1

Maureen K. Ohlhausen1

Commissioner, U.S. Federal Trade Commission

One Agency, Two Missions, Many Benefits: The Case for Housing Competition and 

Consumer Protection in a Single Agency

I. Introduction

Recent developments in the area of institutional design have included the integration of 

competition and consumer protection missions within the same agency. Such integration 

recently has occurred in the Netherlands, Finland, and Denmark, and is under way in Ireland. 

Although a few countries have taken steps away from a dual-mission structure,2 the clear global 

trend in recent years has been to integrate competition and consumer protection missions.

This article makes the case for housing competition and consumer protection authority in 

a single agency, with a particular focus on the U.S. Federal Trade Commission (FTC). This 

article does not necessarily argue that other jurisdictions with separate competition and consumer 

protection agencies should combine those agencies, given the potential costs involved in any 

such integration and the various jurisdiction-specific considerations that must be taken into 

account before proceeding with such integration. In the United States, however, where the 

integration has been in place in some form for a century, there are strong reasons for the FTC to 

remain a dual-mission agency.

This article proceeds as follows. Section II presents an overview of the dual mission at 

the FTC, including the authority and the tools utilized by the agency in pursuit of each mission. 

 1 The views expressed in this article are solely those of Commissioner Ohlhausen and do not necessarily reflect the 

views of the Commission or any other Commissioner. A version of this article will be included in EUROPEAN 

COMPETITION LAW ANNUAL 2014: INSTITUTIONAL CHANGE AND COMPETITION AUTHORITIES (Philip Lowe, Mel 

Marquis & Giorgio Monti eds., Hart Publishing, forthcoming).

2 It does not appear that such moves away from a dual-mission structure were based on any incompatibility between 

the competition and consumer protection missions at these particular agencies.
2

Section III discusses the various benefits that a dual-mission agency may obtain, including most 

importantly improvements in the performance in one mission based on the learnings from the 

other mission. Section III also addresses some areas in which the FTC may not have fully 

achieved such benefits in practice. Section IV argues that, notwithstanding the many benefits of 

integrating the two missions, there are some limits, including for example with respect to the 

importation of privacy considerations, which currently play a prominent role in the consumer 

protection mission, into the competitive effects analysis on the antitrust side of the house. 

Finally, Section V provides some recommendations for the FTC to consider in achieving an 

optimal integration of the competition and consumer protection missions and to maximize the 

benefits of the agency’s dual mission.

II. Overview of the Dual Mission at the FTC

The FTC pursues a dual mission, as the only federal agency with both competition and 

consumer protection jurisdiction in broad sectors of the U.S. economy. First, the FTC enforces 

the federal antitrust laws to protect consumers from anticompetitive mergers and business 

conduct. Second, the Commission engages in enforcement efforts to protect consumers from 

fraudulent, deceptive, and unfair business conduct and to safeguard consumers’ privacy and 

personal information.

As reflected in the FTC’s current strategic plan, this dual mission can be described as 

follows: “Working to protect consumers by preventing anticompetitive, deceptive, and unfair 

business practices, enhancing informed consumer choice and public understanding of the 

competitive process, and accomplishing this without unduly burdening legitimate business 
3

activity.”3

 Accompanying, and closely related to, this mission is the agency’s vision: “A vibrant 

economy characterized by vigorous competition and consumer access to accurate information.”4

A. Authority and Tools Utilized in Pursuit of the Competition Mission

The FTC’s competition mission is executed in principal part by the Bureau of 

Competition (BC), which enforces the “unfair methods of competition” prong of Section 5 of the 

Federal Trade Commission Act.5

 A violation of the Sherman Antitrust Act6 is considered a 

violation of Section 5 of the FTC Act. The FTC also enforces the Clayton Act,

7 which, among 

other things, prohibits corporate acquisitions that may tend substantially to lessen competition. 

Finally, the courts and the FTC have interpreted Section 5 to go beyond the scope of the antitrust 

laws.8

The FTC uses several tools – both enforcement and non-enforcement – in pursuit of its 

competition mission.

 3 FED. TRADE COMM’N, STRATEGIC PLAN FOR FISCAL YEARS 2014 TO 2018 3 (2014), available at

http://www.ftc.gov/system/files/documents/reports/2014-2018-strategic-plan/spfy14-fy18.pdf.

4 Id.

5 Section 5 of the FTC Act provides in relevant part: “Unfair methods of competition in or affecting commerce . . . 

are hereby declared unlawful.” 15 U.S.C. § 45(a)(1). The other prong of Section 5 involves unfair or deceptive acts 

or practices and serves as the basis for the FTC’s consumer protection authority. See infra note 14. An overview of 

the FTC’s investigative and enforcement authority on both the competition and consumer protection side is available 

on the agency’s website at http://www.ftc.gov/about-ftc/what-we-do/enforcement-authority.

6 15 U.S.C. §§ 1 et seq.

