The views expressed by respondents do not necessarily reflect the views of the U.S. Chamber and their publication is not an endorsement by the Chamber. We share these unredacted views to help the business community better understand what is top of mind of experts who have held top government antitrust jobs in prior Republican and Democratic administrations.
The Prompt Experts Weigh In Ahead of the FTC’s Oversight Hearing
FTC Chairman Andrew Ferguson and Commissioner Mark Meador are expected to testify at a Senate Commerce Committee oversight hearing this week, the first of its kind in nearly six years. With only two sitting commissioners, both Republicans, the hearing presents a rare opportunity for lawmakers to press the agency's leadership on its priorities, independence, and direction.
We gave our group of antitrust experts a simple Prompt:
What one question do you hope members ask the Commissioners, and does it matter which one answers?
Their responses ranged widely, from concerns about White House influence and political speech to merger guidelines, Robinson-Patman enforcement, and the absence of bipartisan representation on the Commission. Several experts directed their questions specifically at Chairman Ferguson, while others wanted to hear from both commissioners or questioned whether the distinction even matters with only two members. Here are their answers, in full.
The Prompt
Answering antitrust challenges one question at a time
The Chamber has assembled a range of preeminent experts in the field of antitrust from across a wide political spectrum to offer timely views on key questions of antitrust law and policy. This group brings together senior enforcers spanning seven administrations, from both the Antitrust Division at the Department of Justice and the Federal Trade Commission.
White House Influence and Agency Independence
Several experts zeroed in on the relationship between the FTC and the executive branch, probing whether the Commission is operating independently or taking direction from the White House.
One question, with two parts: Who determines the outcome of important FTC cases, the Commission or the White House, and what process do you recommend for parties wishing to influence the outcome?
How often are you in contact with White House officials, and how often during those contacts are you asked to conduct an investigation or enforcement action against a particular company or to stand down from one that is already underway?
Political Speech and Targeted Enforcement
One expert challenged the Commission's recent actions head-on, questioning whether the FTC is using its authority to suppress speech:
Why are you trying to censor political speech, such as with your action against Media Matters?
DEI, Antitrust, and Due Process
Another expert had pointed questions for both commissioners, raising concerns about the FTC's letters to law firms regarding diversity initiatives and pressing Commissioner Meador on the limits of presidential authority:
Chair Ferguson: Why is it appropriate for the FTC to accuse law firms of potentially violating the antitrust laws by doing business with Diversity Lab? Is there really a credible theory that DEI efforts are an antitrust violation? Did you do any investigation before sending those letters? Discuss it with any other Commissioner? In what other circumstances will you send a public letter like this without investigation?
Commissioner Meador: You have said that you believe the FTC should follow any lawful act of the President. In the antitrust context, what would an unlawful act look like? Would bringing an unwarranted challenge that would not meet Rule 11 be considered an unlawful act?
The Absence of Bipartisan Representation
One expert focused on the elephant in the room, a Commission with no Democratic members, and invoked Ferguson's own prior statements about the value of dissent:
Don't you think the Commission works better when it includes members of both parties? Relatedly, haven't you argued that dissents are critically important? See this analysis. How many dissents have there been since you became chair? How many times did you dissent when you were a non-chair commissioner (roughly)? Could you envision a world in which there are again members of both parties on the Commission?
The Major Questions Doctrine and UMC Authority
One expert wanted the Chairman to press on the legal foundations of the FTC's unfair methods of competition authority:
The committee should ask Chairman Ferguson how he squares the currently very broad UMC policy statement with Supreme Court precedent on the major questions doctrine.
Merger Guidelines
Another expert, who preferred the Chairman answer, questioned why the FTC hasn't updated its approach to merger review:
If you do not plan to replace the merger guidelines, why haven't you taken steps to modify the guidelines to align them with modern merger jurisprudence? I prefer that the Chairman answer, although with only two commissioners, I am not sure it matters.
Robinson-Patman Act Enforcement
Two experts independently raised questions about the FTC's continued pursuit of Robinson-Patman Act cases, a long-dormant statute that the agency has recently revived:
Why are you still bringing a Robinson Patman case? Is there consumer harm?
Given your resource constraints, will you consider possible new Robinson-Patman Act investigations, and, if so, what limiting principles would you apply? Relatedly, have you considered dropping your one remaining case? It would matter who answered, unless Meador agreed in advance to defer to Ferguson.
The hearing promises to be a significant moment for FTC oversight. Whether lawmakers take up these questions remains to be seen, but the experts have laid out a compelling roadmap.
