United States of America 

Federal Trade Commission 

Hearing on Reviving Competition Part 4 

21st Century Antitrust Reforms and the American Worker 

Christine S. Wilson* 

Commissioner, U.S. Federal Trade Commission 

September 28, 2021 

Testimony Before the House Judiciary Committee 

Subcommittee on Antitrust, Commercial and Administrative Law 

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

the Federal Trade Commission or any other Commissioner. 
 

 

Chairman Nadler, Ranking Member Jordan, Chairman Cicilline, Ranking Member Buck, 

and distinguished members of the Committee, thank you for the opportunity to testify. In recent 

years, this Committee has played a pivotal role in spurring a rich dialogue on our antitrust laws. 

It is an honor to appear before you today. 

In my opening remarks, I will first provide context for the monopsony and labor issues 

we will discuss today. Then, I will address antitrust enforcement and proposals that impact labor 

markets, including occupational licensing, monopsony, and non-compete and no-poach 

agreements. These issues are important, and worthy of the time we are devoting to them today. 

Finally, I will briefly touch on procedural irregularities at the Federal Trade Commission that 

have precluded a robust dialogue on these and other key policy issues among Commissioners, 

and between Commissioners and stakeholders. 

The Big Picture 

The U.S. antitrust laws were enacted more than a century ago. The Sherman Act was 

passed in 1890 and the Clayton Act, which supplemented the Sherman Act, was passed in 1914. 

Periodically, given the time that has passed since their enactment, commentators question 

whether those Acts remain capable of addressing issues that arise in new industries and dynamic 

markets. This question was asked in the 1990s when commentators wondered whether the 

antitrust laws were suited to address rapidly evolving technology markets. The D.C. Circuit 

made clear in the Microsoft case that the antitrust laws were sufficiently flexible to support a 

holding that the dominant technology firm of that time had violated the antitrust laws.1 

Congress asked the question again in 2002 when it created the Antitrust Modernization 

Commission. As described in the first chapter of the Antitrust Modernization Commission’s 

Report issued in 2007: 

The term “new economy” can describe a diverse array of markets in which 

new information, communication, and other technologies have produced 

significant changes in recent decades. For purposes of this Report, the key 

question is whether antitrust analysis can properly account for the economic 

characteristics of these markets. Those characteristics include innovation, 

intellectual property, and technological change.2 

Following an extensive inquiry, the Antitrust Modernization Commission concluded: 

Commenters and witnesses largely agree that antitrust analysis has sufficient 

grounding in solid economic analysis, openness to new economic learning, 

and flexibility to enable the courts and the agencies properly to assess 

competitive issues in new economy industries. Most importantly, commenters 

1

 United States v. Microsoft Corp., 253 F.3d 34, 65-67 (D.C. Cir. 2001). 

2

 ANTITRUST MODERNIZATION COMMISSION REPORT AND RECOMMENDATIONS 31 (April 2017), 

https://govinfo.library.unt.edu/amc/report_recommendation/amc_final_report.pdf. 

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noted, the economic principles on which antitrust is based do not require 

revision for application to those industries. As one economist [Carl Shapiro] 

noted, basic economic principles do not become “outdated” simply because 

industries become highly dynamic.3 

In other words, previous periods of reflection have concluded that the antitrust laws are 

sufficiently broad and flexible to address the issues of the day, including rapidly evolving tech 

markets. 

In recent years, the same question again has arisen: are our antitrust laws capable of 

addressing the concerns that have been raised about so-called Big Tech? This time, though, the 

discussion differs in notable ways. 

First, while antitrust issues contribute to this question, the concerns about Big Tech are 

many and varied. Some observers are concerned about the seemingly limitless collection of 

consumer data by tech platforms, and the ways in which those data are used, shared, and 

monetized. Others are concerned about content curation and censorship. And still others are 

concerned about traditional antitrust issues, including serial acquisitions by large tech companies 

and refusals to deal with competitors. 

Each of these concerns is worthy of discussion. But just because we hold the hammer of 

antitrust law in our hands does not mean we should treat every concern as a nail, lest we risk 

bludgeoning our entire economy. The better approach is to disaggregate the varied concerns 

about the tech sector and address each concern with the appropriate tools. For example, privacy 

concerns require federal privacy legislation, which I heartily support. And Congress may 

conclude that content curation concerns require reforms to Section 230. 

That leaves the competition concerns. I believe the antitrust laws as currently written are 

sufficiently broad and flexible to address the competition issues in the dynamic and rapidly 

evolving tech sector. As noted above, the Department of Justice in the 1990s won its antitrust 

case against Microsoft, the dominant tech firm of that era. In December 2020, the FTC launched 

an antitrust challenge against Facebook.4

 Even before that, the FTC initiated an antitrust case 

against Surescripts, a multi-sided platform that facilitates electronic prescribing, alleging 

monopolization of two markets.5

 In October 2020, the DOJ and 11 State Attorneys General 

3 Id. 

4

 Complaint, FTC v. Facebook, Inc., No. 1:20-cv-03590 (D.D.C. Jan. 13, 2021), 

https://www.ftc.gov/system/files/documents/cases/051_2021.01.21_revised_partially_redacted_complaint.pdf. 

5

 Press Release, Fed. Trade Comm’n, FTC Charges Surescripts with Illegal Monopolization of E-Prescription 

Markets (Apr. 24, 2019), https://www.ftc.gov/news-events/press-releases/2019/04/ftc-charges-surescripts-illegalmonopolization-e-prescriptionillegal monopolization-e-prescription (“The FTC alleges that Surescripts intentionally 

set out to keep e-prescription routing and eligibility customers on both sides of each market from using additional 

platforms (a practice known as multihoming) using anticompetitive exclusivity agreements, threats, and other 

exclusionary tactics.”). 

3 
 

 

brought an antitrust case against Google;6 State Attorneys General subsequently filed three 

additional cases against Google.7 The press has covered reportedly ongoing investigations into 

other Big Tech companies.8 The FTC is analyzing transactions made by Amazon, Apple, 

Facebook, Microsoft, and Google owner Alphabet that fell below pre-merger notification filing 

thresholds.9 And the District of Columbia sued Amazon in May.10 Prudence would dictate 

allowing these cases and investigations to play out before implementing sweeping legislative 

reforms. 

The second way in which today’s iteration of the question differs is this: the doubts that 

have been raised about the adequacy of our antitrust laws are not limited to dynamic and rapidly 

evolving markets. Instead, would-be reformers propose sweeping changes to our antitrust laws 

that would result in a fundamental transformation of our economy. The breadth of their 

aspirations is confirmed by the sweeping range of topics covered in President Biden’s recent 

Executive Order on competition.11 The topic of today’s hearing – labor and monopsony – 

highlights just one of those broader goals. 

To be clear, the issues we will discuss today are important ones. But we should keep two 

points in mind during this discussion. First, the antitrust laws as they exist today embody 

concepts like monopsony and prohibit anticompetitive agreements like no-poach agreements and 

unreasonable non-competes. Second, antitrust enforcement as it exists today supports challenges 

to anticompetitive conduct that harms labor, middlemen, and other entities beyond the end 

consumer. I am deeply troubled by proposals to replace modern antitrust enforcement and market 

forces with government micromanagement. Attempting to regulate the economy into 

6

 Complaint, United States et al. v. Google, No. 1:20-cv-03010 (D.D.C. Oct. 20, 2020), 

https://www.justice.gov/opa/press-release/file/1328941/download. 