7 Id. §§ 12 et seq.

8 Although this topic is beyond the scope of this paper, much ink has been spilled over the extent to which Section 5 

should reach beyond the antitrust laws. See, e.g., Maureen K. Ohlhausen, Section 5 of the FTC Act: Principles of 

Navigation, 2 J. ANTITRUST ENFORCEMENT 1 (2014), available at

http://www.ftc.gov/system/files/documents/public_statements/section-5-ftc-act-principlesnavigation/131018section5.pdf; Maureen K. Ohlhausen, Commissioner, Fed. Trade Comm’n, Section 5: Principles 

of Navigation, Remarks before the U.S. Chamber of Commerce (July 25, 2013), available at

http://ftc.gov/speeches/ohlhausen/130725section5speech.pdf.
4

Enforcement. This is the primary tool used by BC in pursuit of its competition mission. 

BC pursues its merger and conduct enforcement actions either in federal court or through an 

internal administrative litigation process.9

Competition policy research and development (R&D). Through the use of its unique 

research tools, including its authority to conduct studies under Section 6(b) of the FTC Act,10 the 

FTC advances its competition mission by conducting policy R&D. This is done through 

information gathering and report writing, holding conferences and workshops on important 

competition issues, and academic-style research, among other means.

11

Competition advocacy. The FTC – principally through its Office of Policy Planning – 

issues advocacy filings to state and federal policymakers, addressing the competition 

implications of proposed laws and regulations. The agency – through its Office of General 

Counsel – also files amicus briefs with federal and state courts, addressing various points on the 

proper implementation of the antitrust laws.12

Consumer and business education. BC occasionally produces education materials to help 

consumers and businesses understand the competition laws and the benefits of competition 

generally and with respect to specific industries.13

 9 For a discussion of the FTC’s enforcement program, see WILLIAM E. KOVACIC, CHAIRMAN, FED. TRADE COMM’N,

THE FEDERAL TRADE COMMISSION AT 100: INTO OUR 2ND CENTURY, THE CONTINUING PURSUIT OF BETTER 

PRACTICES 112-20 (Jan. 2009) [hereinafter FTC AT 100 REPORT], available at http://www.ftc.gov/reports/federaltrade-commission-100-our-second-century.

10 15 U.S.C. § 46(b).

11 For a discussion of the FTC’s policy R&D program, see FTC AT 100 REPORT, supra note 9, at 91-109.

12 For a discussion of the FTC’s competition advocacy program, as well as the benefits of such advocacy more 

generally, see Maureen K. Ohlhausen, An Ounce of Antitrust Prevention Is Worth A Pound of Consumer Welfare: 

The Importance of Competition Advocacy and Premerger Notification, Remarks at the Fiscalia Nacional 

Economica’s Eleventh Annual Competition Day, at 2-15 (Nov. 5, 2013), available at http://www.ftc.gov/publicstatements/2013/11/ounce-antitrust-prevention-worth-pound-consumer-welfare-importance-0.

13 See, e.g., Fed. Trade Comm’n, Competition Counts, available at http://www.ftc.gov/tips-advice/competitionguidance/competition-counts.
5

B. Authority and Tools Utilized in Pursuit of the Consumer Protection Mission

The FTC’s consumer protection mission is executed principally by the Bureau of 

Consumer Protection (BCP), which enforces the “unfair or deceptive acts or practices” prong of 

Section 5 of the FTC Act.14 For each of the two types of cases under this prong – unfairness and 

deception – the FTC has issued a policy statement laying out the factors the agency will consider 

in bringing consumer protection enforcement actions.

15

In addition to Section 5, the FTC enforces several federal statutes in the consumer 

protection area, including, among others, the Truth-in-Lending Act, the Fair Credit Reporting 

Act, the Do-Not-Call Implementation Act of 2003, the Children’s Online Privacy Protection Act, 

the Fair and Accurate Credit Transactions Act of 2003, and the Controlling the Assault of NonSolicited Pornography and Marketing Act of 2003.16 These laws prohibit specifically defined 

trade practices and generally specify that violations are to be treated as if they were “unfair or 

deceptive acts or practices” under Section 5 of the FTC Act.

In pursuing its consumer protection mandate, the FTC largely uses the same tools that it

uses on the competition side, including law enforcement, policy research and development, and 

advocacy. BCP, however, typically relies more heavily on workshops and reports than BC in the 

policy R&D area.

17 In addition, BCP expends significant efforts in the consumer and business 

 14 Section 5 of the FTC Act provides in relevant part that “unfair or deceptive acts or practices in or affecting 

commerce[] are hereby declared unlawful.” 15 U.S.C. § 45(a)(1).

15 See Fed. Trade Comm’n, Policy Statement on Unfairness, appended to Int’l Harvester Co., 104 F.T.C. 949, 1070 

(1984) (codified at 15 U.S.C. § 45(n)), available at http://www.ftc.gov/public-statements/1980/12/ftc-policystatement-unfairness (defining a practice as unfair if it is likely to cause substantial consumer injury that is not 

reasonably avoidable by consumers themselves and not outweighed by countervailing benefits); Fed. Trade 

Comm’n, Policy Statement on Deception, appended to Cliffdale Assocs., 103 F.T.C. 110, 174 (1984), available at

http://www.ftc.gov/public-statements/1983/10/ftc-policy-statement-deception (defining a practice as deceptive if it 

is likely to mislead consumers acting reasonably in the circumstances to their material detriment).

