Competition Rulemaking: The Case for Boldness

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This chapter makes the case for competition rulemaking and for boldness on the part of the FTC. Relevant statutory language, despite its terseness and generality, grants that authority; National Petroleum endorsed this reading of the provision, and the case was left undisturbed by subsequent congressional action with respect to competition rulemaking. Despite recent judicial trends concerning deference and the nondelegation doctrine, the agency’s interpretation of the relevant statutory provision would likely continue to enjoy Chevron deference; moreover, the general grant of competition rulemaking authority in the FTC Act is unlikely to be categorically deemed unconstitutional. From a policy perspective, overcaution risks missing opportunities for the FTC to do more to fulfill its competition protection mandate. Predicting judicial reaction to agency “overreach” is difficult, and overthinking potential judicial backlash can be counterproductive. Using examples of past bold, and successful, rulemaking by other agencies, I argue there is precedent for pushing the limits in FTC rulemaking in exceptional and appropriate circumstances.