Looking Back to Move Forward: 

Preserving the Progressive Tradition at the FTC 

Keynote Address by Commissioner Edith Ramirez 

New York State Bar Association Antitrust Law Section Dinner 

New York, New York 

January 24, 2013 

It is a pleasure to be here in New York, speaking to so many who share the Federal Trade 

Commission’s mission of keeping markets healthy and competition robust.1

We all operate today in a time when markets are morphing at lightning speed; when 

products and industries that did not exist ten years ago shape the economic landscape; when 

consumers’ opportunities to access innovative goods and services are surpassed only by equally 

innovative threats to consumers’ privacy and pocketbooks. 

This evening I would like to discuss how we at the FTC navigate these unpredictable 

times, relying on a roadmap penned almost a century ago by members of the Progressive 

movement, who themselves were struggling to navigate their own unpredictable times. 

The FTC was established at the height of the Progressive Era and imbued with principles 

based on the best thinking of the great minds of the day. Today, we still adhere to those 

principles with results that would make our founders proud: the Commission issues decisions 

rooted in bipartisan consensus reached through scientific and careful analysis of the record and 

facts at hand. 

As an American history buff with a particular interest in the Progressive Era, I cannot 

help but be struck by the similarities between then and now. As today, the economy at the start 

of the 20th century was struggling to overcome major financial shocks that had pushed down 

wages, increased unemployment, and hit the working poor and newly emerging middle class 

hardest. The public, fueled by stories from a new class of muckraking journalists, was rapidly 

losing faith in government’s ability to respond to the economic and social challenges of the 

times. 

By 1914, Progressive leaders had started to develop and put in place a public policy 

framework relying on the dispassionate decisions of experts in the new social sciences. 

Corruption and cronyism began to give way to consensus based on fact and reasoned analysis. 

 That year marked three milestones of American history that illustrate just how fully our 

nation was turning toward a brave new world governed by rationality. First, the FTC Act made 

it through Congress and created an agency that was, in the words of a 1914 Senate report, 

 

1

 The views expressed in these remarks are my own and do not necessarily reflect the views of the 

Commission or any other Commissioner. 
2 

“competent to deal with [complex antitrust matters] by reason of information, experience, and 

careful study of the business and economic conditions of the industry affected.”2

 

Second, noted journalist and thinker Walter Lippmann published, to great acclaim, the 

Progressive manifesto, Drift and Mastery: An Attempt to Diagnose the Current Unrest, in which 

he argued that, to respond effectively to profound economic and social upheaval, the public 

needed to make collective decisions based on scientific methodology and hard evidence.3

 

And third, with the disappearance of the bustle in the late 1800s and the rise of hemlines 

above tripping level, women’s clothing finally began to make sense. 

Of course, that first milestone – the creation of the FTC – is of most interest to me and I 

assume most of you in this room tonight. But I hesitate to examine it through the lens of Walter 

Lippmann’s work. Although I believe he described the philosophical underpinnings of the FTC 

well in Drift and Mastery, his views on antitrust regulation do not withstand modern scrutiny. 

Rather than breaking up monopolies and allowing competition to produce efficient markets, 

Lippmann believed trusts managed by dispassionate technocrats – a class of Platonic 

philosopher-CEOs – were the remedy for the abuses of the Standard Oils of his time.4

So I will turn to women’s fashion instead. 

There is a wonderful exhibit at the Daughters of the American Revolution museum in 

Washington right now called “Fashioning the New Woman: 1890 to 1925,” displaying how 

clothes adapted during the Progressive Era to match women’s increasing role in business, 

academia, and public policy. One of the earliest dresses in the collection, an afternoon dress 

from 1890, is all bustle, cinched waist, and adornment. It required 14 pounds of undergarments 

to hold the whole thing up, no doubt rendering the unfortunate wearer unable to sit, move, work, 

protest for the vote, talk in a normal tone, or do much of anything. By contrast, the more 

practical clothes displayed from the 1920s befit the modern woman taking her place in the office, 

on college campuses, and at the polls. 

