Federal Trade Commission

STATEMENT OF 

DEBORAH PLATT MAJORAS1

CHAIRMAN, FEDERAL TRADE COMMISSION,

BEFORE THE 

ANTITRUST MODERNIZATION COMMISSION

MARCH 21, 2006

Thank you for inviting me to participate in this hearing. I appreciate the opportunity to 

share my views on some of the important issues that the Antitrust Modernization Commission is 

considering, and I am privileged to appear with my colleague and friend, Assistant Attorney 

General, Tom Barnett. 

As I understand it, the AMC is charged with determining whether the antitrust laws, 

some of which are more than a century old, should be “modernized” so that they function 

properly in our post-industrial economy. In my view, to the extent that any of the antitrust laws 

need to be “modernized,” it is to bring them in line with modern antitrust thinking, not to change 

them to fit particular industries.

 Fundamentally, we do not need to make substantive changes to the primary federal 

antitrust laws. Nearly 120 years of experience in the interpretation and enforcement of these 

laws have established that the nation’s antitrust laws, subjected to rigorous judicial 

1

The views expressed herein are my own and do not necessarily reflect the views of the Federal 

Trade Commission or of any other individual Commissioner. 
interpretation, as well as scrutiny by practioners and scholars, are highly effective in protecting 

and preserving the nation’s free market system. 

This does not mean that no changes are needed. Over time, the reach of the antitrust laws 

has been narrowed by a large number of formal statutory exemptions and immunities. Most of 

these “exceptions” to the antitrust laws may have had sound policy justifications when they were 

enacted, but advancements in technology and the increased mobility of capital likely have 

rendered many of them inconsistent with the core principles underlying our nation’s economic 

policy. Technological changes and globalization also require the modernization of some of the 

procedures that we use to apply our antitrust laws, particularly with respect to merger review, but 

that should be done internally at the agencies. Finally, the spread of free markets and the 

proliferation of competition authorities require that, as U.S. antitrust practioners, we seek to 

improve our interaction and coordination with competition practioners throughout the world. 

1. Substantive Antitrust Laws 

The broadly worded language in Sections 1 and 2 of the Sherman Act, as well as the 

Clayton and Federal Trade Commission Acts, permits the courts, enforcement agencies, and 

practitioners to apply the antitrust laws in ever-more-sophisticated and flexible ways, as legal 

and economic learning evolve and our understanding of markets improves. Although I (like the 

members of the AMC) may not agree with the decision in every antitrust case, questionable 

decisions do not flow from deficiencies in the statutory language; rather, they reflect flaws in 

legal and economic thinking. Moreover, history has shown that flawed decisions usually are 

remedied through the corrective mechanisms of litigation and the steady intellectual 

development of the courts, the agencies, practitioners, and academics. 

2
Consider Section 7 of the Clayton Act and merger practice. The statute has proven 

sufficiently flexible over the past half century to accommodate substantial changes in antitrust 

merger jurisprudence. The courts and enforcement agencies historically relied almost 

exclusively on market shares and other structural presumptions to determine whether a 

transaction violated the antitrust laws. Although structural analysis retains a place in current 

merger practice, a progression of judicial decisions, agency guidelines, and academic work has 

changed merger practice, such that nearly all practitioners rely heavily on direct analyses of 

competitive effects. 

There has been a similar evolution in the treatment of efficiencies in merger analysis. 

Throughout the 1960s, the Supreme Court held that efficiencies were not an appropriate factor to 

consider in the antitrust review of mergers.2 Shortly thereafter, however, there began changes in 

the thinking of the courts, the enforcement agencies, private practioners, and academics that 

resulted in efficiencies assuming a central role in merger analysis.3 

2

See FTC v. Procter & Gamble Co., 386 U.S. 568, 980 (1967) (“Possible economies cannot be 

used as a defense to illegality. Congress was aware that some mergers which lessen competition 

may also result in economies but it struck the balance in favor of protecting competition.”); U.S. 

v. Philadelphia Nat'l Bank, 374 U.S. 321, 371 (1963) (“a merger the effect of which may be 

substantially to lessen competition is not saved because, on some ultimate reckoning of social or 

economic debits and credits, it may be deemed beneficial”) (citations and quotations omitted); 

Brown Shoe Co. v. U.S., 370 U.S. 294, 344 (1962) (“We cannot fail to recognize Congress’ 

desire to promote competition, through the protection of viable, small, locally owned business. 

