The recent Supreme Court decision overturning Humphrey’s Executor has fundamentally reshaped the legal landscape for independent agencies. With the Court explicitly confirming that the president may remove FTC commissioners at will, the traditional understanding of the agency's structure and autonomy has been permanently altered. Following up on a Prompt from last year, we reconnected with our panel of antitrust experts to unpack what these monumental shifts mean for the future of antitrust enforcement, the viability of dual agencies, and the FTC's operational stability.
It's been several months since the panel weighed in on Humphrey's Executor. Now that the Supreme Court has removed all doubt and overturned the case, is there anything you would add to or change in the opinions expressed in November 2025 regarding the practical implications for the agency?
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.
Several experts highlighted how the elimination of the independent commission structure risks heightened partisan volatility and practical gridlock during presidential transitions. Looking squarely at the mechanics of the agency, one expert noted
"To my prior comments, I would add that it is unclear how the FTC will function during changes of administration. If the new President fires existing members, there is no one who can act on new matters. If the new President leaves individuals in place, they may be concerned that the Chair/Commissioners from another party will resign (leaving no one to act) or that the individual won’t follow the Administration’s general policies. That also leads to the risk of no FTC."
Expanding on the loss of institutional moderation, another expert pointed to the historical benefits of the commission model, observing
"The commission structure encouraged compromise. In principle the majority could vote 3-2 on most matters and basically ignore the minority, but the value of a 5-0 vote encouraged the majority to find ways to work with the minority. Without an independent minority, there will be no checks on the majority, and we will see policy swings from one administration to another."
Despite these challenges, some panelists maintained that the FTC’s unique mandate still holds value. One panelist remarked
“I would not change anything that I wrote earlier (except the tense): it is a sad day for American governance that, at the precise time when we should be insulating agencies from political pressure, a theory-over-empiricism Supreme Court majority did precisely the opposite. Under a future president (and perhaps a Senate controlled by the opposition), we may still see a bipartisan FTC exercising independence to benefit consumer welfare. Moreover, the FTC’s ‘unfair methods of competition’ authority, which was specifically designed by Congress to be broader than the DoJ’s antitrust jurisdiction, is critically important now when the Supreme Court’s reading of antitrust is unquestionably cramped. So while I recognize that there is an argument for moving antitrust jurisdiction to the Division, that strikes me as a misguided idea. Particularly now.”
However, a strong consensus emerged among other experts that the rationale for maintaining two federal antitrust agencies has now effectively collapsed. Assessing the agency's political vulnerabilities, one respondent bluntly stated
“The FTC has a target on its back. If there is Republican control in the next Presidential election with both Senate and House, the competition function might move to DOJ.” Affirming this sentiment, another expert pointed out the inefficiencies of the status quo, writing, "At this point, there is no reason to finance two agencies with overlapping enforcement responsibilities. In addition to the periodic friction associated with determining which agency should undertake a particular investigation, the business community must operate in a world where the rules and how they are enforced can vary depending on luck of the draw. Minimum standards of due process deserve better."
Building on the regulatory and legislative realities, another expert added that
"[t]he practical implications are that it makes even less sense now for the FTC to maintain antitrust authority, since the notion of a point of view that is 'independent' from that of the Administration no longer exists. What’s more, constitutional concerns about FTC Part III antitrust proceedings and concerns about divergent DOJ-FTC injunction standards still exist. Also, the problem of an ill-defined Section 5 UMC remains. I suspect (but am not certain) that at some time (when I have no idea) some version of Senator’s one agency act will pass and all federal antitrust enforcement will center in DOJ. There would still be a solid argument for having the FTC remain the primary federal consumer protection agency, given its deep expertise."
Integrating the two functions, however, poses its own set of cultural and policy hurdles. Emphasizing the complexities of a unified authority, one expert reflected
"[Last time] I wrote: 'If each administration has the power to remove commissioners and appoint their successors, the distinction between the Antitrust Division and the Commission’s competition mission would turn principally on institutional cultures and the personal predilections of the various appointees, and the already-thin justification for multiple agencies with parallel authority would be largely eliminated.' I continue to hold to that view. I would add, though, that the best manner to combine the agencies’ competition functions into a single agency is not entirely obvious. The Antitrust Division’s civil authority is combined with criminal authority, and that affects its policy judgments as to collective action by competitors. The FTC’s civil antitrust authority is combined with consumer protection authority, and that affects its policy judgments as to competitive actions, particularly collective competitive actions, that might have consumer consequences beyond competitive effects. Those non-overlapping activities result in real cultural differences, and sometimes policy differences in the overlapping civil competition enforcement, and real thought needs to be given to how to optimize a combined agency and where in government it would best be located."
Finally, multiple experts revisited their past predictions to highlight how structural alterations fundamentally reshape constitutional power dynamics. Reflecting on the loss of bipartisanship, one expert stated
"My views last November still look pretty good to me: 'When (not if) the Supreme Court holds that the president may fire FTC commissioners at will, the rationale will likely include the fact that today's FTC clearly exercises executive law-enforcement functions ... Once the FTC is held to be just another executive agency, the "independence" rationale for having two antitrust agencies will have fallen too. As fiscal deficits accumulate, even relatively small budgets like the FTC's will come under increasing scrutiny and will be hard to defend ... [W]hat made the FTC different and at times superior [to DOJ] (including the internal vetting of policies and cases by a bipartisan Commission and staff) is going away, and with it, ultimately, the Commission's antitrust mission itself.’
“But while the outcome of Trump v. Slaughter was predictable, Justice Gorsuch's concurrence was insightful, and important. The executive powers that Congress impermissibly assigned to the FTC will now be controlled by the president (but so, too, will the substantial legislative and judicial powers that Congress also delegated to the FTC). I suspect a bipartisan majority of the Court will agree with Gorsuch that the Constitution requires that those powers be restored to Congress and the courts. The 'headless fourth branch' has been eliminated, but unless Gorsuch is heeded, the result will be an even more powerful executive branch that is already threatening to subsume the other branches in a way that the Founders could not have intended."
