See, e.g., FTC Press Release, The Urge to Merge -- FTC Provides Details on Upcoming Washington, D.C. Workshops on Best Practices (May 21, 2002) (announcing public workshops to solicit views about possible improvements in merger investigation techniques), available at </opa/2002/05/bdpc>.
115. My views about the importance of our cooperation with the EU are spelled out in Timothy J. Muris, Chairman, Federal Trade Commission, Merger Enforcement in a World of Multiple Arbiters, Prepared Remarks before the Brookings Institution Roundtable on Trade and Investment Policy, Washington, D.C. (Dec. 21, 2001), available at </speeches/muris/brookings.pdf>.
116. See, e.g., US-EU Merger Working Group, Best Practices on Cooperation in Merger Investigations (Oct. 30, 2002) (presenting best practices developed by joint working group of U.S. and EU staff lawyers and economists for coordinating future merger reviews), available at </opa/2002/10/mergerbestpractices.htm>.
117. The principles and best practices appear, respectively, at <http://internationalcompetitionnetwork.org/wg1.principles.html> and <http://internationalcompetitionnetwork.org/wg1.practices.html>.
118. For a more elaborate discussion of this possibility, see Timothy J. Muris, Chairman, Federal Trade Commission, The Interface of Competition and Consumer Protection, Prepared Remarks at The Fordham Corporate Law Institute's Twenty-Ninth Annual Conference on International Antitrust Law and Policy, New York City (Oct. 31, 2002), available at </speeches/muris/021031fordham.pdf>.