Congress appreciated that occasional higher costs and prices might result from the maintenance 

of fragmented industries and markets. It resolved these competing considerations in favor of 

decentralization.”). 

3

See FTC v. H.J. Heinz Co., 246 F.3d 708, 720 (D.C. Cir. 2001) (“the trend among lower courts 

is to recognize the [efficiencies] defense”); FTC v. University Health, Inc., 938 F.2d 1206, 1222 

(11th Cir. 1991) (“an efficiency defense to the government’s prima facie case in section 7 

challenges is appropriate in certain circumstances.”); U.S. Dep't of Justice & Federal Trade 

Comm'n, Horizontal Merger Guidelines § 4 (as amended Apr. 8, 1997). 

3 
Significantly, neither of these substantial changes in substantive merger law, nor shifts of 

comparable magnitude in the treatment of vertical restraints, resulted from or generated statutory 

amendments to the antitrust laws. Rather, they arose out of advances in the knowledge and 

experience of the courts, practitioners, and scholars. The clear lesson is that the antitrust laws 

are sufficiently flexible to support and sustain significant changes in their interpretation and 

application, driven by litigation, changed enforcement policies, and new scholarship. The 

Supreme Court made precisely this point in State Oil Co. v. Khan, where it held that vertical 

maximum price fixing was not per se unlawful, overruling prior cases: 

[T]he general presumption that legislative changes should be left to Congress has 

less force with respect to the Sherman Act in light of the accepted view that 

Congress expected the courts to give shape to the statute's broad mandate by 

drawing on common-law tradition . . . [T]his Court has reconsidered its decisions 

construing the Sherman Act when the theoretical underpinnings of those decisions 

are called into serious question . . . Although we do not lightly assume that the 

economic realities underlying earlier decisions have changed, or that earlier 

judicial perceptions of those realities were in error, we have noted that different 

sorts of agreements may amount to restraints of trade in varying times and 

circumstances, and it would make no sense to create out of the single term 

restraint of trade a chronologically schizoid statute, in which a rule of reason 

evolves with new circumstances and new wisdom, but a line of per se illegality 

remains forever fixed where it was.4 

My inclination against substantive statutory changes extends to proposals to modify the 

antitrust laws to address specific circumstances in particular sectors of the economy. A virtue of 

the U.S. antitrust laws and legal system is that the courts and enforcement agencies generally 

have applied the same criteria flexibly to an enormous array of industries. The result has been a 

consistent competition policy that gives firms a reasonable degree of certainty and transparency. 

Thus, I disagree with those who maintain that the antitrust laws are not well-suited for today’s 

4

522 U.S. 3, 20-21 (1997) (citations and quotations omitted). 

4 
rapidly-changing high-technology industries, such as software and pharmaceuticals. Over the 

past two decades, the antitrust community has developed and emphasized doctrines that enable 

the sound application of our antitrust laws to even the fastest-moving sectors of our economy. 

For example, advancement in theories relating to entry and the contestability of markets has 

greatly informed agency and judicial decisions about the competitive effects of mergers and 

other conduct in high-technology industries. 