 Those designing clothing for women were taking a Progressive view of the task, 

fashioning attire with the “proper knowledge of both the public requirements and practical 

affairs” of their clients.5 That quote, by the way, is not from a turn of the century fashion rag, 

but from the Senate Report on the creation of the FTC. Like the fashion designers of that time, 

the FTC was, and is, meant to come to its decisions after thorough consideration of the “public 

requirements and practical affairs” of the industries we regulate. And like the Progressives of 

that time, the Commission was – and is – meant to arrive at an apolitical consensus by analyzing 

the evidence with rigorous application of sound social science. 

 

2

 S. Rep. No. 597, 63d Cong., 2d Sess. 9 (1914) (hereinafter Senate Report). 

3

 Walter Lippmann, DRIFT & MASTERY: AN ATTEMPT TO DIAGNOSE THE CURRENT UNREST (Univ. of 

Wis. Press 1985) 147-51 (1914). 

4 Id. at 78-88. 

5

 Senate Report at 11. 
3 

 In my view, that description fits today’s FTC like a Gibson Girl’s shirtwaist dress. 

I. The FTC Today 

 Oscar Wilde’s famous take on fashion is that one “can never be overdressed or 

overeducated,” and with at least the latter part of that analysis, the FTC is in complete 

agreement. The Commission could not tackle a modern antitrust investigation, which routinely 

involves millions of pages of documents and a myriad of facts and figures, without the backing 

of our economic research and policy arms. Both are direct legacies of the Bureau of 

Corporations that was folded into the FTC upon its founding. In addition to working on 

investigations with our very capable attorneys in the Bureau of Competition, the FTC’s Bureau 

of Economics staff also routinely engages in policy-oriented economic research. Our Office of 

Policy and Planning similarly devotes itself to antitrust policy issues. This evening, I would like 

to highlight how we have used our research and policy functions in two areas: mergers and hightech matters involving intellectual property. 

II. Mergers 

As antitrust enforcers, we routinely forecast how mergers or challenged conduct will 

impact future competition. The predictions and assumptions underlying our actions must be 

sound, and one way to ensure that is to engage in retrospective analysis of past enforcement 

decisions. Mastery of this history is particularly important when the Commission is struggling 

with whether to bring an enforcement action in a complex and close case. Two such studies 

make my point: the FTC’s hospital retrospective project in the early 2000s and the merger 

remedy study in the 1990s. 

A. Hospital Retrospectives 

The reinvigoration of the FTC’s hospital merger enforcement efforts, due in large part to 

the hospital retrospective project, represents one of the best comeback stories since, well, 1914, 

when ankle boots – last seen on soldiers at the end of the 19th century – began to reappear below 

women’s slowing rising hemlines. 

Throughout the 1980s and early 1990s, the FTC and Department of Justice successfully 

challenged a number of hospital mergers, and courts were receptive to the agencies’ arguments 

that such mergers were harmful to consumers.6

 Beginning in 1994, however, antitrust agencies 

suffered seven consecutive hospital merger losses.7 

 

6 See, e.g., FTC v. Univ. Health, Inc., 938 F.2d 1206 (11th Cir. 1991); United States v. Rockford Mem'l, 

717 F.Supp. 1251, aff'd, 898 F.2d 1278 (7th Cir. 1990).

7 See FTC v. Tenet Healthcare Corp., 186 F.3d 1045 (8th Cir. 1999); United States v. Long Island Jewish 

Med. Ctr., 983 F. Supp. 121 (E.D.N.Y. 1997); FTC v. Butterworth Health Corp., 946 F. Supp. 1285 

(W.D. Mich. 1996), aff’d mem., 121 F.3d 708 (6th Cir. 1997); United States v. Mercy Health Servs., 902 

F. Supp. 968 (N.D. Iowa 1995), vacated as moot, 107 F.3d 632 (8th Cir. 1997); FTC v. Freeman Hosp., 

911 F. Supp. 1213 (W.D. Mo. 1995), aff’d, 69 F.3d 260 (8th Cir. 1995); FTC v. Hosp. Bd. of Directors of 

Lee Cty., 1994-1 Trade Cas. (CCH) ¶ 70,593 (M.D. Fla.), aff’d, 38 F.3d 1184 (11th Cir. 1994);
4 

