One of the consistently thorny issues in U.S. antitrust law is the rather vague boundary of Section 5 of the FTC Act, which concerns non-merger conduct that may not violate the Sherman Act but still constitutes harmful anticompetitive conduct. Recently, Commissioner Joshua Wright, followed by Commissioner Maureen Ohlhausen, issued calls for guidelines that would direct the Commission in its use of Section 5. We have assembled a blue-ribbon panel of contributors to opine on the need for such guidelines as well as the recommendations contained in Commissioner Wright’s statement, (see Proposed Policy Statement Regarding Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act).
We are definitely not yet at consensus.
Section 5 Guidelines – Love or Leave ?
By articulating principles that delimit how far the FTC can go under Section 5, the FTC would provide courts assurances that meaningful judicial review can still occur. Daniel Crane (University of Michigan)
But before we abandon S&H (along with other Supreme Court cases that at least pay some attention to what Congress intended when enacting the antitrust laws) for the embrace of the latest updated thinking from today’s economists, it might be helpful to take another look at the S&H case itself. Ha