7

 Complaint, Utah et al. v. Google, No. 3:21-cv-05227 (N.D. Cal. July 7, 2021), 

https://ag.ny.gov/sites/default/files/utah_v_google.1.complaint_redacted.pdf; Complaint, Colorado et al. v. Google 

LLC, No. 1:20-cv-03715-APM (D.D.C. Dec. 17. 2020), https://ag.ny.gov/sites/default/files/redacted_complaint_-

_colorado_et_al._v._google.pdf; Complaint, Texas et. al v. Google LLC, No. 4:20-cv-00957-SDJ (E.D. Tex. Dec. 

16, 2020), 

https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/Press/20201216%20COMPLAINT_RE 

DACTED.pdf. 

8

 Margaret Harding McGill, Fall antitrust forecast: Biden raises hammer on Big Tech, AXIOS (Aug. 30, 2021), 

https://www.axios.com/antitrust-big-tech-apple-google-amazon-facebook-2e619cf6-2fd9-48be-bc72-

0e36cb7fdcfb.html. 

9

 Press Release, Fed. Trade Comm’n, FTC to Examine Past Acquisitions by Large Technology Companies 

(February 11, 2020), https://www.ftc.gov/news-events/press-releases/2020/02/ftc-examine-past-acquisitions-largetechnology-companies; see also Press Release, Fed. Trade Comm’n, FTC Staff Presents Report on Nearly a Decade 

of Unreported Acquisitions by the Biggest Technology Companies (September 15, 2021), 

https://www.ftc.gov/news-events/press-releases/2021/09/ftc-report-on-unreported-acquisitions-by-biggest-techcompanies. 

10 Complaint, District of Columbia v. Amazon, No. 2021 CA 001775 B (D.C. Super. Ct. May 25, 2021), 

https://oag.dc.gov/sites/default/files/2021-05/Amazon-Complaint-.pdf. 

11 Exec. Order No. 14,036, 86 Fed. Reg. 36, 987 (July 9, 2021), https://www.govinfo.gov/content/pkg/FR-2021-07-

14/pdf/2021-15069.pdf. 

4 
 

 

 

competition, instead of engaging in antitrust enforcement based on sound economic principles, 

has harmed Americans in the past.12 This approach will undermine the American economy at the 

very moment it is struggling to recover from the COVID-19 pandemic. In addition, abandoning 

fact-based enforcement and sound economic principles for a highly interventionist competition 

policy that picks winners and losers will create incentives for rent-seeking and regulatory 

gamesmanship instead of competition and innovation. This result will harm everyone, including 

American labor. 

Today’s Antitrust Standards Address Monopsony and Labor Issues 

I will discuss occupational licensing, monopsony, and non-compete and no-poach 

agreements in turn. 

Occupational Licensing 

States have a legitimate interest in protecting the health, safety, and welfare of their 

residents, and occupational licensing regimes may help advance these goals. But all too 

frequently, occupational licensing regimes are used by incumbents – those already licensed in a 

state – to erect barriers to entry and insulate themselves from competition.13 Rent-seeking by 

incumbents limits consumer choice, drives up prices, and may decrease quality.14 

The FTC has challenged attempts by market incumbents to suppress competition through 

state boards. For instance, the Commission challenged actions by the North Carolina State Board 

of Dental Examiners that excluded non-dentist providers of teeth whitening goods and services 

from selling their products to consumers in North Carolina.15 In a similar vein, the FTC 

challenged actions by the South Carolina Board of Dentistry that restricted the delivery of 

preventive dental services by licensed dental hygienists to economically disadvantaged children 

in South Carolina schools.16 

12 Christine S. Wilson and Keith Klovers, The growing nostalgia for past regulatory misadventures and the risk of 

repeating these mistakes with Big Tech, 8 J. OF ANTITRUST ENFORCEMENT 10 (discussing railroad and airline 

regulations once administered by the Interstate Commerce Commission and the Civil Aeronautics Board and the 

stunning amnesia regarding the enormous harm those regulations caused to consumers). 

13 See Maureen K. Ohlhausen and Greg Luib, Brother, May I?: The Challenge of Competitor Control Over Market 

Entry, 4 JOURNAL OF ANTITRUST ENFORCEMENT 111 (2016). 

14 Paul J. Larkin, Jr., Public Choice Theory and Occupational Licensing, 39 HARVARD J. OF LAW & PUBLIC POLICY 

209, 235-238 (2010) (surveying studies that find occupational licensing does not lead to quality improvements or 

other benefits that offset price increases). 

15 See North Carolina State Bd. Dental Examiners v. FTC, 574 U.S. 494 (2015); see also National Association of 

Social Workers, 116 F.T.C. 140 (March 3, 1993) (charging professional association of social workers with engaging 

in unlawful concerted action by adopting rules to restrain competition within the profession). 

16 Complaint, South Carolina State Board of Dentistry, FTC File No. 0210128 (September 15, 2003), 

https://www.ftc.gov/sites/default/files/documents/cases/2003/09/socodentistcomp.pdf. 

5 
 

 

In addition to bringing enforcement actions, the FTC has a rich history of analyzing, and 

seeking to inform policymakers of, the impact of occupational licensing restraints.17 The agency 

provides input to courts, legislatures, agencies, and self-regulatory entities on initiatives that may 

raise barriers to entry, limit choice, or otherwise hinder competition. It is of course appropriate 

for government bodies to promote goals other than competition, including public health, safety, 

and security. But through Commission-authorized comments, FTC staff seek to identify the 

potential harms to competition so that policymakers can weigh those harms against other benefits 

to consumers and the public interest. 

The FTC has submitted literally hundreds of comments and amicus briefs to policymakers 

across a wide range of industries.18 For example, the FTC staff consistently has urged state and 

federal agencies to avoid imposing restrictions on the scope of practice for advanced practice 

registered nurses and physician assistants unless those restrictions are necessary to address wellfounded patient safety concerns.19 

Developments during the COVID-19 pandemic demonstrated that easing restrictions on 

occupational licensing can increase the availability of professionals to the benefit of consumers. 

In particular, the pandemic highlighted the pitfalls of occupational licensing regimes that restrict 

the mobility of medical professionals and preclude them from providing services within their 

scope of medical expertise. Both state and federal agencies waived or repealed regulations that 

constrained the mobility and supply of health care professionals, reducing delays and restrictions 

on the availability of care.20 

17 Recently, the Commission examined questions of occupational licensing in detail. In 2017, Acting Chairman 

Maureen Ohlhausen created an Economic Liberty Task Force to renew the Commission’s efforts to address 

occupational licensing regulations. In 2018, the Economic Liberty Task Force released its report. FTC Staff Paper, 

Policy Perspectives: Options to Enhance Occupational License Portability (Sept. 2018), 

https://www.ftc.gov/system/files/documents/reports/options-enhance-occupational-licenseportability/license_portability_policy_paper.pdf. 

18 For an overview of the advocacy efforts involving occupational licensing and regulation, see Prepared Statement 

of Fed. Trade Comm’n on Competition and the Potential Costs and Benefits of Professional Licensure, before the H. 

