Can the FTC Turn Back the Clock?

Antitrust Magazine Online, Oct. 2021

12 Pages Posted: 27 Aug 2021 Last revised: 1 Nov 2021

See all articles by Gregory J. Werden

Gregory J. Werden

Independent

Luke M. Froeb

Vanderbilt University - Owen Graduate School of Management

Date Written: August 15, 2021

Abstract

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.

Keywords: antitrust, incipiency, Federal Trade Commission, rule of reason

JEL Classification: K21, L40, L50

Suggested Citation

Werden, Gregory J. and Froeb, Luke M., Can the FTC Turn Back the Clock? (August 15, 2021). Antitrust Magazine Online, Oct. 2021, Available at SSRN: https://ssrn.com/abstract=3909851

Luke M. Froeb

Vanderbilt University - Owen Graduate School of Management ( email )

401 21st Avenue South
Nashville, TN 37203
United States
615-322-9057 (Phone)
615-343-7177 (Fax)

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