There is one significant caveat to my reluctance to make substantive changes to the 

antitrust laws. The Commission should seriously consider recommending the repeal of the 

Robinson-Patman Act, the overall purpose of which stands in contrast to the recognized goals of 

modern antitrust law – the protection and enhancement of consumer welfare. Legal and 

economic scholarship has persuasively demonstrated that, on balance, the statute is more harmful 

than beneficial to consumers. Admittedly, recent cases such as Volvo Trucks North America, 

Inc. v. Reeder-Simco GMC, Inc.5 demonstrate judicial appreciation of the need to interpret the 

Act narrowly and consistently with the contemporary thrust of antitrust law – protecting 

competition rather than competitors. But this interpretation lends support to the view that any 

price discrimination that is anticompetitive in the sense that it harms consumers can be addressed 

under the Sherman Act. Further, while the Volvo decision lent a welcome, modern antitrust 

interpretation to the statute, it does not, in my view, sufficiently negate the costs of complying 

with the Act or its potential to deter aggressive price-cutting that benefits consumers. And even 

if Congress were ultimately to decide that the protection provided by the Act is still desirable, it 

would be useful to have that decision made in the political process today. Finally, there is no 

5

126 S. Ct. 860 (2006). 

5
question that, as we work with new competition agencies around the globe and they look to the 

United States as an example of an antitrust regime with consumer welfare as its centerpiece, the 

Act stands out as representing contrasting policy goals and the protection of special interests – 

something against which we repeatedly caution our counterparts. 

2. Statutory Exemptions 

Even as the antitrust laws have evolved to make greater use of economics and to focus 

primarily on consumer welfare, the number of statutory exemptions that shield competitors from 

the antitrust laws remains high. Exemptions covering a substantial volume of commerce that are 

decades old remain on the books. I recommend that the AMC evaluate some of these 

exemptions and urge Congress and the President to consider their elimination. 

Fundamentally, antitrust exemptions typically are inconsistent with a central premise of 

U.S. economic policy – that vigorous competition in a free market, protected by the sound 

application of the antitrust laws, is the best approach to promote consumer welfare and 

efficiency. Thus, the potential for antitrust exemptions to harm consumers and the economy is 

substantial. Indeed, standard economic theory predicts that unless certain conditions of market 

failure are present, government limits on competition can produce higher prices, reduced output, 

and less innovation. Moreover, this is not simply a matter of theory. The successful experience 

of deregulation in various sectors of the American economy over the past three decades teaches 

valuable lessons. Numerous studies show that the removal of government limits on competition 

has resulted in greater economic efficiency and produced significant benefits for consumers.6 

6

For surveys, see, e.g., Clifford Winston, Economic Deregulation: Days of Reckoning for 

Microeconomists, 31 J. Econ. Lit. 1263 (1993); Clifford Winston, U.S. Industry Adjustment to 

Economic Deregulation, 12:3 J. Econ. Perspectives 89, 98-102 (1998). See also Elizabeth E. 

6
To be sure, circumstances that make restrictions on competition necessary to generate 

substantial efficiencies may arise, and thus warrant a departure from a free market economic 

model. It is important, however, that the Congress make certain that those conditions truly exist, 

and that consumers rather than competitors will benefit from statutory exemptions from the 

antitrust laws. If there is one thing that modern antitrust thinking recognizes, it is that markets 

are not static. Yet, many exemptions are several decades old and likely were based on market or 

regulatory justifications that probably no longer are valid. Innovations in communications and 

transportation and other technologies have improved capital markets and increased the ability of 

consumers and business customers to evaluate competitive alternatives without the assistance of 

government regulation. Consequently, some exemptions that were needed to correct market 

failures when enacted likely no longer serve consumers and the economy. 

There also probably are less restrictive ways than antitrust immunity to allow efficiencyenhancing collaborations among competitors in some of the industries to which the exemptions 

apply. Over the past three decades, antitrust analysis has been refined to incorporate economic 

principles that allow for procompetitive joint ventures and other forms of cooperation. These 

principles are reflected in antitrust case law and the guidelines promulgated by the antitrust 

enforcement agencies. For example, the FTC/DOJ Statements of Antitrust Enforcement Policy in 

Health Care7 provide that the agencies usually will not challenge forms of collaboration among 

health care providers if the collaborative efforts are reasonably necessary to achieve efficiencies 

Bailey, Price and Productivity Change Following Deregulation: The US Experience, 96 Econ. J.