In 2002, the FTC decided to examine why the hospital merger program had fallen so 

hopelessly out of style. The Bureaus of Economics and Competition undertook a retrospective 

study of the effects on pricing and quality of care resulting from a handful of consummated 

hospital mergers.8

 This project was supplemented by a series of health care hearings convened 

jointly with DOJ.9

 

BE’s empirical studies revealed that many hospital mergers were, as the agencies had 

contended, anticompetitive.10 BE showed that hospital competition was highly localized. Even 

mergers in metropolitan areas with a large number of hospitals could cause competitive harm 

because patients demand the inclusion of certain institutions in their insurance networks.11 The 

studies also showed that quality of care does not necessarily improve with consolidation.12 

Armed with this information as well as the findings from the workshops, the Commission 

revamped its approach to litigating hospital cases. To show competitive harm, the FTC now 

emphasizes how a merger can leave an insurer with few alternatives to include in its network, 

increasing the bargaining leverage of the combined hospital and leading to higher prices.13 We 

have also used retrospectives, which provide real-world backup for our arguments, to bolster 

judges’ confidence in our predictions of price effects. 

 

California v. Sutter Health Sys., 84 F. Supp. 2d 1057 (N.D. Cal.) (denying preliminary injunction in 

hospital merger challenge by the California Attorney General), aff’d mem., 217 F.3d 846 (9th Cir. 2000).

8 Press Release, Fed. Trade Comm’n, Federal Trade Commission Announced Formation of Merger 

Litigation Task Force (Aug. 28, 2002), available at 

http://www.ftc.gov/opa/2002/08/mergerlitigation.shtm. 

9

 These hearings culminated in the publication of the 2004 Health Care Report. FED. TRADE COMM’N &

DEP’T OF JUSTICE, IMPROVING HEALTH CARE: A DOSE OF COMPETITION (July 2004) (hereinafter 2004 

Health Care Report), available at http://www.ftc.gov/reports/healthcare/040723healthcarerpt.pdf. 

10 See, e.g., Joseph Farrell et al., Economics at the FTC: Retrospective Merger Analysis with a Focus on 

Hospitals, 35 REV. OF INDUS. ORG. 369 (2009). 

11 See, e.g., Deborah Haas-Wilson & Christopher Garmon, Two Hospital Mergers on Chicago’s North 

Shore: A Retrospective Study, FTC Bureau of Economics Working Paper 294 (Jan. 2009) (finding that 

although the Chicago metropolitan area contained more than 100 hospitals, the merger between Evanston 

Northwestern Healthcare and Highland Park Hospital nevertheless resulted in higher inpatient prices at 

the merged hospitals); Steven Tenn, The Price Effects of Hospital Mergers: A Case Study of the SutterSummit Transaction, FTC Bureau of Economics Working Paper 293 (Nov. 2008) (finding that although 

the Bay Area contained a large number of hospitals, the acquisition of Summit Medical Center by the 

Sutter Hospital Network, which owned Alta Bates Medical Center, nonetheless resulted in higher 

inpatient prices at the merged hospitals). 

12 See, e.g., David J. Balan & Patrick S. Romano, A Retrospective Analysis of the Clinical Quality Effects 

of the Acquisition of Highland Park Hospital by Evanston Northwestern Healthcare, FTC Bureau of 

Economics Working Paper No. 307 (Nov. 2010). 

13 Opinion of the Commission, In re ProMedica Health System, Inc., Docket No. 9346 (June 25, 2012), at 

6, 12, 35-39, 47-49, available at http://www.ftc.gov/os/adjpro/d9346/120625promedicaopinion.pdf; 2004 

Health Care Report at 11-12, 17. 
5 

Our new approach sparked a winning streak, starting with the Evanston case in 2007,14

that includes three successfully-litigated merger challenges15 and a growing tally of hospital 

deals abandoned after the FTC threatened a challenge.16 These victories are a perfect fit for 

consumers already burdened with staggering health care costs. And they came about because we 

tailored our approach on a pattern created by our Progressive Era predecessors—sophisticated 

economic analysis and a nuanced understanding of hospital markets. 