Comm. on Small Bus., 113 Cong. 14 (July 16, 2014), 

https://www.ftc.gov/system/files/documents/public_statements/568171/140716professionallicensurehouse.pdf. 

19 See, e.g., FTC Staff Paper, Policy Perspectives: Competition and the Regulation of Advanced Practice Nurses 

(March 2014), https://www.ftc.gov/system/files/documents/reports/policy-perspectives-competition-regulationadvanced-practice-nurses/140307aprnpolicypaper.pdf; FTC Staff Comment to the Dep’t of Veterans Affairs (July 

25, 2016), https://www.ftc.gov/system/files/documents/advocacy_documents/comment-staff-ftc-office-policyplanning-bureau-competition-bureau-economics-departmentveterans/v160013_staff_comment_department_of_veterans_affairs.pdf (supporting proposed rule that would allow 

APRNs to provide services required by the VA without the oversight of a physician); FTC Staff Comment to the 

Iowa Dep’t of Public Health (Dec. 20, 2016), https://www.ftc.gov/system/files/documents/advocacy_documents/ftcstaff-comment-professional-licensure-division-iowa-department-public-health-regardingproposed/v170002_ftc_staff_comment_to_iowa_dept_of_public_health_12-21-16.pdf (regarding the appropriate 

level of supervision of physician assistants). 

20 Christine S. Wilson & Pallavi Guniganti, Deregulating Health Care in a Pandemic—and Beyond, 43 Antitrust 14 

(Summer 2020), 

https://www.ftc.gov/system/files/documents/public_statements/1579079/summer_2020_wilson_deregulating_health 

6 
 

 

 

 

 

 

It was gratifying to see these changes, although unfortunate that a global pandemic was 

necessary to prompt them. As a society, we can choose to focus on the positive and preserve, 

even after the pandemic subsides, the enhanced levels of choice and competition in health care 

now emerging. Legislators and regulators should consider which laws and rules are truly 

necessary for patients’ safety, and which ones create unnecessary barriers to market entry. 

Specifically, changes made to address COVID-19 give policymakers the opportunity to observe 

how the absence of these restraints has impacted patients. Moreover, the fact that states have 

responded differently during the pandemic will enable comparative analyses, highlighting the 

benefit of states as laboratories of democracy. 

Monopsony Resulting From Mergers or Collusive Agreements 

A monopoly arises when a market has only one seller but many buyers; conversely, a 

monopsony arises when a market has many sellers but only one buyer.21 Both the FTC and DOJ 

have brought cases premised on monopsony concerns, and litigants in private antitrust cases have 

prevailed on monopsony allegations. As the following examples demonstrate, monopsony power 

may serve as the basis for violations of the Clayton Act and the Sherman Act, even when 

ultimate downstream markets are not impacted. In other words, existing antitrust standards do 

not preclude cases based on monopsony harms to labor and middlemen.22 

In the merger context, the 2010 Horizontal Merger Guidelines devote a section to 

explaining that “[m]ergers of competing buyers can enhance market power on the buying side of 

the market, just as mergers of competing sellers can enhance market power on the selling side of 

the market.”23 Notably, the 2010 Horizontal Merger Guidelines provide that monopsony 

concerns may arise “even if the merger will not lead to any increase in the price charged by the 

merged firm for its output.”24 

Applying the Guidelines, the antitrust agencies examine proposed mergers to identify 

potential monopsony issues. For instance, the FTC recently required global health care company 

Grifols S.A. to divest blood plasma collection centers in three U.S. cities to resolve charges that 

_care_in_a_pandemic-_and_beyond.pdf (discussing the ways in which both federal and state authorities waived, 

suspended, and repealed occupational licensing restrictions during the pandemic). 

21 Robert S. Pindyck and Daniel L. Rubinfeld, MICROECONOMICS 349 (7th edition), Instructor’s Review Copy 

(2009). 

22 In Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., the Supreme Court vacated a jury verdict finding a 

Sherman Act Section 2 violation, but made it clear that a monopsony claim did not require a showing of increased 

prices in a downstream market or even any harm to consumers. 127 S. Ct. 1069, 1076 (2007). (“case does not 

present . . . a risk of significantly increasing concentration in . . . the market for finished lumber”); id. at 1078 

(“Even if output prices remain constant, a predatory bidder can use its power as the predominant buyer of inputs to 

force down input prices and capture monopsony profits.”). Antitrust analysis and guidance does at times speak 

generally using specific harms for “simplicity of exposition,” but proponents of reform are incorrect to imply the 

antitrust only evaluates prices effects on a narrow group of downstream consumers. See, e.g., U.S. DEP’T OR JUSTICE 

& FED. TRADE COMM’N, HORIZONTAL MERGER GUIDELINES § 1 (Aug. 19, 2010) (“For simplicity of exposition, 

these Guidelines generally discuss the analysis in terms of such price effects.”). 

23 See U.S. DEP’T OR JUSTICE & FED. TRADE COMM’N, HORIZONTAL MERGER GUIDELINES § 12 (Aug. 19, 2010). 

24 Id. at Ex. 24. 

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Grifols’ acquisition of Biotest US Corporation would be anticompetitive.25 The FTC’s analysis 

stated that Grifols and Biotest were the only two buyers of human source plasma in three U.S. 

cities, and that these three cities constituted relevant geographic markets because plasma donors 

typically do not travel more than twenty-five minutes to donate plasma.26 Absent divestitures, 

Grifols likely would have been able to exercise monopsony power by unilaterally decreasing 

donor fees in the three cities.27 

Also applying the 2010 Horizontal Merger Guidelines, the DOJ filed a complaint against 

the proposed acquisition by Aetna Inc. of the Prudential Insurance Company of America.28 The 

complaint alleged that the acquisition would eliminate head-to-head competition between the 

parties for the sale of health maintenance organization and HMO-based point-of-service health 

plans in two relevant geographic markets (Houston and Dallas).29 This claim rested on the 

merging parties’ role as sellers of HMO and HMO-POS services. But for today’s purposes, it is 

notable that the complaint also alleged that the acquisition would enable Aetna to unduly depress 

physicians’ reimbursement rates in those same cities, resulting in a reduction in quantity or a 

degradation in quality of physicians’ services.30 This allegation focused on the role of the 

merging parties as buyers of physicians’ services – in other words, the ability of the entity to 

exercise monopsony power. The proposed settlement required divestitures of certain assets 

25 Press Release, Fed. Trade Comm’n, FTC Requires Grifols S.A. to Divest Assets as Condition of Acquiring 

Biotest US Corporation (August 1, 2018), https://www.ftc.gov/news-events/press-releases/2018/08/ftc-requiresgrifols-sa-divest-assets-condition-acquiring-biotest. 

26 Analysis of Agreement Containing Consent Orders to Aid Public Comment at 2, Grifols S.A., File No. 181-0081 

(Aug. 1, 2018), https://www.ftc.gov/system/files/documents/cases/181_0081_c4654_grifols-biotest_analysis.pdf. 

27 The complaint and remedy also addressed the U.S. market for hepatitis B immune globulin (“HBIG”), a plasmaderived injectable medicine that provides hepatitis B antibodies for preventing hepatitis B infections. The proposed 

acquisition included a significant ownership stake in ADMA Biologics (“ADMA”), which would have allegedly 

eliminated substantial competition between ADMA, the largest supplier of HBIG, and Grifols, the third-largest 

supplier. The consent agreement prohibited Grifols from obtaining ownership or control of any ADMA stock. 