1 (1986).

7

Available at http://www.ftc.gov/reports/hlth3s.htm.

7 
that benefit consumers. The FTC/DOJ Antitrust Guidelines for Collaborations Among 

Competitors8

 similarly allow efficient forms of collaboration among competitors. Assuming that 

there still are economically efficient forms of collaboration in some of the industries that 

currently enjoy antitrust exemptions, it is likely that the antitrust laws are sufficiently flexible to 

permit the collaboration without the need for formal antitrust immunity. 

Finally, statutory exemptions from the U.S. antitrust laws can significantly hinder the 

ability of the United States to promote sound competition policies abroad. The health of the 

United States economy has become increasingly affected by the competition policies of other 

countries. The United States has been and remains at the forefront in advocating for the 

adoption of competition laws that reflect free market economic principles. Our ability to do so 

effectively is reduced, however, when we do not practice what we preach. The United States’ 

competition policies and practices will be imitated only to the extent that they are worth 

emulating. A critical review by the AMC of the U.S. antitrust exemptions will assist all of our 

efforts to advocate for competition policies that promote vibrant consumer-oriented competition 

both in the United States and abroad. 

3. Patent Reform 

A comprehensive review of our antitrust laws requires cognizance of other statutory 

regimes that regularly interact with the antitrust laws in ways that significantly affect 

competition and consumers. Today, the patent system is the area of law that perhaps looms the 

largest in its impact on the antitrust laws and competition policy. Patents are, of course, critical 

to promoting investment and innovation. By preventing competing rival firms from free riding 

8

Available at http://www.ftc.gov/os/2000/04/ftcdojguidelines.pdf. 

8 
on discoveries, patents allow firms to recoup their often substantial capital investments in 

developing new products. Indeed, the patent and antitrust laws share the same goal of promoting 

investment and competition, so it should come as no surprise that the two systems typically work 

well together. Moreover, most patents do not yield market power that can impair competition, 

and even when they do, if a patent is properly granted under appropriate standards, the incentives 

and other advantages it provides typically outweigh possible market power concerns. 

If improperly administered or misused, however, the patent system can harm innovation 

and competition. Dubious patents can slow innovation by discouraging firms from conducting 

research and development out of fear of patent infringement and can result in the payment of 

unnecessary royalties, which are passed on to consumers. 

The FTC’s recent attention to patent issues dates from a series of hearings in 2002 that 

led to issuance of a major report in October 2003, “To Promote Innovation: The Proper Balance 

of Competition and Patent Law and Policy.”9

 One of the chief recommendations in the FTC 

Report is that Congress enact legislation establishing procedures for post-grant review by the 

Patent and Trademark Office. This recommendation seconded a proposal in the PTO’s own 21st 

Century Strategic Plan. The Report reasons that some questionable patents inevitably will slip 

through the examination system. Litigation weeds out invalid patents only slowly and at great 

cost; challengers cannot seek declaratory judgments until imminently threatened with suit. 

Collectively, these considerations suggest that some unwarranted patents will be issued and will 

remain factors in the market for a considerable time, which may create unnecessary market 

power and transaction costs and infect markets with risk, uncertainty, and distorted business 

9

Available at http://www.ftc.gov/os/2003/10/innovationrpt.pdf. 

9 
planning. An improved post-grant opposition system could offer a quicker, less costly means for 

resolving validity issues. The Report recommended a system that provides an early and effective 

review beneficial to competition and rational business planning, while sheltering patentees from 

harassment and impairment of legitimate patent rights. I urge the AMC to support this and other 

recommendations for patent reform, which currently are under Congressional review. 

