Modern Antitrust Meets Modern Rulemaking: Evaluating the Potential of FTC Competition Rulemaking

Abstract

In January 2023, the Federal Trade Commission (“FTC”) proposed its first discretionary competition rule in fifty-seven years and its second such rule ever. In light of the proposed Non-Compete Clause Rule, this Article explores complexities and nuances surrounding the FTC’s move toward competition rulemaking. We examine historical context and recent policy developments that have shaped the FTC’s increased interest in rulemaking. In the context of administrative and regulatory mechanisms that could safeguard rulemaking, this Article posits that the FTC should proceed with rulemaking, but with caution. Highlighting the challenges specific to antitrust rulemaking, we advocate for nuanced rulemaking that incorporates presumptive rules, non-binding guidelines, and specific exceptions. This Article also advocates for the FTC’s use of modern rulemaking strategies such as experimental rulemaking, retrospective review, and Cost-Benefit Analysis. We propose how rulemaking analysis may consider non-consumer-welfare concerns, such as distributional and political effects, alongside the traditional assessment of consumer welfare. Examples are discussed, including exclusionary conduct and mergers.