B. Divestiture Study 

Most merger retrospectives focus on whether enforcers correctly identified 

anticompetitive transactions. But during the 1990s, the FTC used the same type of intensive 

historical review to examine the effectiveness of merger remedies, particularly divestitures.17 

Although the analysis found that three-quarters of FTC-ordered remedies produced the 

desired outcomes, it uncovered problems with the remainder.18 The agency learned that many 

buyers of divested assets lacked the information they needed to succeed; that sellers tended to 

look for weak buyers or sometimes tried to undermine the buyer’s success; and that divestitures 

limited to select assets often failed to produce the intended results.19

Based on this, the FTC adopted a number of changes to its divestiture policies.20 

Identifying upfront buyers capable of restoring competition is now a central part of our 

assessment of a proposed divestiture package. When necessary, we also require the seller to 

facilitate the transfer of technology and knowledgeable staff to the buyer. We sometimes turn to 

interim trustees to oversee the process, especially when the order requires ongoing ties between 

the buyer and seller. And finally, where possible, we favor divestitures of full, freestanding 

business units. 

Nowhere are these improvements more evident than in our pharmaceutical divestitures. 

Prior to the study, FTC pharmaceutical orders were definitely underdressed, typically requiring 

 

14 Opinion of the Commission, In re Evanston Northwestern Healthcare Corp., Docket No. 9315 (Aug. 6, 

2007), available at http://www.ftc.gov/os/adjpro/d9315/070806opinion.pdf. 

15 See Evanston at 1-2; ProMedica at 1-2; FTC v. OSF Healthcare Sys., 852 F. Supp. 2d 1069 (N.D. Ill. 

2012) (transaction abandoned following district court’s grant of a preliminary injunction pending a full 

administrative trial on the merits). 

16 See Order Dismissing Compl., In re Reading Health Sys., Docket No. 9353 (Dec. 7, 2012); Order 

Dismissing Compl., In re Inova Health Sys. Found., Docket No. 9326 (June 17, 2008), available at 

http://www.ftc.gov/os/adjpro/d9326/080617orderdismisscmpt.pdf. 

17 FED. TRADE COMM'N, A STUDY OF THE COMMISSION'S DIVESTITURE PROCESS (1999) (hereinafter 

“Divestiture Study”), available at http://www.ftc.gov/os/1999/08/divestiture.pdf. 

18 Id. at 8-10. 

19 Id. at 10-13, 18-29. 

20 See Fed. Trade Comm’n, Frequently Asked Questions About Merger Consent Order Provisions, 

available at http://www.ftc.gov/bc/mergerfaq.shtm; Divestiture Study at § II.C.3. 
6 

only the divestiture of the relevant IP to a buyer of the seller’s choosing.21 The FTC has replaced 

those modest orders with more robust requirements22 – requirements that our informal follow-up 

studies have shown overwhelmingly achieved the desired results. 

While I recognize that merger retrospectives can be hard to conduct and may not answer 

every difficult question,23 I believe they are both useful and necessary. I also recognize that one 

of the biggest obstacles to this type of analysis is a lack of post-merger data.24 To address that, it 

is worth considering whether the FTC should use its subpoena power and information gathering 

authority under Section 6(b) of the FTC Act to obtain necessary data.25 It is also worth exploring 

whether to include ongoing production obligations as part of our consent decrees, particularly in 

cases where the decision to settle rather than litigate was a close call. If such an inquiry were to 

reveal that certain kinds of settlements do not work in certain markets, we would to have to 

rethink our calculus for deciding when to litigate a case. 

I also think we should do more to encourage outside scholarship in this area. Academics 

have shown considerable interest in merger policy, and many have made valuable 

contributions.26 But their efforts have sometimes been hampered by, among other things, a lack 

of information about how we as enforcers make our decisions. We do our best to explain our 

reasoning in Commission statements, especially in difficult cases, but that is probably an area 

where we could stand to do better. 