Analysis of Agreement Containing Consent Order to Aid Public Comment, Grifols S.A., File No. 181-0081 (Aug. 1, 

2018), https://www.ftc.gov/system/files/documents/cases/181_0081_c4654_grifols-biotest_analysis.pdf. 

28 Complaint, United States v. Aetna Inc., No. 3-99-CV-398-H (N.D. Tex. June 21, 1999), 

https://www.justice.gov/atr/case-document/complaint-1. Monopsony concerns outside of labor have also been 

addressed in merger enforcement. In DOJ’s challenge of the Charter/Time Warner merger, DOJ alleged that the 

parties competed as buyers of video content and the merger enhanced the parties’ ability to restrain access to these 

critical inputs for new entrants. Accordingly, the proposed combination was alleged to substantially lessen 

competition in video programming distribution because of the buying power that could prevent nascent competition 

from emerging. The settlement prohibited the merged entity from entering into or enforcing any agreement with a 

programmer that limited or created incentives to limit the programmer’s provision of content to certain potential 

competitors of the parties. United States v. Charter Communications, Inc. et al., Competitive Impact Statement, No. 

1:16-cv-00759 (D.D.C. May 10, 2016), https://www.justice.gov/atr/file/844831/download. 

https://www.justice.gov/atr/file/850161/download. 

29 Complaint ¶ 26, United States v. Aetna Inc., No. 3-99-CV-398-H (N.D. Tex. June 21, 1999), 

https://www.justice.gov/atr/case-document/complaint-1. 

30 Id. at ¶ 33. 

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sufficient to preserve competition both for the sale of HMO and HMO-POS plans and for the 

purchase of physicians’ services in the relevant geographic markets.31 

Agency challenges premised on monopsony concerns are not limited to mergers. For 

instance, in 2018, the FTC obtained a settlement with two companies that provided therapist 

staffing services to home-health agencies. According to the FTC’s complaint, the two owners 

agreed to lower their therapist pay rates to the same level, and they also invited several of their 

competitors to lower their rates in an attempt to keep therapists from switching to staffing 

companies that paid more.32 The complaint charged the staffing agency and the two owners with 

violating Section 5 of the Federal Trade Commission Act by “unreasonably restraining 

competition to offer competitive pay rates to therapists,” “fixing or decreasing pay rates for 

therapists,” and “depriving therapists the benefits of competition among therapist staffing 

companies.”33 And the DOJ brought an action against firms that procure billboard leases that had 

agreed to refrain from bidding on former leases for a year after a conspirator lost or abandoned 

the space.34 The challenged agreement was limited to the input market – the procurement of 

billboard leases – and did not extend to downstream sales where the parties also competed.35 

Non-Compete Provisions 

Non-compete agreements that are unreasonable as to temporal length, subject matter, 

and/or geographic scope will be found to violate both federal36 and state antitrust laws. 

Moreover, state and common law provide rich guidance on this topic. And to date, the economic 

evidence regarding the impact of non-competes in the labor arena is mixed. For these reasons, I 

believe we should heed the wise guidance of Justice Brandeis, who noted that “a single 

courageous state may, if its citizens choose, serve as a laboratory” and “[d]enial of the right to 

experiment may be fraught with serious consequences to the nation.”37 

31 Revised Competitive Impact Statement, United States v. Aetna Inc., No. 3-99-CV-398-H (N.D. Tex. June 21, 

1999), https://www.justice.gov/atr/case-document/revised-competitive-impact-statement. 

32 See Complaint at 3–5, Your Therapy Source, LLC, F.T.C. File No. 171–0134 (2018), 

https://www.ftc.gov/system/files/documents/cases/1710134_your_therapy_source_complaint_7-31-18.pdf. 

33 Id. at 5. 

34 See United States v. Brown, 936 F.2d 1042, 1044–45, 1044 n.1, 1050 (9th Cir. 1991) (affirming jury verdict 

convicting defendants of conspiring to restrain trade in violation of Section 1 of the Sherman Act). 

35 Id. at 1045. 

36 Although not involving labor, the FTC recently required merging parties to strike an overly broad non-compete 

provision from the purchase agreement to remedy concerns regarding the anticompetitive consequences of that 

provision. Analysis of Agreement Containing Consent Orders to Aid Public Comment, DTE Energy Company et al., 

No. 191-0068 (Sept. 13, 2019), https://www.ftc.gov/system/files/documents/cases/07_dteenbridge_aapc_redacted.pdf (“Under the terms of the proposed Consent Agreement, and to maintain competition in 

the affected market post-merger, Respondents are required to strike the Non-Compete from the purchase agreement 

and are prohibited from entering similarly anticompetitive agreements with their pipeline competitors in this 

market.”). 

37 New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (“To stay experimentation in things social and 

economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to 

the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens 

9 
 

 

 

Studies analyzing the impact of non-competes in the labor arena have revealed mixed 

results. Some studies have found that non-competes suppress employee wages and mobility. For 

example, one study found that a ban on non-competes for technology workers increased mobility 

by 11 percent and new-hire wages by four percent.38 Another study concluded that moving from 

the 10th to the 90th percentile in enforceability on non-competes decreased earnings by three to 

four percent.39 For low-wage workers, the group that has received the most attention,40 Michael 

Lipsitz (of the Federal Trade Commission) and Evan Starr found that Oregon’s 2008 ban on noncompetes for low-wage workers increased hourly wages by up to roughly three percent.41 

Other studies have found that non-competes have a beneficial impact on employee wages 

and other employee benefits. For example, one study concluded that physicians who sign noncompetes tend to earn more money.42 Another study found that non-competes increase incentives 

for firm-sponsored employee training.43 And other research has revealed that employee 

awareness of non-competes before offers are accepted generates higher wages relative to 

employees without non-competes.44 

It is also important to consider the impact of non-competes on stakeholders other than 

employees. Non-compete agreements can facilitate innovation by assuring firms that trade 

secrets and other firm know-how will not be transferred to a rival.45 One study compared high 

choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. 

This Court has the power to prevent an experiment.”). 

38 Natarajan Balasubramanian, et al., Locked In? The Enforceability of Covenants Not to Compete and the Careers 

of High-Tech Workers (U.S. Census Bureau Center For Econ. Studies Paper No. CES-WP-17-09, 2019), 

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2905782. 

39 Matthew S. Johnson et al., The Labor Market Effects of Legal Restrictions on Worker Mobility 2 (Working Paper, 

Feb. 17, 2020). 

40 Glenn Kessler, Biden once again bungles a story about low-wage noncompete agreements, WASH. POST (July 14, 

2021) (quoting President Biden at the competition executive order stating “Or there were clauses in McDonald’s 

contracts: You can’t leave Burger King to go to McDonald’s. Come on. Is there a trade secret about what’s inside 

that patty?”). 

41 Michael Lipsitz & Evan Starr, Low-Wage Workers and the Enforceability of Non-Compete Agreements, (Dec. 

2019) (Management Science, Forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3452240. 

