Resurrecting 'A Comprehensive Charter of Economic Liberty': The Latent Power of the Federal Trade Commission

Abstract

After decades of virtual invisibility, monopoly and oligopoly are attracting the attention of leading political and public figures again. Corporate control of markets is now seen as an important source of economic and political ills in American society. These evils include not just higher prices for consumers, but also increased economic inequality and a compromised democracy. This corporate domination of the economy and politics was not inevitable, dictated by impersonal forces such as “globalization” or “technology.” On the contrary, it is the result of conscious policy choices initiated in the late 1970s and 1980s that succeeded in focusing antitrust law on the narrow concept of economic efficiency and establishing legal standards friendly to powerful businesses. The weakened antitrust laws have given large corporations freedom to dominate markets through mergers and exclusionary and other restrictive trade practices. The Supreme Court has the power to undo these changes but an antitrust revival through the common law process is uncertain and, at best, sure to be protracted. Advocates of renewed antitrust enforcement should instead look to the Federal Trade Commission. The Commission has broad power to remake antitrust policy under the FTC Act’s prohibition on unfair methods of competition. In using this power, the FTC should reject the ahistorical efficiency model for antitrust and embrace the political economic goals articulated by Congress when it created the Commission in 1914. These goals of protecting consumers, maintaining open markets, and promoting dispersal of private power remain as relevant as ever. To restore competitive market structures and advance the vision of Congress, the FTC should establish a series of presumptions against competitively suspicious practices and restructure persistent or otherwise seriously harmful monopolies.