US Federal Trade Commission
The Federal Trade Commission enforces antitrust and consumer protection laws in the United States, sharing jurisdiction with the Department of Justice on antitrust matters. Established in 1914, the FTC has five commissioners serving seven-year staggered terms, creating partisan dynamics where 3-2 splits determine enforcement priorities.
Section 5 of the FTC Act grants authority beyond the Sherman and Clayton Acts to prohibit 'unfair methods of competition'—a deliberately vague mandate that enables aggressive enforcement but also creates uncertainty. The shared jurisdiction with DOJ creates both redundancy and turf battles, with a clearance process determining which agency investigates each matter.
The FTC shares antitrust jurisdiction with DOJ through a clearance process that has produced contested clearances in less than 1% of transactions in recent years (fiscal 2016-2020). However, this dual system creates enforcement redundancy and turf battles. Only DOJ can pursue criminal antitrust cases, while FTC has unique Section 5 authority reaching beyond Sherman/Clayton Acts. The 5-commissioner structure with 7-year staggered terms means partisan 3-2 splits determine whether the agency pursues aggressive tech antitrust enforcement or business-friendly restraint.
Key Facts
Power Dynamics
Independent agency with rulemaking and enforcement authority over antitrust and consumer protection
Commissioners split 3-2 along party lines on major enforcement decisions. Chair controls agenda and staff. Section 5 'unfair methods' authority allows aggressive enforcement without Sherman Act violations, but industry challenges most novel theories. Consent decrees require decades of monitoring but agency lacks resources for oversight.
- Federal courts reviewing enforcement actions
- Congressional appropriations
- Industry litigation challenging Section 5 scope
- DOJ clearance process for antitrust cases
- DOJ Antitrust Division (turf coordination)
- Big Tech platforms (primary enforcement targets 2020-2025)
- Consumer advocacy groups
- Business lobbying groups challenging enforcement
Decision Dynamics at US Federal Trade Commission
Commissioner votes on routine consent decrees can happen within weeks when all parties agree to settlement terms.
Meta/Within VR merger challenge (2022-2023): FTC lost preliminary injunction, case stretched over year. Some consent decree monitoring extends 20+ years (Google privacy decree ran 2011-2031).
Commissioner votes require 3-person majority, creating partisan gridlock. Industry appeals of novel Section 5 theories delay enforcement. Staff shortages mean simultaneous investigations compete for resources.
Failure Modes of US Federal Trade Commission
- Meta/Within (2023): Lost preliminary injunction on VR merger despite 'potential competition' theory
- Illumina/Grail (2021-2023): Overseas deal challenged despite no US nexus, partners consummated merger during litigation
- Weyerhaeuser (2007): Supreme Court rejected predatory bidding theory, constraining FTC antitrust reach
- Partisan 3-2 splits create inconsistent enforcement across administrations
- Section 5 scope unclear—Supreme Court has never defined its limits beyond Sherman/Clayton Acts
- Consent decree monitoring requires decades but budget doesn't scale
- Clearance battles with DOJ waste resources
If Supreme Court limits Section 5 to Sherman Act violations, FTC loses differentiated authority and becomes redundant with DOJ. Combined with hostile appropriations, agency could face existential crisis requiring statutory reform or merger with DOJ Antitrust Division.
Biological Parallel
The FTC and DOJ function like two apex predator species hunting the same prey (antitrust violations) in overlapping territories. They've evolved a clearance mechanism to partition cases and avoid direct conflict, but contested clearances still occur when both agencies want high-profile matters. Each has specialized hunting strategies: DOJ uses criminal prosecution (lethal), FTC uses Section 5 authority (broader net). Partisan commissioner splits mean FTC's hunting strategy shifts every few years between aggressive pursuit and restraint, creating unpredictability for prey (businesses).
Key Agencies
Antitrust enforcement and merger review
Consumer protection and fraud prevention
Economic analysis supporting enforcement