42 Kurt Lavetti et al., The Impacts of Restricting Mobility of Skilled Service Workers: Evidence from Physicians, 55 J 

OF HUMAN RES. 1025 (Feb. 7, 2019), http://kurtlavetti.com/UIPNC_vf.pdf (“Using three years of longitudinal 

earnings data per physician, we estimate that NCAs increase the annual rate of earnings growth by an average of 8 

percentage points in each of the first 4 years of a job, with a cumulative effect of 35 percentage points after 10 years 

on the job.”). 

43 Mark J. Garmaise, Ties that Truly Bind: Non-competition Agreements, Executive Compensation and Firm 

Investment, 27 J. OF LAW, ECON., AND ORG. 2, at 376-425 (August 2011). 

44 Evan Starr, et al., Noncompetes in the U.S. Labor Force (Univ. of Michigan Law & Econ Research Paper No. 18-

013, 2019), http://dx.doi.org/10.2139/ssrn.2625714. 

45 OFFICE OF ECON. POLICY, U.S. DEP’T OF THE TREASURY, NON-COMPETE CONTRACTS: ECONOMIC EFFECTS AND 

POLICY IMPLICATIONS, 9 (March 2016) https://www.treasury.gov/resource-center/economicpolicy/Documents/UST%20Non-competes%20Report.pdf (“[N]on-competes can encourage additional economic 

activity and broader information sharing when trade secrets are significant.”). 

10 
 

 

 

and low non-compete enforceability regimes and concluded that enforceability facilitates riskier 

research and development investments.46 Another study of financial advisors found that ending 

enforcement of non-competes lowered prices to consumers, but also led to a larger than 40 

percent increase in incidents of misconduct because firms were more reluctant to discipline 

advisors.47 Non-competes can also help firms and workers match more appropriately based on 

separation costs.48 

States have or are moving to adopt laws in this area. In California,49 North Dakota,50 and 

Oklahoma,51 non-competes are prohibited. And several states have considered or passed 

legislation that limit non-competes for certain types of employees (e.g., Hawaii,52 New Mexico,53 

and Oregon54). Many states are considering bills or adjusting already passed legislation to 

address employee non-competes.55 

Despite mixed evidence on the impact of non-competes and the growing number of states 

with not just common law but legislation, some commentators continue to advocate for a federal 

solution. They assert that even when non-competes violate state law, employees who cannot 

afford a lawyer may experience an in terrorem effect.56 But state attorneys general are wellpositioned to take an active role in this arena, as the New York Attorney General did in its 

heavily publicized settlement with Jimmy John’s.57 

46 Raffaele Conti, Do Non-Competition Agreements Lead Firms to Pursue Risky R&D Projects? 35 STRATEGIC 

MGMT. J. 1230 (Oct. 17, 2012). 

47 Umit G. Gurun, et al., Unlocking Clients: Non-Compete Agreements in the Financial Advisory Industry (Kelley 

School of Bus. Research Paper No. 18-29, 2019). 

48 OFFICE OF ECON. POLICY, U.S. DEP’T OF THE TREASURY, NON-COMPETE CONTRACTS: ECONOMIC EFFECTS AND 

POLICY IMPLICATIONS, 9 (March 2016), https://www.treasury.gov/resource-center/economicpolicy/Documents/UST%20Non-competes%20Report.pdf ([I]f firms with unusually high separation costs are able to 

match more appropriately with workers, both worker and firm are better off.). 

49 Cal. Business & Professions Code § 16600. 

50 N.D. Cent. Code § 9-08-06. 

51 OK Stat. § 15- 219A. 

52 Haw. Rev. Stat. § 480-4 (technology business employees). 

53 N.M.S.A. 1978, §§ 24-1I-1-5 (healthcare practitioners). 

54 Or. Rev. Stat. § 653.295 (income threshold). 

55 Kevin M. Cloutier, et al., What Employers Need to Know About New Non-Compete Legislation in Illinois, The 

National Law Review (June 8, 2021), https://www.natlawreview.com/article/what-employers-need-to-know-aboutnew-non-compete-legislation-illinois (“Following a nationwide trend, Illinois has proposed significant legislation 

affecting employee restrictive covenants, such as non-compete agreements.”). 

56 Suresh Naidu, et al., Antitrust Remedies for Labor Market Power, 132 HARVARD L. REV. 536, 545 (2018). 

57 Press Release, A.G. Schneiderman Announces Settlement With Jimmy John’s To Stop Including Non-Compete 

Agreements In Hiring Packets (June 22, 2016) https://ag.ny.gov/press-release/ag-schneiderman-announcessettlement-jimmy-johns-stop-including-non-compete-agreements. 

11 
 

 

 

As Justice Brandeis wrote, “[t]o stay [state-by-state] experimentation in things social and 

economic is a grave responsibility.”58 The elected officials in each state are best situated to 

weigh the costs and benefits of non-competes and make decisions tailored to the unique 

circumstances in their jurisdictions. And as with occupational licensing suspensions during the 

pandemic, state-by-state changes will provide beneficial opportunities for research in this area. A 

federal solution at this time is premature. 

No-Poach Agreements 

Antitrust laws prohibiting price-fixing and market allocation apply to labor markets, 

including no-poach and similar agreements among competitors to constrain labor. Guidance 

published jointly by the FTC and the DOJ states clearly that wage-fixing and no-poach 

agreements may be prosecuted as criminal antitrust violations. Enforcement in this area, 

including by the state attorneys general, underscores the message to the business community that 

these agreements will not be condoned. 

In 2016, the FTC and the DOJ issued guidance for human resources professionals.59 The 

guidance explains that “[n]aked wage-fixing or no-poaching agreements among employers, 

whether entered into directly or through a third-party intermediary, are per se illegal under the 

antitrust laws.”60 The guidance then warns that “the DOJ intends to proceed criminally against 

naked wage-fixing or no-poaching agreements. These types of agreements eliminate competition 

in the same irredeemable way as agreements to fix product prices or allocate customers, which 

have traditionally been criminally investigated and prosecuted as hardcore cartel conduct.”61 

According to the guidance, criminal charges can be brought against both the individuals and the 

companies involved.62 

Beyond clear warnings to the business community, the federal antitrust agencies have a 

history of challenging no-poach and related agreements that harm labor. The FTC’s history in 

this area dates back to at least the 1990s. In 1992, the FTC reached a consent with Debes Corp. 

for entering into agreements to boycott temporary nurses’ registries in order to eliminate 

competition among the nursing homes for the purchase of nursing services, which depressed the 

price of those services.63 In 1995, the FTC reached a consent with the Council of Fashion 

Designers of America and the organization that produces the fashion industry’s two major 

58 New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932). 

59 DEP’T OF JUSTICE, ANTITRUST DIV. & FED. TRADE COMM’N, ANTITRUST GUIDANCE FOR HUMAN RESOURCE 

PROFESSIONALS (Oct. 2016), https://www.justice.gov/atr/file/903511/download. 

60 Id. at 3. 

61 Id. at 4. 

62 Id. 

63 In re Debes Corp., 115 F.T.C. 701 (1992), 

https://www.ftc.gov/sites/default/files/documents/commission_decision_volumes/volume115/ftc_volume_decision_115_january_-_december_1992pages_670-773.pdf. 

