Past, Present, and Future of Antitrust Enforcement at the Federal Trade Commission

The period from 1970 to the present - roughly a third of a century - has witnessed profound changes in the quality of regulation at the Federal Trade Commission and a remarkable convergence of antitrust enforcement policy between left and right, and between primarily legal as opposed to primarily economic approaches. With respect to substantive law, areas of intellectual debate and uncertainty remain, but viewpoint differences that existed between the 1960s and the 1980s are today vastly reduced. In the 1960s, emphasis was on populist values, hostility to Bigness, protection of competitors (especially small business) as opposed to the competitive process, and neglect of or outright hostility toward efficiencies. In the 1980s, at least late in the decade, we saw extreme economic analysis that regarded most horizontal agreements as so unstable that they would collapse of their own weight and barriers to entry as generally easily surmounted. That approach led to little or no enforcement outside the area of hardcore cartels (price fixing, market division, and output limitations - all of which saw a fairly standard level of enforcement throughout the thirty-five-year period) and challenges to a few very large horizontal mergers. Since the early 1990s, the effort at the Federal Trade Commission, and elsewhere in the antitrust world, has been to find a middle ground that avoids the extremes of over- and underenforcement