On September 20, 2022, the Chair of the Federal Trade Commission (FTC) testified before the U.S. Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy, and Consumer Rights on “Oversight of the Enforcement of the Antitrust Laws.” However, for the first time in at least 24 such hearings, two of the Commissioners felt compelled to file a dissenting statement.

While the dissenting Commissioners supported the Chair’s comments related to some FTC efforts, they took issue with many of the Chair’s other comments. For example, they objected to the Chair’s characterization of merger enforcement (noting that enforcement was strong in the prior administration), the characterization of a consolidated labor market (pointing out that empirical evidence showed just the opposite), and the claims of increasing concentration (stating that such claims “are neither based on markets within which competition takes place, nor on their own indicative of lessened competition”). The dissenting Commissioners also refused to endorse a suggestion to “convert antitrust law from 132 years of statutes and adjudicated court decisions to regulations” (saying the FTC lacked authority to do so).

Ultimately, what was most noteworthy about the dissent was that there was one at all, demonstrating a lack of consensus among the Commissioners on issues that will drive antitrust policy.

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