Does it matter that the prosecutor is also the judge? The administrative complaint process at the Federal Trade Commission

Abstract

Firms seeking to merge face antitrust scrutiny from either the Department of Justice (DOJ) or the Federal Trade Commission (FTC). Unlike the DOJ, the FTC litigates its cases in front of its own administrative law judges (ALJs), and then hears the appeal itself, rather than using federal district courts. This study focuses on the formal decisions made by the FTC after an ALJ has conducted a full trial for a particular case. We find that while the ‘merits’ of a matter, as implied by the case law, affect the FTC's decision, institutional factors also have an impact. In particular, the firm's chances of prevailing in litigation are influenced by the number of commissioners who both vote to prosecute and then vote as a judge as well as the political affiliations of the commissioners. © 1998 John Wiley & Sons, Ltd.