12 
 

 

fashion shows for attempting to reduce the fees and other terms of compensation for models.64 In 

2007, the DOJ reach a consent with the Arizona Hospital & Healthcare Association for acting on 

behalf of most hospitals in Arizona to set a uniform bill rate for temporary and per diem nurses.65 

And in 2010 and 2014, the DOJ filed civil complaints and reached consents in three cases against 

eight technology companies – including Apple and Google – for agreeing not to cold call each 

other's employees and in two of the cases outright agreeing to limit hiring current employees 

from certain competitors.66 

More recently, in 2018, the FTC obtained a consent with two companies – including an 

owner and former owner – that provided therapist staffing services to home-health agencies.67 

The complaint alleged that the companies agreed to lower their therapist pay rates to equal levels 

and invited several competitors to do the same, all to prevent therapists from switching to 

staffing companies that paid more.68 The complaint charged the staffing agency and the two 

owners with violating Section 5 of the FTC Act by “unreasonably restraining competition to 

offer competitive pay rates to therapists,” “fixing or decreasing pay rates for therapists,” and 

“depriving therapists the benefits of competition among therapist staffing companies.”69 The 

DOJ followed by indicting one of the former owners as part of this conspiracy and charged him 

with obstruction of the FTC’s proceedings for false and misleading statements.70 

State attorneys general have also played a key role in challenging unlawful no-poach 

agreements. Notably, Washington State investigated and reached settlements with seven fastfood corporations (Arby’s, Auntie Anne’s, Buffalo Wild Wings, Carl’s Jr., Cinnabon, Jimmy 

John’s, and McDonald’s) to remove “no-poach provisions” from their franchise agreements that 

64 Press Release, Fed. Trade Comm’n, Council of Fashion Designers of America (June 9, 1995), 

https://www.ftc.gov/news-events/press-releases/1995/06/council-fashion-designers-america. 

65 Competitive Impact Statement, Arizona Hospital and Healthcare Association, No. CV07-1030-PHX (May 22, 

2007), https://www.justice.gov/atr/case-document/competitive-impact-statement-36 (“As an immediate consequence 

of reducing bill rates below the competitive level, AzHHA has also caused the wages paid to temporary nurses to 

decrease below competitive levels.”). 

66 See Competitive Impact Statement, United States v. Adobe Sys., Inc., 1:10-cv-01629 (D.D.C. 2010), 

https://www.justice.gov/atr/case-document/competitive-impact-statement-0; Competitive Impact Statement, United 

States v. Lucasfilm Ltd., 1:10-cv-02220 (D.D.C. 2010), https://www.justice.gov/atr/case-document/competitiveimpact-statement-141; Competitive Impact Statement, United States v. eBay., Inc., 12-CV-05869-EJD-PSG (N.D. 

Cal. 2014), https://www.justice.gov/atr/case-document/file/494656/download. 

67 Press Release, Fed. Trade Comm’n, Therapist Staffing Company and Two Owners Settle Charges that They 

Colluded on Rates Paid to Physical Therapists in Dallas/Fort Worth Area (July 31, 2018), https://www.ftc.gov/newsevents/press-releases/2018/07/therapist-staffing-company-two-owners-settle-charges-they. 

68 Complaint, Your Therapy Source, LLC, FTC No. C-4689 (Oct. 26, 2019). 

69 Id. at ¶ 29. 

70 Press Release, Dep’t of Justice, Antitrust Div., Former Owner of Health Care Staffing Company Indicted for 

Wage Fixing (Dec. 10, 2020), https://www.justice.gov/opa/pr/former-owner-health-care-staffing-company-indictedwage-fixing. 

13 
 

 

 

 

 

 

 

acted as restrictions on low-wage workers.71 This work caused the companies to end these 

practices in thousands of locations nationwide.72 Washington State Attorney General Ferguson 

continued his efforts against no-poach agreements, which at the time of his June 2020 report on 

the initiative, had resulted in more than 200 companies at over 197,000 locations nationwide 

ending these no-poach provisions.73 The guidance and enforcement history in this area shows 

that the FTC, the DOJ, and state attorneys general take this conduct and resulting harms to labor 

markets seriously. 

Procedural Irregularities at FTC Preclude Robust Dialogue on Key Policy Issues 

The issues that we are discussing today, together with other antitrust reforms under 

consideration, merit a thoughtful discussion. Traditionally, the FTC has played a significant role 

in the antitrust policy debate, and has long enjoyed strong bipartisan dialogue on cases and 

policy issues. Moreover, this dialogue among Commissioners has benefited from the input of 

stakeholders obtained through hearings, workshops, notice and comment, and 6(b) studies. New 

agency leadership unfortunately has made meaningful dialogue among Commissioners, and 

between the Commission and its stakeholders, difficult by: 

 Muzzling staff internally and externally;74 

71 Press Release, Wash. State Office of the Attorney General, AG Ferguson announces fast-food chains will end 

restrictions on low-wage workers nationwide (July 12, 2018), https://www.atg.wa.gov/news/news-releases/agferguson-announces-fast-food-chains-will-end-restrictions-low-wage-workers. 

72 Id. (Arby’s estimated 3,283 locations nationwide, Auntie Anne’s estimated 1,229 locations nationwide, Buffalo 

Wild estimated 1,214 locations nationwide, Carl’s Jr. estimated 1,168 locations nationwide, Cinnabon estimated 836 

locations nationwide, Jimmy John’s estimated 2,774 locations nationwide, and McDonald’s estimated 16,193 

locations nationwide.). 

73 WASHINGTON STATE ATTORNEY GENERAL’S OFFICE, NO-POACH INITIATIVE 3 (June 2020), https://agportals3bucket.s3.amazonaws.com/uploadedfiles/Another/News/Press_Releases/NoPoachReport_June2020.pdf. 

74 See, e.g., Leah Nylen & Betsy Woodruff Swan, FTC staffers told to back out of public appearances, POLITICO 

(July 6, 2021), https://www.politico.com/news/2021/07/06/ftc-staffers-public-appearances-498386 (“‘For the time 

being I am putting a moratorium on staff participating in external events,’ [FTC Chief of Staff] Howard wrote. The 

message was sent to the head of the FTC’s major offices, including those who oversee all of the agency’s 

economics, antitrust lawyers and consumer protection attorneys. In a follow-up message two days later, Howard said 

that any staff who were scheduled for public events should cancel those appearances. ‘I want to make clear that for 

any situations where staff are currently scheduled to do a public event and thus need to contact event organizers to 

withdraw their participation, the message they should convey is that they are sorry they can no longer participate due 

to pressing matters at the FTC,’ she wrote. ... The temporary moratorium on public appearances may hamper efforts 

to portray the agency as newly transparent.”); Christine S. Wilson, Comm’r, Fed Trade Comm’n, Oral Remarks at 

the Open Commission Meeting (July 21, 2021), 

https://www.ftc.gov/system/files/documents/public_statements/1592366/commissioner_christine_s_wilson_oral_re 

marks_at_open_comm_mtg_final.pdf (“I benefit greatly from a process that facilitates full consultation with staff, 

through oral briefings and comprehensive memoranda, as well as a robust dialogue among the Commissioners. 

News reports have revealed that FTC staff has been muzzled externally – agency personnel are forbidden from 

appearing at any public events. Unfortunately, it appears that staff is being silenced internally, as well.”). 