4. Merger Review Process 

Modern advances in merger analysis, and advances in the technology of document and 

data creation and retention, have led to increased costs and burdens in the agencies’ merger 

review process. The process must be updated to meet new realities, as I recognized when I 

recently introduced significant reforms to our process at the FTC. The needed reforms, however, 

are best developed and implemented by the enforcement agencies, working in concert with the 

bar and the business community, rather than through new legislation. To improve the merger 

review process requires reforms that are durable and firm, but also that are sufficiently flexible to 

support a wide variety of merger reviews across a wide range of industries. The agencies can 

implement such flexible revisions readily through changes to their internal procedures. In 

contrast, crafting the revisions through more static legislation presents substantial challenges 

because changes in technology continually affect how the agencies review mergers. 

Last month, I introduced a series of substantial reforms to the procedures that the FTC 

uses to review all transactions that are reported under the Hart-Scott-Rodino Act.10 The reforms 

are the product of study by our Merger Process Task Force, which was charged with conducting 

10Reforms to the Merger Review Process (Feb. 16, 2006), available at 

http://www.ftc.gov/os/2006/02/mergerreviewprocess.pdf. 

10 
a top-to-bottom review of the FTC’s merger review process. The central purpose of the reforms 

is to lower the costs of merger investigations for the FTC and the parties by reducing the volume 

of materials that parties must preserve and produce to respond to a second request, while 

preserving the FTC’s ability to conduct thorough merger investigations. Particularly significant 

is that the reforms place substantial restrictions on the number of custodians that a party will be 

required to search – one of the most important factors (if not the most important factor) in the 

size and cost of second request productions. The limits on the number of custodians in second 

request search groups constitutes the first time that a U.S. antitrust enforcement agency ever has 

imposed such a limitation on itself. 

The reforms contain four core presumptions: 

1. a party will not be required to search the files of more than 35 of its employees when 

responding to a second request, if the party complies with specified timing conditions; 

2. a party will not be required to produce responsive documents that were created more 

than two years prior to the issuance of the second request (a reduction from the current threeyear period); 

3. a party will be required to preserve backup tapes for only two calender days identified 

by FTC staff; and 

4. a party will be entitled to produce a limited partial privilege log, rather than a “full” 

log, for most of the custodians in the second request search group.11 

11The reforms also contain modifications to the instructions and the specifications of the second 

request that are designed to reduce the burdens on the parties. 

11 
 One thing made clear by the FTC’s internal review process was that meaningful reform 

requires the participation of all components of the agency, not only the staff. Consequently, in 

addition to implementing presumptive limitations on the size of second requests, the reforms 

increase the responsibility of the senior management of the Bureaus of Competition and 

Economics for ensuring that second requests do not impose undue burdens on the parties. For 

example, the agency may require a party to search the files of more than 35 employees only if 

the Bureau of Competition Director approves the larger search group. Parties are entitled to 

meet or confer with the BC Director before the Director decides whether to authorize a larger 

search group, and I highly encourage them to do so. Similarly, because requests for empirical 

data also have contributed to higher costs, the reforms provide that a party will be entitled to 

meet or confer with a Director or a Deputy Director from both the Bureau of Competition and 

the Bureau of Economics if the party believes that the data requests are unnecessarily broad. We 

also are requiring that an FTC lawyer with substantial experience participate in all second 

request negotiations with the parties. 

Moreover, as I stated when I released the reforms, they represent the start rather than the 

end of the FTC’s efforts to improve the merger review process. For example, we will continue 

to work to reduce the burden of requests for empirical data. The merger process reforms contain 

provisions that should reduce the costs of data requests, but further work and experience are 

needed to ensure that the FTC obtains the data it needs to analyze the competitive effects of 

transactions, while minimizing the costs on the parties. I encourage all members of the antitrust 

community to work with the FTC in this effort. 

12
I also intend to devote significant resources to improving the technologies that the FTC 

uses in merger investigations, particularly the hardware and software for processing and 

reviewing electronic documents and data. Such improvements will benefit everyone – the 

agencies, the parties, the bar, and, most important, U.S. consumers. Currently, FTC staff, 

outside counsel, and the parties devote far too much time during many merger investigations to 

resolving technical issues related to the format and methods used to produce electronic 

documents. I hope to develop a set of more standardized options for parties to use when they 

produce electronic documents in response to a second request, which will free up valuable 

resources to further the agency’s core mission in merger analysis – determining whether the 

transaction is likely substantially to harm consumers. 