16 A summary of the various statutes enforced by the FTC is available at http://www.ftc.gov/enforcement/statutes.

17 A list of upcoming and past Commission workshops and other events is available at http://www.ftc.gov/newsevents/events-calendar/all.
6

education areas, regularly creating materials aimed at assisting consumers in protecting 

themselves from various fraudulent business practices and helping businesses comply with the 

FTC Act and the several consumer protection statutes enforced by the FTC.18 Finally, the 

agency engages in rulemaking under both the FTC Act and several federal consumer protection 

statutes, issuing and enforcing several trade regulation rules aimed at remedying unfair or 

deceptive acts or practices on an industry-wide basis.19

III. Benefits of Housing Competition and Consumer Protection Missions in a Single 

Agency

Although the FTC’s competition and consumer protection missions focus on different 

types of conduct, they share the same overall goal: that consumers obtain truthful information 

about products and services that they can then use to make purchase decisions in a competitive 

marketplace. That competition and consumer protection are complementary areas is almost a 

truism at this point.20

As former FTC Chairman Timothy Muris has argued, “The policies that we traditionally 

identify separately as ‘antitrust’ and ‘consumer protection’ serve the common aim of improving 

consumer welfare and naturally complement each other.”21 In other words, “well-conceived 

 18 BCP’s consumer education materials are available at http://www.consumer.ftc.gov/, while its business education 

materials are available at http://business.ftc.gov/.

19 For a discussion of the FTC’s rulemaking on the consumer protection side, see FTC AT 100 REPORT, supra note 9, 

at 124-27.

20 See, e.g., OECD Policy Roundtable, The Interface between Competition and Consumer Policies, Background 

Note, at 17 (2008) [hereinafter OECD Policy Roundtable], available at

http://www.oecd.org/regreform/sectors/40898016.pdf (“That consumer protection policy and competition policy are 

largely interdependent instruments of economic policy, both aimed at serving a common purpose of enhancing the 

efficiency with which markets work, has been stated on many occasions and is widely accepted.”).

21 Timothy J. Muris, FTC Chairman, The Interface of Competition and Consumer Protection, Remarks before the 

Fordham Corporate Law Institute’s Twenty-Ninth Annual Conference on International Antitrust Law and Policy, at 

3 (Oct. 31, 2002), available at http://www.ftc.gov/sites/default/files/documents/public_statements/interfacecompetition-and-consumer-protection/021031fordham.pdf.
7

competition policy and consumer protection policy take complementary paths to the destination 

of promoting consumer welfare.”22 

Another way to think of the relationship between the two missions is that they both deal 

with market distortions and both can be analyzed in economic terms. As former Commissioner 

Thomas Leary has explained, antitrust violations distort the supply side because they restrict 

supply and elevate prices, while consumer protection violations distort the demand side of the 

market because they create the impression that a product or service is worth more than it really 

is.

23 In fact, economic analysis ought to play a significant, if not central, role in pursuing both 

missions.

The complementary nature of these two disciplines inevitably leads to several benefits to 

housing competition and consumer protection in a single enforcement and policymaking agency.

A. Learning from One Mission Informs and Improves Efforts in the Other

The most significant benefit of maintaining a dual mission is the positive reinforcement 

of each mission provided by the other. In its submission to the 2008 OECD Policy Roundtable 

on the interface of competition and consumer protection policies, the FTC explained that it “has 

found that enforcing both antitrust and consumer protection laws reinforces the consumer 

welfare orientation that it brings to accomplishing both of its missions.”24 As former Chairman 

 22 Id. at 5; see also Deborah Platt Majoras, FTC Chairman, Recent Actions at the Federal Trade Commission, 

Remarks before the Dallas Bar Association Antitrust and Trade Regulation Section, at 1 (Jan. 18, 2005), available at

http://www.ftc.gov/sites/default/files/documents/public_statements/recent-actions-federal-tradecommission/050126recentactions.pdf (arguing that the two missions focus, albeit with slightly different sets of tools, 

on the common goals of promoting efficiency and preventing consumer harm).

23 See Thomas B. Leary, Competition Law and Consumer Protection Law: Two Wings of the Same House, 72 

ANTITRUST L.J. 1147, 1147-48 (2005). See also Neil W. Averitt & Robert H. Lande, Consumer Sovereignty: A 

Unified Theory of Antitrust and Consumer Protection Law, 65 ANTITRUST L.J. 713, 714 (1997) (“[A]ntitrust 

violations (which impair the menu of options) stem from market failures in the general marketplace external to 

consumers, whereas consumer protection violations (which impair the individual’s ability to choose) flow from 

internal market failures that take place, in a sense, ‘inside the consumer’s head.’”).

24 OECD Policy Roundtable, supra note 22, at 231 (Contribution of the United States).
8

Muris has argued, “Competition theory that excludes consumer policy is not only shortsighted 

but, given the growing importance of consumer issues, can ultimately be self-defeating. 