 

21 See, e.g., In re Dow Chemical Co., Docket No. 3533 (Sept. 23, 1994). 

22 See, e.g., In re Watson Pharm. Inc., Docket No. C-4372 (Dec. 14, 2012) (requiring the acquiring party 

to divest certain overlapping pharmaceutical products and to provide requisite technical assistance to 

buyers that have been identified and vetted by Commission staff in advance). 

23 Among other challenges, merger retrospectives often suffer from information deficiencies, can be 

burdensome and resource intensive, and may not yield meaningful results, particularly in cases where it is 

difficult to isolate the impact of a transaction on prices. See, e.g., John Kwoka & Daniel Greenfield, Does 

Merger Control Work? A Retrospective on U.S. Enforcement Actions and Merger Outcomes 2-3 (Nov. 

2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1954849; Note by the Delegation 

of the United States, Roundtable on Impact Evaluation of Merger Decisions, Organization for Economic 

Cooperation and Development 3-6 (June 20, 2011) (hereinafter “U.S. OECD Merger Retrospective 

Submission”), available at http://www.justice.gov/atr/public/international/273463.pdf; Dennis W. 

Carlton, The Need to Measure the Effect of Merger Policy and How to Do It, 22 ANTITRUST 39 (Summer 

2008). 

24 See, e.g., Kwoka & Greenfield at 3; Hunter et al. at 34. 

25 Section 6(b) of the FTC Act, 16 U.S.C. § 46(b), empowers the Commission to require the filing of 

“annual or special . . . reports or answers in writing to specific questions” for the purpose of obtaining 

information about “the organization, business, conduct, practices, management, and relation to other 

corporations, partnerships, and individuals” of the entities to whom the inquiry is addressed. 

26 Over 70 merger retrospective papers were published between 1985 and 2010. U.S. OECD Merger 

Retrospective Submission at 6; see also Graeme Hunter et al., Merger Retrospective Studies: A Review, 

23 ANTITRUST 34 (Fall 2008) (reviewing merger retrospective studies conducted from 1990-2008); 

Matthew Weinberg, The Price Effects of Horizontal Mergers, 4 J. COMP. L. & J. ECON. 433 (2007) 

(surveying the literature on the price effects of horizontal mergers); Paul Pautler, Evidence on Mergers 

and Acquisitions, 48 ANTITRUST BULL. 119 (2003) (same). 
7 

III. IP Studies 

 Intellectual property in the high-tech sector is another area where we weave research into 

our enforcement efforts. For well over a decade, the Commission has studied the role that 

patents play in high-tech industry. Our work on this is too extensive to summarize in a short 

speech, but let me touch on a few highlights. 

In 2002, the FTC and DOJ held a series of hearings that resulted in a 2003 FTC report 

focused largely on patent quality.27 The FTC devoted significant attention to the special 

challenges facing the high-tech sector, and the study confirmed what was already clear to market 

participants: firms developing new products were facing a dense thicket of overlapping patents 

of vague scope and ambiguous quality; they perceived themselves as litigation targets; and they 

relied increasingly on defensive patents. The result was a full-blown patent arms race in the tech 

sector with disturbing implications for innovation, competition, and consumers.28 

These same hearings exposed the complicated economic incentives at play when patented 

technologies are incorporated into industry standards – what we refer to today as “standardessential patents.” Industry players and academics urged the agencies to recognize the procompetitive role that standard setting organizations play in reducing the risk of abuse by 

standard-essential patent owners. Others disputed that abuse was common and cautioned the 

agencies against mandating particular SSO policies, suggesting that onerous patent disclosure or 

licensing requirements could slow the SSO process and discourage participation. The broad 

evidence and testimony collected during those hearings is summarized in our 2007 joint report 

with DOJ and provides the basis for the enforcement guidance that is set forth.29 

The FTC built on the extensive 2002 record with a second set of hearings that began in 