As I stated, despite the need for significant improvements to the merger review process, I 

do not believe that formal statutory or regulatory changes are warranted. The reforms that I 

issued last month address the primary sources of the growing costs of the merger review process 

– the size of the search groups, the time period for which parties are required to produce 

documents, the preservation of backup tapes, and the production of privilege logs. Further, I 

urge the AMC to exercise significant caution about recommending modifications to the merger 

review process that assign direct responsibility to other components of the government, such as 

the courts. Experience shows that adding more procedural requirements to merger investigations 

generally decreases the ability of the agencies and the parties to resolve matters expeditiously, 

and increases the cost and overall burdens imposed on all involved. 

5. Two Antitrust Agencies 

13
The question whether a “modern” U.S. antitrust regime should include two agencies with 

largely overlapping jurisdiction has threaded through your mandate since the AMC’s formation. 

And given that I have held senior positions in both agencies within the last five years, I often am 

asked for my opinion on whether we really need two agencies and about the strengths and 

weaknesses of each. My answer is unlikely to surprise you. There is no point in the AMC’s 

considering how to create an antitrust regime from scratch and whether that means creating two 

agencies, because you are not starting from scratch. You have before you two strong agencies, 

with overlapping and also differing strengths. To change the current system would come at a 

cost that would not be offset by countervailing benefits. 

For example, the Federal Trade Commission was formed, in part, to study markets and 

competition issues in depth, and that responsibility comprises a significant part of what we do. 

Divorced from actual enforcement experience, however, that research and policy work would be 

far less effective and informed. And to maximize consistency between the two agencies in civil 

antitrust analysis, in recent years, the FTC has involved the Antitrust Division in its major policy 

hearings and projects. Further, the FTC’s antitrust analysis benefits from input from the 

consumer protection work we perform, and vice-versa. 

In addition, one should not assume that combining all of the strengths and talents in one 

large agency would be more efficient and therefore better. I am in no way convinced that bigger 

is better in government agencies. Indeed, the relatively small size of the FTC enables us to react 

relatively nimbly and responsively to market issues as they arise. Further, as a champion of the 

idea that competition is a driver of greatness, I do not mind admitting that healthy competition 

14
between the two agencies drives them toward greater effectiveness and responsiveness to the 

needs of our public. 

Conversely, I do not see public harm from having two agencies. We avoid duplication in 

investigations, so that is not an issue. To the extent that some parties claim that their treatment 

may vary as between agencies, I see no more variance between agencies than I see among 

different staff even within the same agency – something that we are taking concrete steps to 

minimize both within the FTC and between agencies. The clearance process works effectively in 

more than 90% of matters, and we are actively working together to make the process faster and 

smoother. Still, not only do I recognize the warts in the clearance process, but I disdain the 

conflicts that develop in a handful of matters. As the AMC is well aware, the two agencies 

endeavored to improve the clearance process in 2002, but were forced to abandon the reforms 

under Congressional pressure. Should the AMC determine that improvements to the clearance 

process are warranted, I would not object to the AMC’s making such a recommendation. 

6. International Competition Policy 

Finally, no modern antitrust regime can be effective without a strong international 

component. As champions of market-based economies, we are highly encouraged by the large 

number of nations that slowly have been shifting away from government-based economies over 

the last 15 years. Nonetheless, concern over the fact that multiple antitrust agencies around the 

globe may make their own decisions about the same merger or conduct has prompted questions 

about the desirability of additional procedures to promote greater comity in the application of 

antitrust laws. 