Consumer policy that ignores its impact on competition can result in cures worse than the 

disease.”25

“The Commission’s capacity to meld expertise in economics, competition, and consumer 

protection is a conscious element of its institutional design and a major reason for its 

existence.”26 This melding of expertise informs and improves each of the FTC’s missions in 

several ways. The consumer protection function is improved by using our competition expertise 

in taking into account the impact of consumer protection enforcement and policy on markets. 

Conversely, our competition enforcement and competition advocacy are improved by using our 

consumer protection expertise to assess justifications for business conduct and proposed laws 

and regulations, respectively, that are grounded in terms of consumer protections.

1. Taking Account of Competition Implications in Consumer Protection Enforcement

First, understanding the dynamics of competitive markets, as well as the various benefits 

that competition provides, allows for more optimal consumer protection enforcement. On 

questions of both liability and remedy, competition principles can and do improve our consumer 

protection efforts. Below I highlight two significant areas of consumer protection enforcement –

advertising and privacy – which should be, and typically are, informed and improved by the 

FTC’s efforts in the competition area.

 25 Timothy J. Muris, Principles for a Successful Competition Agency, 72 U. CHI. L. REV. 165, 174 (2005).

26 FTC AT 100 REPORT, supra note 9, at v.
9

a. Theoretical Benefits

The FTC’s efforts to stop false and deceptive advertising are an important component of 

its consumer protection mission. Those efforts, however, can yield outcomes that are even better 

for consumers and consumer welfare when they reflect a greater understanding of, and 

appreciation for, competition.

To achieve the goals of both missions – that is, promoting efficiency, preventing 

consumer harm, and enhancing consumer welfare, without unduly burdening legitimate business 

conduct – the FTC must encourage and defend truthful, non-misleading commercial speech. We 

do this by protecting the marketplace and consumers from false commercial speech, but we must 

also help to foster an environment that provides consumers access to useful commercial 

information. As the FTC staff observed in a comment to the U.S. Food and Drug Administration 

(FDA) on certain First Amendment issues, “A flexible approach to commercial speech – one that 

encourages the dissemination of accurate speech and tailors restrictions to prevent speech that is 

false or misleading – will result in greater dissemination of valuable information with benefits 

for both consumers and competition. In contrast, the evidence indicates that broad restrictions on 

the dissemination of truthful commercial speech, while effectively stopping false or misleading 

information, can deprive consumers of useful information as well.”27

Beneficial marketplace information includes more than just pricing data. An FTC staff 

study on the effects of the dissemination of health information in the ready-to-eat cereal market 

is a real-world example of the consumer and competitive benefits of health claims for food 

 27 FTC Staff Comment before the Department of Health and Human Services, Food and Drug Administration, 

Docket No. 02N-0209, at 22 (Sept. 2002), available at

http://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staff-comment-food-and-drugadministration-concerning-first-amendment-issues/fdatextversion.pdf.
10

products.28 In 1984, the Kellogg Company began claiming on labels and in advertising that All 

Bran cereal was high in fiber and that diets high in fiber could reduce the risk of cancer, claims 

that the FDA had previously prohibited. In response, competitors soon made similar claims for 

their own high-fiber cereals, as well as introducing more of these products. Even more 

importantly, consumers began to make significant changes in their cereal choices, substantially 

increasing their consumption of high-fiber products. The dissemination of these fiber/cancer 

claims benefitted consumers by providing important dietary guidance and by expanding the 

range of high-fiber cereal choices available in the market.

Privacy enforcement, like most issues under the FTC’s consumer protection jurisdiction,

should also be viewed through a competition lens if we are to reach the best outcome for 

consumers. The FTC is uniquely positioned among federal agencies to balance consumer 

protection and competition in its analysis. For example, new privacy restrictions or overly broad 

enforcement actions may have an adverse effect on competition by favoring entrenched entities 

that already have consumer information over new entrants who need to obtain such information, 

or by encouraging industry consolidation for purposes of sharing data. As a competition agency, 

the FTC can and should be sensitive to these concerns as well.

b. Where the Agency Has Fallen Short in Practice

In some cases, however, the benefits of the FTC’s dual mission may not have been fully 

achieved in practice. In the two areas discussed above, advertising and privacy, recent 

enforcement actions and policy recommendations have called into question the extent of the 

learning across our two disciplines.

 28 See Pauline M. Ippolito & Alan D. Mathios, Health Claims in Advertising and Labeling: A Study of the Cereal 

Market (1989), available at http://www.ftc.gov/sites/default/files/documents/reports/health-claims-advertising-andlabeling-study-cereal-market/232187.pdf.
11

First, in advertising substantiation, I have seen the beginning of a problematic retreat 

from our historical enforcement policy in this area. The FTC’s Advertising Substantiation Policy 

Statement29 dates back to 1984, and follows the doctrine first announced in the Commission’s 

1972 decision in Pfizer, Inc.30 The statement sets forth the requirement that advertisers must 

have a reasonable basis for making objective claims before the claims are disseminated.31 

Additionally, advertisers must possess at least the level of substantiation expressly or impliedly 

claimed in the ad; thus, if an ad makes an express claim, such as “tests prove,” “doctors 

recommend,” or “studies show,” the substantiation must, at a minimum, reflect that standard.32 

This policy statement has stood the test of time and proved to be an invaluable tool to the agency 

in assessing advertising claims. Equally important, it has provided guidance to industry on the 

types of truthful, non-deceptive claims that can be made for products or services.

