The Department of Justice should have sole authority, not share it with the FTC.
The Department of Justice should have sole authority, not share it with the FTC.
H aving more than one agency responsible for antitrust enforcement has proven tantamount to having too many cooks in the kitchen.
One possible solution may be contained in legislation awaiting U.S. House consideration during the lame-duck Congress. It would both rein in the administrative state and make antitrust enforcement more efficient.
At present, the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) share antitrust-enforcement jurisdiction. This has led to a confused and confusing state at odds with the national interest in uniform enforcement of antitrust laws.
The One Agency Act (H.R. 7737) was introduced in March by Representative Ben Cline (R., Va.) and passed the House Judiciary Committee in April on a 16-7 vote. It’s now poised for consideration by the full U.S. House.
This speed was achievable because the problem and the solution are simple and straightforward: The legislative remedy would vest all antitrust enforcement authority, resources, and personnel (this would include merger review) in the Justice Department. The FTC wouldn’t be eliminated but would be left to pursue its consumer-protection mandate under the FTC Act.
The dysfunction of the multiagency model is well known. Senator Mike Lee (R., Utah) illustrated the current situation in a 2020 Wall Street Journal op-ed. Lee decried constant “turf battles as lawyers from each agency fight over who gets the case. Jurisdiction over one merger was literally decided by a coin toss.”
This legislative solution would confine competition to the economy, where it belongs, instead of between rival government agencies, each with its own political and policy priorities and procedural irregularities. In doing so, H.R. 7737 would put an end to such needless squabbling over which agency initiates a given investigation. What’s more, it would make the FTC more efficient and effective at its core mission, rather than wasting time and resources making unilateral initiatives at odds with DOJ enforcement policy or pursuing questionable fishing expeditions. For example, the FTC’s quixotic litigation against Qualcomm drew opposition from DOJ, and DOJ’s position won. By streamlining antitrust enforcement, the One Agency Act would also save taxpayer money.
Part of the logic underlying the bill is that the Justice Department is the most appropriate agency in which antitrust enforcement authority should be consolidated. It is more politically accountable to Congress and to the president than is the FTC, or any other independent agency. Moreover, no independent agency can speak for the United States. Only a cabinet department represents the United States. And only DOJ may lead criminal actions; the FTC may not.
Most significantly, the One Agency Act would give antitrust enforcement fairness and due process. Under the leadership of Chair Lina Khan, the agency has clearly demonstrated that seat-of-your-pants enforcement decision-making disrupts and delays legitimate business practices, injects uncertainty as to what is permissible, and imposes excessive costs upon America’s businesses.
All too often of late, the FTC’s actions have appeared to be influenced by ideological considerations that ought to have no role in enforcing the law. As my Committee for Justice colleague Ashley Baker has written, “This system is ripe for political pressure to punish businesses unnecessarily or unfairly.” This is inappropriate conduct by a government agency, especially so in the case of initiating law enforcement.
Enacting H.R. 7737 would also facilitate the efficient functioning of free markets while enhancing consumer protection. The creators of America’s wealth, innovation, and jobs would gain clearer, more predictable antitrust guidance — while being governed by a more accountable regulator.
The House Appropriations Committee’s FTC funding for fiscal year 2025 would trim the agency’s budget and prohibit it from continuing some of its more extremist conduct. However, the House FTC appropriation likely won’t be enacted with all the needed guardrails in the bill, and those that remain would only bind the agency through September 2025. The One Agency Act presents a permanent remedy for merger policy.
As House Republican leaders weigh which legislation to bring to the floor in the lame-duck session, they should strongly consider moving the One Agency Act forward.