2008, focusing on competition policy issues associated with patent notice and remedies.30 These 

hearings were completed in 2010 and informed our 2011 report on “The Evolving IP 

Marketplace.”31 And while the evidence confirmed the important role that exclusive patent 

rights and a strong system of remedies play in promoting productive R&D expenditures and 

technology transfers, we also found that the growing patent thicket in the IT sector continues to 

 

27 U.S. Dep’t of Justice & Fed. Trade Comm’n, Hearings on Competition and Intellectual Property Law 

and Policy in the Knowledge-Based Economy, materials available at 

http://www.ftc.gov/opp/intellect/index.shtm; FED. TRADE COMM’N, TO PROMOTE INNOVATION: THE 

PROPER BALANCE OF COMPETITION AND PATENT LAW AND POLICY (2003) (hereinafter “2003 Report”), 

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

28 2003 Report at 30-55. 

29 U.S. DEP’T OF JUSTICE & FED. TRADE COMM’N, ANTITRUST ENFORCEMENT AND INTELLECTUAL 

PROPERTY RIGHTS: PROMOTING INNOVATION AND COMPETITION 33-56 (2007), available at 

http://www.ftc.gov/reports/innovation/P040101PromotingInnovationandCompetitionrpt0704.pdf. 

30 Fed. Trade Comm’n, Hearings on The Evolving IP Marketplace, materials available at 

http://www.ftc.gov/bc/workshops/ipmarketplace. 

31 FED. TRADE COMM’N, THE EVOLVING IP MARKETPLACE: ALIGNING PATENT NOTICE AND REMEDIES 

WITH COMPETITION (2011), available at http://www.ftc.gov/os/2011/03/110307patentreport.pdf.
8 

act as a drag on resources and innovation.32 We also looked at industry reaction to the Supreme 

Court’s landmark eBay decision and cases applying the four-factor eBay framework, leading us 

to recommend several ways for courts to better align application of the test with competition 

policy.33 

Since our 2011 Report, we have held two additional workshops that have taken a deeper 

dive into some of the topics examined previously. In June 2011, we looked more closely at the 

costs and benefits of various SSO polices for managing the risk of undue patent leverage.34 And 

just this past December, the agencies held a workshop dedicated to the economics of what we 

call “patent assertion entities” – known derisively as “patent trolls” – companies that are in the 

business of buying, selling, and asserting patents.35 A central empirical question, which we will 

continue to examine, is whether PAEs encourage invention or instead hamper innovation and 

competition. I am confident the agencies’ talented economists and policy staff will advance the 

dialogue on this as well as the many other tough questions raised by PAEs. 

This brings me to our most recent enforcement action in the patent arena: Google. As 

most of you know, earlier this month we announced that Google settled claims that it had 

violated Section 5 of the FTC Act following its acquisition of Motorola Mobility by pursuing 

injunctions against willing licensees for alleged infringement of several Motorola standardessential patents.36 The Commission alleged that Google breached the FRAND commitments 

Motorola had made to various standard-setting organizations before its technologies were 

adopted into the relevant standards. 

Infringement claims in the smartphone sector raise many of the complex patent policy 

issues the Commission has studied, and our order in the Google matter reflects many of the 

lessons learned. To remedy the alleged violation, the Commission ordered Google to follow a 

process-based approach to resolving its disputes with potential licensees that respects the quid 

pro quo inherent in a FRAND commitment. Broadly speaking, Google may not seek an 

injunction based solely on a dispute over licensing terms without first seeking a FRAND 

determination from a neutral third party.37 At the same time, the order recognizes that in making 

a FRAND commitment, a SEP holder does not give up its right to exclude where it cannot secure 

a license on fair and reasonable terms. Under the order, Google is free to seek an injunction 

where the infringing firm is not subject to jurisdiction in the United States, or the infringer 

 

32 Id. at 52-56. 

33 Id. at 217, 228-234. 

34 Fed. Trade Comm’n, Workshop on Patents and Standard Setting: Tools to Prevent “Hold-Up,” June 21, 

2011, materials available at http://www.ftc.gov/opp/workshops/standards/index.shtml. 