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 Stifling the flow of agency records and information from staff to the Commission;75 

 Largely abandoning the tradition of comprehensive staff recommendations discussing 

legal and economic issues, prudential considerations and litigation risks for matters 

before the Commission;76 

 Giving minimal notice to Commissioners (and the public) of sweeping policy changes;77 

 Giving no written explanations for sweeping policy changes until after those changes are 

implemented;78 

75 See, e.g., Letter from Commissioner Christine S. Wilson to Clarivate Plc (Sept. 3. 2021), 

https://www.ftc.gov/system/files/documents/public_statements/1595685/wilson_second_request_copy_letter_clariva 

te.pdf (“I regret any imposition this request may cause. Unfortunately, I have been unable to obtain a copy of the 

Second Request from internal sources. As you will understand, as a Commissioner, I am obligated to exercise due 

oversight of Commission business. Absent receipt of the Second Request issued to your client, I cannot fulfill this 

role.”). 

76 See, e.g., Dissenting Statement of Commissioner Christine S. Wilson on the Open Commission Meeting of July 1, 

2021, 9 (July 1, 2021), 

https://www.ftc.gov/system/files/documents/public_statements/1591554/p210100wilsoncommnmeetingdissent.pdf 

(regarding the omnibus resolutions, “I have not had the benefit of expert staff input on the legal and economic 

rationales for undertaking these sweeping measures, let alone their potential impacts and consequences.”); id. at 6 

(regarding rulemaking changes: “Additionally, rulemaking efforts are enhanced when the public has the input from 

expert staff at agencies overseeing the rulemaking process. The FTC has built transparency into our Rules of 

Practice by requiring that rulemaking staff publish a staff report containing their analysis of the rulemaking record 

and recommendations as to the form of the final rule. But the new rules eliminate the staff report requirement.”); id. 

at 1 (“With sufficient notice, advance planning, input from our knowledgeable staff, and a robust dialogue among 

my fellow Commissioners, open Commission meetings could facilitate that goal. Unfortunately, today’s meeting 

falls short on all accounts. In fact, I only learned last Thursday of the Chair’s intention to hold this meeting. At the 

same time, I was informed of her intention to hold votes to rescind the Section 5 Policy Statement and to pass 

several Omnibus Resolutions that would remove from Commission oversight large swaths of Commission 

business.”). 

77 See, e.g., Dissenting Statement of Commissioner Christine S. Wilson on the Open Commission Meeting of July 1, 

2021, 9 (July 1, 2021), 

https://www.ftc.gov/system/files/documents/public_statements/1591554/p210100wilsoncommnmeetingdissent.pdf. 

(“I received this set of resolutions last Friday, giving me fewer than five business days to assess their scope, content, 

and interaction with other existing Commission resolutions and initiatives.”); NetChoice Comment for the Record: 

FTC Open Meeting (September 15, 2021), https://netchoice.org/testimony/netchoice-comment-for-the-record-ftcopen-meeting-september-15-2021/ (“Before we discuss the issues at hand we must again express our disappointment 

in the Commission's seeming lack of effort in soliciting public input. Previously public comment was allowed for as 

little as fifteen days -- again without providing the actual text of the underlying changes. For the Sept 15, 2021 open 

meeting this window for public comment was less than three business days and only five days total. Moreover, this 

notice and comment period fell during the Jewish Holy Week. This continued diminution in public comment 

periods, whether intentional or otherwise, gives the impression that the Commission and its new Chair are not 

seriously interested in comments from the public.”) (internal citation omitted). 

78 Dissenting Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson Regarding the 

Commission’s Rescission of the 2020 FTC/DOJ Vertical Merger Guidelines and the Commentary on Vertical 

Merger Enforcement 1 (Sept. 15, 2021), 

https://www.ftc.gov/system/files/documents/public_statements/1596388/p810034phillipswilsonstatementvmgresciss 

ion.pdf (“Today the FTC leadership continues the disturbing trend of pulling the rug out under from honest 

businesses and the lawyers who advise them, with no explanation and no sound basis of which we are aware”); 

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 Evading meaningful dialogue at the Commission level;79 

 Voting against notice and comment on major policy changes;80 and 

 Short-circuiting public input by adopting policy statements during ongoing rulemakings 

that address precisely the topics at issue.81 

These major changes represent a departure from decades of tradition at the agency. The result? 

Dissenting Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson on the “Statement of the 

Commission on the Withdrawal of the Statement of Enforcement Principles Regarding ‘Unfair Methods of 

Competition’ Under Section 5 of the FTC Act,” (July 9, 2021) (“Last week, with next to no notice or public input, 

the majority withdrew the Commission’s 2015 Statement .... Hinting at the prospect of dramatic new liability 

without any guide regarding what the law permits or proscribes is bad for consumers and bad for our economy—the 

opposite of what Congress intended when it created the FTC.”). 

79 See, e.g., Oral Remarks of Commissioner Christine S. Wilson at the Open Commission Meeting on July 21, 2021, 

1 (July 21, 2021), (“The value of these open meetings for Commission decision making, though, is a different 

matter. To avoid waiver of the Commission’s deliberative process privilege, we must avoid both staff input and a 

dialogue among the Commissioners. Instead, the Chair and Commissioners are limited to delivering monologues 

with no interaction. The format makes these events more akin to theatre than to the reasoned decision making that 

should characterize our institution.”). 

80 At the September 15, 2021 open meeting Commissioner Phillips made a motion, which failed on a party line vote 

3-2, to seek public comment on the proposal to rescind the Vertical Merger Guidelines. At the July 21, 2021 open 

meeting Commissioner Wilson made a motion, which failed on a party line vote 3-2, to seek public comment on the 

proposal to rescind the 1995 Statement of Federal Trade Commission Policy Concerning Prior Approval and Prior 

Notice Provisions. At the July 1, 2021 open meeting Commissioner Wilson made a motion, which failed on a party 

line vote 3-2, to publish the proposed changes to Parts 0 and 1 of the Commission’s Rules of Practice in the Federal 

Register to allow for public comment for 45 days and to have the proposed changes to Parts 0 and 1 of the 

Commission’s Rules of Practice become final only after consideration of comments submitted in response to the 

Federal Register notice. At the July 1, 2021 open meeting Commissioner Wilson made a motion, which failed on a 

party line vote 3-2, to solicit public comments for a 45-day period and consider the comments submitted in response 

to the Federal Register notice before rescinding the Statement of Enforcement Principles Regarding Unfair Methods 

of Competition under Section 5 of the FTC Act. 

81 See, e.g., Oral Remarks of Commissioner Christine S. Wilson on the Open Commission Meeting of September 15, 

2021, 2 (Sept . 15, 2021), 

https://www.ftc.gov/system/files/documents/public_statements/1596380/cw_remarks_open_commission_meeting_9 

_16_2021.pdf (“Moreover, the majority advances this policy U-turn while the agency has an open rulemaking that 

covers not just this Rule, but precisely the topics addressed by their Policy Statement. Specifically, at least three of 

the questions in our federal register notice ask the public for their thoughts on the topics in the Policy Statement. 