One of the goals of the Pfizer analysis is to balance the value of greater certainty of 

information about a product’s claimed attributes with the risks of both the product itself and the 

suppression of potentially useful information about it.33 Under such an analysis, the burden for 

substantiation for health- or disease-related claims involving a safe product, such as a food, for 

example, should be lower because the risks to consumers from using the product are typically 

lower.

Recent Commission orders, however, seem to have adopted two random controlled trials 

(RCTs) as a standard requirement for health- and disease-related claims for a wide array of 

 29 Thompson Med. Co., Inc., 104 F.T.C. 648 appx. (1984) (FTC policy statement regarding advertising 

substantiation). 

30 Pfizer, Inc., 81 F.T.C. 23 (1972).

31 Thompson Med. Co., 104 F.T.C. at 839.

32 Id.

33 See id.
12

products. For example, in POM Wonderful LLC, the majority determined that claims that the 

product purports to “treat, prevent or reduce the risk of heart disease, prostate cancer, and 

[erectile dysfunction] must be substantiated with [at least two] RCTs.”34 The majority’s intent is 

for these studies to be a proxy for proof of causation; that is, they indicate that the product 

actually treats the disease.35 Further, in a number of recent settlements, the FTC has included the 

requirement of two RCTs in its consent orders.36

Requiring two RCTs may be appropriate in some circumstances where use of a product 

carries some significant risk, or where the costs of conducting RCTs may be relatively low, such 

as for weight loss or for other conditions whose development or amelioration can be observed 

over a short time period. My concern is that, given the expectation created by this series of 

orders that two RCTs will be required to substantiate any health- or disease-related claims for 

many relatively-safe products, it seems likely that producers may forgo making such claims 

about products, even if they may otherwise be adequately supported by non-RCT evidence. For 

example, millions of consumers follow the advice that potassium is especially important for 

pregnant women, and that eating a high-fiber, whole-grain diet is good for you. That is very 

helpful information, but it has not been proven at the two-RCT level of substantiation. If the 

 34 POM Wonderful LLC, Docket. No. 9344, 2013 WL 268926, at *35, 51 (F.T.C. Jan. 16, 2013).

35 Id. at *35-36 (“disease claims require proof of causation . . . and as demonstrated by the weight of expert 

testimony in this case, proof of causation requires RCTs”).

36 See, e.g., GeneLink, Inc., FTC File No. 112-3095, Decision and Order, at 4 (Jan. 15, 2014), available at

http://www.ftc.gov/sites/default/files/documents/cases/140107genelinkorder.pdf (agreement containing consent 

order) (where respondent claimed its nutritional supplements treated or mitigated diabetes, heart disease, arthritis, 

and insomnia, the Commission required “at least two adequate and well-controlled human clinical studies . . . 

conducted by different researchers, independently of each other, that conform to acceptable designs and protocols 

and whose results, when considered in light of the entire body of relevant and reliable scientific evidence, are 

sufficient to substantiate that the representation is true” for respondent to claim its products were effective in the 

diagnosis, cure, mitigation, treatment, or prevention of any disease); L’Occitane, Inc., FTC File No. 122-3115, 

Decision and Order, at 3 (Jan. 7, 2014), available at

http://www.ftc.gov/sites/default/files/documents/cases/140107loccitaneorder.pdf (agreement containing consent 

order) (requiring two RCTs, but limiting the requirement to weight-loss claims).
13

Commission demands too high a level of substantiation in pursuit of certainty, it risks losing the 

benefits to consumers of having access to information about emerging areas of science and the 

corresponding pressure on firms to compete on the health features of their products.

A second area of concern is the competitive implications of recent policy proposals in the

privacy area. In the FTC’s 2012 Privacy Report, released shortly before I joined the 

Commission, some of my fellow Commissioners called for a new privacy law that would go 

beyond Section 5 of the FTC Act, but did not specify what such new legislation should look 

like.37 Nor did the Report identify any substantial harms that are occurring now that Section 5 

cannot already reach.

The Commission has consistently recognized the crucial role that truthful, nonmisleading advertising plays in fostering competition between current participants in the market 

and lowering entry barriers for new competitors. However, in its Privacy Report, the 

Commission did not address the possible competitive effects of its recommendations, including 

potentially reducing the flow of information in the marketplace (and services and products that 

depend on accessibility and use of such data), which may be an unintended (or intended, 

depending on the type of data) effect caused by compliance with new requirements.

Notably, the American Bar Association Section of Antitrust Law filed comments on the 

FTC’s Preliminary Privacy Report that highlighted the need to weigh carefully the benefits and 

costs associated with proposals to enhance privacy.38 The comments pointed out that although 

the Report emphasized that, to make meaningful choices, consumers need more information 

about how their data will be used, it did not assess the value consumers may reap from additional 

 37 See FED. TRADE COMM’N, PROTECTING CONSUMER PRIVACY IN AN ERA OF RAPID CHANGE: RECOMMENDATIONS 

FOR BUSINESSES AND POLICYMAKERS (2012), available at http://www.ftc.gov/os/2012/03/120326privacyreport.pdf.

