Looking Forward: The Federal Trade Commission and the Future Development of U.S. Competition Policy

Wednesday, January 1st, 2003 at 12:00 am by Timothy J. Muris
Timothy J. Muris, Looking Forward: The Federal Trade Commission and the Future Development of U.S. Competition Policy, 2003 Colum. Bus. L. Rev. 359

Roughly two years ago, toward the end of December 2000, it became apparent that I might have the privilege to serve once again at a senior level in the federal government. If given a choice, my preference was certain. I hoped to return to the Federal Trade Commission (“ftc” or “Commission”). For me the ftc has many attractions, both professional and personal. As an academic, I have spent twenty-five years studying and writing about the Commission. I served as an Assistant to the Director of the Office of Policy Planning and Evaluation with the agency in the mid-1970s and directed the Bureau of Consumer Protection and the Bureau of Competition (fortunately, not at the same time) during my second tour in the 1980s. The ftc has been the single largest focus of my career, and I have an affinity for the institution and its people that long ago transcended abstract familiarity with an administrative agency.

I also was drawn back to the agency by the manner in which its competition and consumer protection activities have evolved. In recent years, as I observed the substantive program developed under Bob Pitofsky’s exceptional leadership, I was struck by how extensively the work of the modern ftc had come to match my own views about how the agency should use its authority. As the agency’s head, I knew that beyond sustaining the many valuable initiatives already underway, I could focus my energies on developing new projects and continuing my predecessor’s enhancement of traditional programs. In doing so, I would draw upon the most impressive and interesting array of litigation and non-litigation policy instruments ever entrusted to a competition policy agency.

For all these reasons, I welcomed the opportunity to return to the ftc.

In earlier speeches and testimony, I have identified my specific competition policymaking aims and have recounted the agency’s progress toward attaining them. These presentations extensively document these initiatives and bear out, I believe, my initial prediction that the Commission’s competition policy program would be active and ambitious. Today I want to look beyond raw case counts and simple descriptions of non-litigation matters. More generally, I wish to discuss my philosophy about the appropriate content of the ftc’s competition policy strategy and to explain the logic of the positive agenda used to implement the strategy. Because I have discussed our enforcement program in great detail on other occasions, I will place that program in a broader context and describe some of our non-enforcement projects in greater detail than I have previously done.

Why should the competition policy community be concerned about the principles that motivate the development of a competition policy strategy or guide the design of a positive, implementing agenda? My experience in public agencies confirms a vital, often-stated conclusion of academic researchers: no public institution achieves policy success without a coherent strategy for exercising its authority and spending its resources. A key manifestation of an agency’s strategy is a positive agenda–a statement of the measures the agency intends to pursue to accomplish its substantive aims. Without a general strategy and a positive agenda, an agency becomes a passive observer, swept along by external developments and temporary exigencies.

A positive agenda also provides essential guidance. For the agency’s staff, a positive agenda focuses effort on measures most likely to fulfill the institution’s mission. For the business community and other interested parties, a clear statement of intentions reduces uncertainty and facilitates compliance with the law.

Four general principles should inform the development of the ftc’s competition policy strategy and the preparation of a positive agenda for executing the strategy. The Commission should:

• Play an active role in promoting competition as the basic principle of economic organization through strong enforcement and focused advocacy;

• Focus its antitrust enforcement resources on conduct that poses the greatest threat to consumer welfare;

• Make full use of the agency’s distinctive institutional capabilities by applying the entire range of its policy instruments to solve competition policy problems; and

• Attach a high priority to improving the institutions and processes by which antitrust policy is formulated and applied.

I discuss each of these principles in turn.

Author Information

Chairman, United States Federal Trade Commission