Jul 13, 2009
Much ink has been spilled concerning the policy split revealed by the Justice Department’s September 2008 Report on Single Firm Conduct (SFC) and the Federal Trade Commission’s swift and rather critical rejoinder (issued by three of the four FTC Commissioners). (By SFC I refer to actions taken by a dominant firm or by an actual or aspiring monopolist.) Among the concerns raised is that the lack of U.S. interagency consensus on SFC enforcement standards may undermine the ability of the United States to influence the development of international norms in this area, and, in particular, to promote convergence toward desirable best practices. These concerns, while understandable, are greatly overblown, in my opinion. As I will explain, work on SFC by leading scholars and agencies world-wide has greatly enhanced understanding of SFC practices in recent years. Moreover, DOJ’s May 2009 public disavowal of DOJ’s 2008 SFC Report suggests that the September 2008 FTC-DOJ contretemps is a mere bump in the road and will not seriously detract from enforcers efforts to promote convergence in the SFC area. The pace and direction of convergence efforts, and the desirability of particular SFC enforcements standards, however, are questions yet to be determined. The article is an adaption of a posting originally presented in a Section 2 Symposium on the blog site, Truth on the Market, available online at TruthOnTheMarket.