38 See ABA Section of Antitrust Law, Comment on FTC’s Preliminary Privacy Report (Feb. 1, 2011), available at

http://www.ftc.gov/policy/public-comments/comment-00272-0.
14

uses of their information that facilitate competition. For example, consumers who choose not to 

allow the collection or sharing of broad categories of information may no longer be exposed to 

offers by competitors selling products or services that provide better value, pricing, or quality. In 

turn, these changes could have negative consequences not just for individual consumers 

exercising their choice over how their information is used following a particular transaction, but 

also on the market more generally.

Before seeking new privacy legislation, it is important to identify a gap in statutory 

authority or to identify a case of substantial consumer harm that the agency would like to 

address, but cannot, with our existing authority, especially given the array of financial, medical, 

and health and safety harms already reachable under our current FTC authority or other laws. 

Similarly, in evaluating a contemplated enforcement action in the privacy area, we ought to be 

fully cognizant of the competitive implications of such action. Otherwise, it is difficult to tell 

whether the additional privacy protection or enforcement action is necessary or will, on balance, 

make consumers worse off. Information sharing has benefits for consumers such as reducing 

online fraud, improving products and services, and increasing competition in the market overall. 

A policy that limits the ability of advertisers to access and use information (whether collected 

directly from consumers, or indirectly through affiliates, different brands within the company, or 

from third parties) to reach target audiences may have unintended effects on consumers and the 

marketplace that any policymaker, particularly one with responsibility for consumer protection 

and competition, must carefully consider.39

 39 See also Jodie Z. Bernstein & David A. Zetoony, A “Golden” Example of How an Agency with Two Missions 

Can Work at Odds with Itself, 12 J. CONSUMER & COM. L. 170, 172-73 (2009) (arguing that the FTC’s guidance on 

the marketing of gold jewelry has resulted in a mistaken belief that manufacturers cannot truthfully and accurately 

market certain gold products, thus distorting the market for such products).
15

2. Assessing Consumer Protection Defenses in Competition Enforcement

The learning at the FTC also runs from the consumer protection mission to the 

competition mission. For example, our consumer protection efforts can be helpful in assessing 

defenses in competition matters where the justifications for anticompetitive conduct are couched 

in terms of protecting consumers from various potential harms. There are several historical 

examples of this benefit, largely concentrated in the health care area. The claimed justifications 

typically have involved concerns that consumers may be deceived by certain types of advertising

or concerns about adverse effects on consumers’ health.

In California Dental Association,

40 the FTC challenged an allegedly anticompetitive 

implementation of a dental association’s prohibition on “false or misleading” claims about prices 

or competence. The FTC determined that the association applied its advertising guidelines in a 

way that actually restricted truthful, non-deceptive advertising.41 In particular, the guidelines 

effectively precluded advertising that characterized a dentist’s fees as being low, reasonable, or 

affordable, as well as advertising of across-the-board discounts. Drawing on its expertise and 

experience in the area of deceptive advertising, the Commission rejected the association’s claims 

that its particular implementation of the rules was necessary to prevent deception of consumers.42 

The Commission concluded, among other things, that the association “effectively prohibited 

 40 121 F.T.C. 190, 284 (1996) (Commission opinion). Although the Ninth Circuit upheld the Commission opinion, 

the Supreme Court vacated the Ninth Circuit decision, finding that the court’s quick-look review of the association’s 

advertising rules was too abbreviated under the rule of reason. See California Dental Ass’n v. FTC, 526 U.S. 756 

(1999).

41 121 F.T.C. at 333. 

42 Id. at 316-20.
16

across-the-board discount offers, whether truthful or not. No purported policy of preventing 

deception can justify that approach.”43

In American Medical Association (AMA),

44 the FTC charged the nation’s largest medical 

association of engaging in unfair methods of competition by enacting and enforcing a code of 

ethics that prevented its members from soliciting business, by advertising or otherwise, engaging 

in price competition, and otherwise competing among each other. The AMA cited, among other 

things, concerns about false and deceptive advertising to justify its ban on physician advertising. 

While acknowledging such concerns, the Commission found that “the record describes several 

instances in which a disdain for competition, not false or deceptive advertising, appears to be the 

sole motivation for suppressing promotional activities.”45 The Commission further disagreed 

with the AMA’s apparent “belief that the best way to interdict false and deceptive advertising 

and overreaching by physicians is to proscribe practically the full spectrum of advertising and 

solicitation activities.”46 The AMA’s restrictions on advertising and solicitation thus 

unreasonably impeded competition, according to the Commission.47

In Indiana Federation of Dentists,

48 the FTC addressed a collective refusal by an 

association of dentists to provide patient x-rays requested by insurance companies that wanted to 

 43 Id. at 317. See also K.J. Cseres, Integrate or Separate: Institutional Design for the Enforcement of Competition 

Law and Consumer Law, at 31 (Amsterdam Centre for European Law and Governance Working Paper Series 2013-

01, 2013), available at http://acelg.uva.nl/publications/working-papers/acelg-working-papers-2013.html

(“[R]estriction or ban on advertising in some of the markets for liberal professions remedied consumers’ 

asymmetrical information problems but restricted competition among service providers to the detriment of consumer

choice. . . . Being unaware of the complementarities results in overregulation or increased costs of enforcement.”).