15
The FTC, together with the Antitrust Division, devotes substantial resources to 

participating in international competition fora, maintaining strong bilateral relationships, and 

promoting convergence with competition agencies throughout the world. U.S. consumers 

strongly benefit from these efforts. Increasingly our investigations overlap with those of nonU.S. agencies. Maintaining reliable channels of communication and working to promote 

comparable standards assist in avoiding substantive conflicts. In those very few circumstances 

where we cannot avoid substantive conflict, the agencies still benefit from gaining a better 

understanding of the areas of difference, and possibly avoid future conflict. The divergent 

results reached by the Antitrust Division and the European Commission on the GE/Honeywell 

transaction, for example, led our two jurisdictions to increase our communication and 

understanding on the issues of conglomerate mergers and portfolio effects. 

The U.S. agencies have incorporated comity into their Guidelines for International 

Operations,12 and the United States’ bilateral antitrust cooperation agreements provide for the 

application of comity and list the factors that the parties should take into account in applying it to 

particular cases.13 The bilateral agreements also provide for “positive comity” mechanisms, 

which enable a competition agency to request that another competition agency investigate and 

enforce action with respect to anticompetitive conduct that is illegal in the requested jurisdiction 

12U.S. Department of Justice and FTC Antitrust Enforcement Guidelines for International 

Operations § 3.2 (April 1995), available at 

http://www.usdoj.gov/atr/public/guidelines/internat.htm. 

13E.g., US-EC agreement, Article VI, 

http://www.ftc.gov/bc/international/docs/agree_eurocomm.pdf. 

16 
and also adversely affects the interests of the requesting jurisdiction. In addition, the U.S. 

Supreme Court recently recognized and applied comity principles in its Empagran decision.14 

Still, as the AMC has observed, there remains considerable interest in the United States 

in determining whether it is possible to develop additional bilateral and multilateral procedures 

to enhance international antitrust comity. While I am unaware of any international consensus on, 

for example, an approach that would assign exclusive, or even primary, enforcement 

responsibility to a jurisdiction most affected by the merger or conduct at issue, I am open to 

considering new ways of implementing comity principles, consistent with my responsibility to 

protect competition in the United States. 

Currently, however, we are not without meaningful options to further the objectives of 

comity, irrespective of the presence or lack of written agreements. Our job as enforcers is to 

protect competition, and doing so effectively requires understanding and accounting for what 

other jurisdictions do or may do. This is because any meaningful action taken by a competition 

authority will impact the market in question. Thus, another agency’s regulatory intervention 

should be considered as another market fact (just as a regulatory scheme or another U.S. 

agency’s action is taken into account). Nowhere is this more important than in the imposition of 

remedies, because a company’s divestiture or a company’s actions taken (or not taken but rather 

forbidden) pursuant to an order entered outside of the United States can cause effects in the U.S. 

market. 

14F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004). 

17 
To further reduce the likelihood of inconsistent results and unnecessarily redundant 

investigations, the U.S. enforcement agencies, in cooperation with the bar, will continue actively 

to engage our foreign counterparts on the major substantive antitrust issues. For example, next 

week, the FTC and the Antitrust Division will co-host a program on merger investigations for 

members of the International Competition Network. In two weeks, I will travel to Asia to 

discuss, among other topics, the development of China’s competition law. This year, both the 

FTC and the Antitrust Division will continue our active participation in the Organization for 

Economic Cooperation and Development and ICN meetings and working groups. 

Experience shows that these and related efforts bear fruit. Indeed, since the uranium and 

other conflicts of a generation ago, policies designed to protect competitors at the expense of 

consumers in many nations have been weakened, and even disappeared. State tolerance of 

cartels also has declined. At the same time, it is clear that our active engagement with other 

competition agencies has resulted in those agencies adopting policies that favor prudent restraint 

in the application of their competition laws in circumstances where they did not always do so. In 

particular, there has been a substantial increase in many foreign competition agencies’ use of 

economic principles that focus competition law where it should be, on the welfare of consumers. 

I look forward to working with the AMC and all members of the antitrust community to continue 

our efforts to promote healthy convergence and comity among competition authorities. 

Thank you again for the opportunity to appear before the AMC today. I look forward to 

answering your questions. 

-18-