Rather than taking public input into account, though, the majority today apparently will take the matter into its own 

hands. Unfortunately, this is not the first time that our new leadership has made a policy U-turn during the pendency 

of a directly relevant rulemaking. Last month, the FTC withdrew guidance on a specific aspect of our merger 

notification requirements. But we have an open rulemaking on our merger notification requirements, and we 

solicited public comment on that very aspect of our reporting regime. It’s a nuanced issue, so we posed two 

questions with 11 sub-parts. The public’s input on that issue, though, is apparently irrelevant.”) (internal citations 

omitted); Dissenting Statement of Commissioner Christine S. Wilson Policy Statement on Breaches by Health Apps 

and Other Connected Devices (Sept. 15, 2021), 

https://www.ftc.gov/system/files/documents/public_statements/1596356/wilson_health_apps_policy_statement_diss 

ent_combined_final.pdf (“I am concerned that the Policy Statement issued by the majority today not only shortcircuits our ongoing rulemaking, but seeks to improperly expand our statutory authority – and to do so unilaterally, 

rather than in concert with other federal agencies with related jurisdiction.”) (internal citation omitted). 

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 Stakeholders are deprived of clarity and guidance regarding the FTC’s enforcement 

intentions in both conduct investigations82 and merger cases.83 A lack of clarity regarding 

what constitutes lawful and unlawful behavior harms honest businesses that seek to 

comply with the law. 

 The FTC is diverging from the DOJ with respect to its enforcement intentions, the 

antithesis of good government.84 This widening gap gives fodder to those who support 

the One Agency Act.85 

 The majority is making fundamental substantive errors in areas in which the Commission 

supposedly holds expertise.86 In other words, faulty processes lead to substantive 

mistakes. 

82 See, e.g., Dissenting Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson on the “Statement 

of the Commission on the Withdrawal of the Statement of Enforcement Principles Regarding ‘Unfair Methods of 

Competition’ Under Section 5 of the FTC Act,” (July 9, 2021), 

https://www.ftc.gov/system/files/documents/public_statements/1591710/p210100phillipswilsondissentsec5enforcem 

entprinciples.pdf (“In so doing, the majority removed clarity for honest businesses that seek to follow the law, which 

today’s statement addresses only with vague promises that, later, it will ‘consider’ new guidance or rules. Hinting at 

the prospect of dramatic new liability without any guide regarding what the law permits or proscribes is bad for 

consumers and bad for our economy—the opposite of what Congress intended when it created the FTC.”). 

83 See, e.g., Dissenting Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson Regarding the 

Commission’s Rescission of the 2020 FTC/DOJ Vertical Merger Guidelines and the Commentary on Vertical 

Merger Enforcement (September 15, 2021), 

https://www.ftc.gov/system/files/documents/public_statements/1596388/p810034phillipswilsonstatementvmgresciss 

ion.pdf (“The uncertainty the Majority creates today is particularly troubling in light of the administration’s 

promises to increase merger enforcement, and to impose punitive penalties on parties proposing mergers that the 

Majority believes are anticompetitive. The majority could have waited to rescind the 2020 Guidelines until they had 

something with which to replace it. It appears they prefer sowing uncertainly in the market and arrogating unbridled 

authority to condemn mergers without reference to law, agency practice, economics, or market realities. The public 

and Congress should be alarmed by the majority’s repeated withdrawal of existing guidance and transparency in 

favor of an amorphous bureaucratic fog that will provide cover for those who seek to politicize antitrust.”) (internal 

citations omitted). 

84 Id. at 5 (“The Majority’s decision to withdraw the Vertical Merger Guidelines also adds to the divide between 

enforcement at the FTC and the Department of Justice. There have long been concerns about different procedures at 

the agencies and perceived differences in the standards for an injunction, leading to repeated calls to modify the 

procedures for the FTC’s merger enforcement program. More recently the concerns have led members of Congress 

to discuss transferring the FTC’s competition authority to DOJ. Unless the DOJ similarly eschews the 2020 

Guidelines, a new schism will appear”) (internal citations omitted). 

85 One Agency Act, S. 633, 117th Cong. § 4 (2021); One Agency Act, H.R.2926, 117th Cong. § 4 (2021) (Chairman 

Jim Jordan, co-sponsor). See also The House Judiciary Republican Agenda for Taking on Big Tech (July 6, 2021), 

https://republicans-judiciary.house.gov/wp-content/uploads/2021/07/2021-07-06-The-House-Judiciary-RepublicanAgenda-for-Taking-on-Big-Tech.pdf (“The current system of splitting antitrust enforcement between the 

Department of Justice and the Federal Trade Commission is inefficient and counterproductive. The arbitrary division 

of labor empowers radical Biden bureaucrats at the expense of Americans. This proposal will consolidate antitrust 

enforcement within the Department of Justice so that it is more effective and accountable.”). 

86 Carl Shapiro & Herbert Hovenkamp, How Will the FTC Evaluate Vertical Mergers?, PROMARKET (Sept. 23, 

2021), https://promarket.org/2021/09/23/ftc-vertical-mergers-antitrust-shapiro-hovenkamp/ (describing the FTC 

majority’s description of EDM in its statement repealing the Vertical Merger Guidelines, leading antitrust scholars 

Herbert Hovenkamp and Carl Shapiro wrote, “[t]his statement is flatly incorrect as a matter of microeconomic 

17 
 

 

 

 

 The FTC’s rich bipartisan tradition – which is so important, given our broad statutory 

mandate, and which took decades to build – has been torn down in a few short months. 

Unfortunately, I fear that our successors at the agency will have a terrible time restoring 

the agency’s reputation with Congress and the public. 

In closing, I thank the Committee for this opportunity to testify, and look forward to 

answering any questions you may have. 

theory. EDM applies (a) to multi-product firms, (b) regardless of whether the firms at either level have monopoly 

power or charge monopoly prices, and (c) regardless of whether the downstream production process involves fixed 

proportions. All of this has been included in economics textbooks for decades, building on a seminal 1950 paper by 

Joseph Spengler. None of the conditions cited by the majority are required for EDM to apply, although they are 

clearly relevant when one is measuring EDM in a specific vertical merger. While EDM does not save every vertical 

merger, it should be part of any vertical merger inquiry and is not nearly as limited as the majority’s statement 

suggests. In drafting its statement, the majority appears not to have consulted with the FTC’s own Bureau of 

Economics. As a result, we have the spectacle of a federal agency basing its policies on a demonstrably false claim 

that ignores relevant expertise. Perhaps we are naïve, but we had been hoping that would stop when Donald Trump 

left office.”); id (describing Chair Khan’s description of antitrust law, the two leading antitrust scholars wrote, 

“[t]his is baffling. The statutory text prohibits mergers whose effect ‘may be substantially to lessen competition, or 

to tend to create a monopoly.’ Consider a merger between two of the smaller firms in a concentrated market. In the 

absence of any efficiencies, such a merger could well be illegal, by eliminating the direct competition between those 

two firms (unilateral effects) or by making it easier for the remaining firms to collude (coordinated effects). 

Suppose, however, that the merger would enable these two smaller firms to achieve economies of scale, with the 

result that output is higher and prices lower than without the merger. There is no logical sense in which that merger 

would ‘lessen competition,’ so the merger cannot violate the statute. The legality of the merger thus must hinge on 

those efficiencies, yet the new FTC would ignore them. Inexplicably, the Chair also categorically dismisses 

‘procompetitive effects’ in merger analysis. How can that make any sense? If a merger will generate procompetitive 

effects and thus will promote competition, on what basis can the Chair claim that the merger will substantially lessen 

competition, a requirement that is explicit in the text of the statute? Indeed, if mergers never produced 

procompetitive effects they could be condemned under a per se rule, but neither the statutory language nor a century 

of enforcement history permits that.”). 

18