44 94 F.T.C. 701, 980 (1979) (Commission opinion), enforced as modified sub nom. AMA v. FTC, 638 F.2d 443 (2d 

Cir. 1980), aff’d by an equally divided court, 455 U.S. 676 (1982). 

45 Id. at 1007.

46 Id. at 1009.

47 Id. at 1010.

48 101 F.T.C. 57, 65 (1983) (Commission opinion). Although the Seventh Circuit vacated the Commission opinion, 

the Supreme Court ultimately affirmed that opinion. See FTC v. Indiana Fed’n of Dentists, 476 U.S. 447 (1986).
17

evaluate the necessity of certain dental procedures. In finding a violation of the FTC Act for this 

concerted action, the Commission assessed but ultimately rejected the federation’s proffered 

justification for its collective refusal to provide x-rays: that it promoted higher quality care and 

more satisfied patients.49 More specifically, the federation argued that withholding x-rays from 

insurance companies would prevent them from reaching erroneous conclusions regarding the 

least expensive, adequate course of treatment for dental patients. Such erroneous conclusions, 

the federation argued, would cause insurance companies to deny claims for adequate treatment 

and thereby pressure patients, through their dentists, to choose less than adequate dental 

treatment.50 The FTC rejected this justification, noting that “[n]ot a single instance has been 

cited where any dentist agreed to provide less-than-adequate treatment because of the fear of an 

erroneous insurance determination.”51

Similarly, in North Carolina State Board of Dental Examiners,

52 the Commission 

recently rejected claimed health and safety concerns raised by a state dental board in defense of 

the collective actions of the board’s members to eliminate competition from non-dentists in the 

provision of teeth-whitening services. As the Commission explained, “Although several Board 

members identified a number of theoretical risks from non-dentist teeth whitening, none was able 

to cite to any clinical or empirical evidence validating any of these concerns.”53 The “lack of 

 49 101 F.T.C. at 80.

50 Id.

51 Id.

52 2011 WL 6229615, at *30-33 (F.T.C. Dec. 7, 2011) (Commission opinion). The Fourth Circuit upheld the 

Commission opinion, see North Carolina State Bd. of Dental Exam’rs v. FTC, 717 F.3d 359 (4th Cir. 2013), and it is 

currently on appeal before the U.S. Supreme Court.

53 2011 WL 6229615, at *33.
18

contemporaneous evidence that the challenged conduct was motivated by health or safety 

concerns” reinforced the Commission’s decision to reject the Board’s public safety defense.54

3. Assessing Consumer Protection Justifications for Proposed Laws or Regulations in 

our Competition Advocacy

The FTC’s consumer protection experience also informs the competition mission in our 

pursuit of competition advocacy – that is, the program with which the agency comments on the 

potential for adverse competitive effects that may result from proposed laws or regulations. In 

many cases, such laws or regulations are justified in terms of consumer protections that their 

proponents argue are necessary. In our advocacy comments, we routinely argue that, while the 

policymakers may have legitimate consumer protection concerns, the laws or regulations under 

consideration sweep much more broadly than necessary to effectuate any legitimate consumer 

protection measures. Following are examples of such advocacy.

Attorney Advertising. Based on our experience in pursuing unfair or deceptive 

advertising, the FTC has filed several advocacy comments with state legislators and amicus 

briefs with state courts addressing the adverse impact on competition for legal services that can 

result from unnecessary restrictions on the ability of attorneys to advertise their services.55 In 

these advocacies, the Commission and its staff have taken the position that, while unfair or 

deceptive advertising by lawyers should be prohibited, consumers do not benefit from the 

imposition of overly broad restrictions that prevent the communication of truthful and non-

 54 Id.

55 See, e.g., FTC Staff Letter to the Supreme Court of Tennessee Concerning Proposed Amendments to the 

Tennessee Rules of Professional Conduct Relating to Attorney Advertising (Jan. 2013), available at

http://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staff-letter-supreme-court-tennesseeconcerning-proposed-amendments-tennessee-rules-professional/130125tennesseadvertisingletter.pdf; Brief of the 

Fed. Trade Comm’n as Amicus Curiae, In the Matter of the Petition for Review of Committee on Attorney 

Advertising Opinion 39, Docket No. 60,003 (N.J. May 8, 2007), available at

http://www.ftc.gov/sites/default/files/documents/amicus_briefs/re-petition-review-committee-attorney-advertisingopinion-39/v070003opinion39.pdf.
19

misleading information that some consumers value. Rather, these restrictions are likely to inhibit 

competition, frustrate informed consumer choice, and potentially lead to higher prices and 

decreased scope of, or access to, legal services.

