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US trade commissioners speak out against DOJ antitrust enforcement policy

[JURIST] Three of the four sitting US Federal Trade Commission (FTC) [official website; JURIST news archive] members on Monday denounced a report [PDF text; DOJ materials] released by the US Department of Justice (DOJ) [official website; JURIST news archive] as "a blueprint for radically weakened enforcement" of federal antitrust law. The report explores single entity violations of Section 2 of the Sherman Act [text], in which a competitor seeks or maintains monopoly power which harms consumers. Commenting [press release] on the purpose of the report, Assistant Attorney General Thomas O. Barnett [official profile] said:

While we need to identify and prohibit conduct that harms the competitive process, we also need to avoid interfering in the rough and tumble of beneficial competition that drives innovation and economic growth.
In their own statement [PDF text; press release], the three FTC commissioners said the DOJ's proposed enforcement standards "would make it nearly impossible to prosecute a case under Section 2." They emphasized that the FTC "stands ready to fill any Sherman Act enforcement void that might be created if the Department actually implements the policy decisions expressed in its Report." The remaining commissioner, FTC Chairman William E. Kovacic [official profile], issued his own statement [PDF text] separate from that of his colleagues. Reuters has more. The Washington Post has additional coverage.

The DOJ and the FTC jointly enforce the federal antitrust statutes. Among other recent developments in US antitrust law [JURIST news archive], the US Court of Appeals for the District of Columbia Circuit ruled [JURIST report] in July that a lower court had erroneously dismissed an FTC lawsuit seeking to prevent Whole Foods Market from buying out competitor Wild Oats Markets. The FTC had been seeking a temporary injunction against the merger while it conducted an investigation. In June, the FTC began an investigation [JURIST report] of whether computer chip manufacturer Intel Corp. has been engaged in anti-competitive business practices. The FTC had previously declined to investigate.

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