35 U.S. Dep’t of Justice & Fed. Trade Comm’n, Patent Assertion Entity Activities Workshop, Dec. 20, 

2012, materials available at http://www.ftc.gov/opp/workshops/pae/. 

36 See In re Motorola Mobility LLC and Google, Inc., FTC File No. 121-0120 (Jan. 3, 2013) (decision and 

order), available at http://ftc.gov/os/caselist/1210120/index.shtm. 

37 Id. §§ III-IV. 
9 

refuses to agree to licensing terms set by a neutral third party.38 By requiring that Google keep 

the promises that Motorola willingly made to the relevant SSOs, the Commission’s order 

protects the critical interests of all stakeholders in the SSO process, including, importantly, 

consumers. 

IV. Google Search 

Before I conclude, I would like to say a few words about the other Google matter we 

recently concluded and which is, no doubt, on most of your minds – our decision to close the 

investigation of Google’s search practices. Let me say at the outset that this decision is a perfect 

example of our evidence-based, consensus-driven approach to antitrust. 

As most of you know, the heart of the investigation concerned allegations that Google 

harmed competition and consumers by unfairly preferencing its own content and demoting the 

content of rivals on its search results page. After evaluating the extensive factual record 

developed over a 19-month investigation, and taking into account considerable input from 

market players, the Commission unanimously concluded Google’s search design changes were 

product improvements that did not, on balance, harm competition or consumers, even if they 

may have harmed certain rivals.39 

The post-decision commentary runs the gamut. Some applaud us; some recognize the 

complexity of the investigation and defer to our expertise; some claim we got it completely 

wrong. The critics’ main charge is that Google’s design decisions will ultimately reduce choice 

and competition in internet services. However, the evidence did not reveal that Google’s design 

changes were predatory. It suggested instead that Google was engaged in competition on the 

merits. Particularly in fast-paced technology markets, condemning legitimate product 

improvements risks harming innovation and consumers. The evidence in this case simply did 

not support taking that drastic step. 

Others assert that we wrongly focused on Google’s intent. I can tell you that is a 

misreading of the Commission’s statement. Evidence showing why a company made the 

decision it did is certainly relevant in antitrust when it casts light on the effects of that decision40

– and that is exactly the role Google’s intent played in our investigation. 

Still others question whether we ignored the advertising side of the market. We did not. 

In this multi-sided market, advertisers, as well as content providers, largely follow search users, 

and the investigation did not show that Google likely acquired or retained those users through 

anticompetitive tactics. 

 

38 Id. ¶ II(E). Google also retains the option to seek an injunction against a potential licensee that itself 

files for an injunction against Google for infringement of its own SEPs without following a procedural 

course similar to what Google must follow under the order. Id. ¶ IV(F). 

39 See Statement of the Commission, In re Google, Inc., FTC File No. 111-0163 (Jan. 3, 2013), available 

at http://ftc.gov/os/2013/01/130103googlesearchstmtofcomm.pdf. 

40 See, e.g., United States v. Microsoft Corp., 253 F.3d 34, 59 (D.C. Cir. 2001). 
10 

Now, while I may disagree with such criticisms, these questions are all legitimate ones. 

But, in my view, others are not. Some have claimed, without basis, that the Commission yielded 

to pressure from Google, the White House, Congress, or all three. You will not be surprised to 

hear that I take issue with those accusations. As in all of our cases, our decision in this 

investigation was based on our independent assessment of the facts and our interpretation of the 

law, nothing more and nothing less. 

V. Conclusion 

Coco Chanel once said: “Fashion changes, but style endures.” The FTC is fortunate to 

have inherited from our Progressive Era founders a style that has allowed us to endure as an 

effective, consensus-driven agency able to respond to each successive year’s economic 

challenges. While the markets of today may bear little resemblance to the markets of tomorrow, 

the process of studying – scientifically, rigorously, apolitically – the causes and effects of our 

past actions and the markets we regulate will keep the FTC grounded, useful, and relevant into 

the uncertain future.