Wednesday, January 12, 2022

Can the FTC Turn Back the Clock?

Can the FTC Turn Back the Clock?


Gregory J. Werden

Luke M. Froeb

Vanderbilt University - Owen Graduate School of Management



Eager to shed constraints imposed by Sherman Act precedent, New FTC Chair Lina M. Khan issued a statement declaring her intention to attack “unfair methods of competition even if they do not violate a separate antitrust statute.” She has sought to distance herself from the Sherman Act’s rule of reason and find shelter in the incipiency concept. We argue that she misconstrues both concepts and that she will fail if she makes departure from Sherman Act precedent her rallying cry. But she can succeed by acting on fact-based, forward-looking assessments of competitive effects.

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