FTC’s Ferguson Wants to Avoid Political Cycle on Merger Guidelines

The FTC’s merger guidelines will become “useless” if they are rescinded each time an opposing party takes power, FTC Commissioner Andrew Ferguson said Thursday.

Republican commissioners and industry groups criticized FTC Chair Lina Khan’s majority-backed decision to withdraw from the agency’s guidelines with DOJ in 2021 (see 2109150061). Industry groups have claimed the new guidelines implemented by the FTC and DOJ Antitrust Division Chief Jonathan Kanter insert more political influence into the review and judicial process. CTA recently said the updated document relies on “nebulous” claims about antitrust enforcement (see 2406050051).

Speaking on a George Mason University livestream, Ferguson noted the guidelines have been consistently updated since the 1960s, and the document provides stability and certainty to antitrust litigation. “I don’t think we should get into a cycle where we are rescinding guidelines every time the chairmanship changes hands,” he said. “The guidelines will become useless to everyone if everyone believes they just embody the very particular preferences of a particular party.”

Ferguson said he’s open to the commission periodically “reforming” the document to reflect changes in laws the agencies are enforcing. “But just categorical rescission and starting over ... doesn’t lend itself to agency credibility,” he said. “If the agencies are rescinding these over and over, the guidelines don’t become trustworthy.”

Ferguson said Big Tech will be a major focus for him while in office. He discussed his role as Virginia solicitor general when the state joined DOJ, California, Colorado, Connecticut, New Jersey, New York, Rhode Island and Tennessee in suing Google in 2023 over its monopolization of the digital ad market. “Big Tech is the issue in which I’m most interested,” he said, noting the Google case helped inform his views about antitrust.

There has been a lack of political will to apply traditional antitrust theories to digital markets, he said. Enforcers in the Google lawsuit brought “run of the mill” antitrust theories under Section 2 of the Sherman Act, he said: “It focuses on tying practices and a series of acquisitions that solidified a monopoly that they had largely acquired through tying. Those are all traditional antitrust theories.”

A monopoly itself isn’t illegal, but monopolists deploy strategies to solidify their dominance in a way that harms consumers, he said. “I’ve got no problem with the enforcers being aggressive and enforcing Section 2,” which has gone relatively underenforced partly because of a lack of political will.”

Ferguson said he hopes the FTC can somehow recoup as much monetary relief authority as possible given the Supreme Court’s unanimous decision to rescind the authority (see 2205050026). Congress should restore power that “resembles the power we thought we had under Section 13(b),” he said. The commission used that power to “do a lot of good for American consumers.”