Funeral Caskets. Based on our experience in promulgating and enforcing the Funeral 

Industry Practices Rule (Funeral Rule)56 – a consumer protection rule aimed at deterring 

deceptive or unfair practices – the FTC and its staff have filed several advocacy comments with 

state legislators and amicus briefs with federal courts as part of our efforts to increase 

competition in the area of funeral products and services.57 For example, FTC advocacies have 

opposed laws that prohibit persons other than licensed funeral directors from selling caskets used 

in burials on the grounds that competition from independent casket vendors can provide 

consumers with more choices and lower prices and that such prohibitions are inconsistent with 

the Funeral Rule’s objectives of protecting consumers by facilitating informed consumer choice 

and promoting competition.

58

Our competition advocacy is particularly effective when we are able to combine our 

consumer protection expertise with data and information developed through our unique research 

tools.

 56 47 Fed. Reg. 42260 (1982). Among other things, the Funeral Industry Practices Rule mandates that, at the outset 

of discussions on funeral arrangements, funeral providers disclose itemized prices for funeral goods and services to 

provide consumers the information they need to comparison shop for such goods and services.

57 See, e.g., FTC Staff Comment to the Hon. Joanne C. Benson Concerning Maryland H.B. 795 Regarding Corporate 

Ownership of Funeral Homes (Apr. 2004), available at

http://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staff-comment-honorable-joannec.benson-concerning-maryland-h.b.795-regarding-corporate-ownership-funeral-homes/0404mdfuneralhomes.pdf.

58 See, e.g., Amicus Curiae Brief on Behalf of the U.S. Fed. Trade Comm’n at 9-16, St. Joseph Abbey v. Castille, 

No. 11-30756 (5th Cir. Dec. 16, 2011), available at

http://www.ftc.gov/sites/default/files/documents/amicus_briefs/st.joseph-abbey-et-al.v.castille-etal./111216stjosephamicusbrief.pdf.
20

Optometry. The FTC has vast consumer protection experience in the area of optical 

goods, where it enforces the so-called Eyeglass Rule59 and the Contact Lens Rule,

60 which 

require, among other things, the portability of eyeglass and contact lens prescriptions, 

respectively. In addition, FTC staff issued a report in 2004 on barriers to e-commerce in the 

contact lens area.61 Based on our consumer protection experience and the findings in the 2004 

report, the FTC has filed several advocacy comments with state legislators addressing 

restrictions on the online sale of contact lenses.62 Those comments have argued, among other 

things, that the costs of additional licensing and registration restrictions imposed on out-of-state 

and Internet vendors by some proposed regulations do not appear to be justified by 

countervailing consumer protection benefits, particularly because existing federal and state 

regulatory requirements already address the primary health and safety concerns at issue.63

Mortgage Disclosures. The FTC, including in particular its Bureau of Economics, also 

has conducted research in the area of consumer disclosures in the context of home mortgages.64 

This research served as the basis for an advocacy the FTC submitted to another federal agency, 

the Department of Housing and Urban Development (HUD) in 2008, addressing a proposed rule

 59 Ophthalmic Practices Rules, 16 C.F.R. § 456.

60 16 C.F.R. § 315.

61 FED. TRADE COMM’N STAFF, POSSIBLE BARRIERS TO E-COMMERCE: CONTACT LENSES (Mar. 2004), available at

http://www.ftc.gov/policy/policy-actions/advocacy-filings/2004/03/possible-anticompetitive-barriers-e-commercecontact.

62 See, e.g., FTC Staff Comment Before the North Carolina State Board of Opticians Concerning Proposed 

Regulations for Optical Goods and Optical Goods Businesses (Jan. 2011), available at

http://www.ftc.gov/policy/policy-actions/advocacy-filings/2011/01/ftc-staff-comment-north-carolina-state-board.

63 See, e.g., id. at 15-16.

64 See, e.g., FTC, BUREAU OF ECONOMICS STAFF REPORT, JAMES M. LACKO & JANIS K. PAPPALARDO, IMPROVING 

CONSUMER MORTGAGE DISCLOSURES: AN EMPIRICAL ASSESSMENT OF CURRENT AND PROTOTYPE DISCLOSURE 

FORMS (2007), available at http://www.ftc.gov/reports/improving-consumer-mortgage-disclosures-empiricalassessment-current-prototype-disclosure; FTC, BUREAU OF ECONOMICS STAFF REPORT, JAMES M. LACKO & JANIS 

K. PAPPALARDO, THE EFFECT OF MORTGAGE BROKER COMPENSATION DISCLOSURES ON CONSUMERS AND 

COMPETITION: A CONTROLLED EXPERIMENT (2004), available at http://www.ftc.gov/reports/effect-mortgage-brokercompensation-disclosures-consumers-competition-controlled-experiment.
21

involving mortgage settlement disclosures.65 Although the advocacy expressed support for 

HUD’s goals of improving consumer understanding of the cost and terms of mortgage loans and 

making mortgage shopping easier, it also expressed concerns that requiring the disclosure of 

compensation received by certain loan originators (but not others) may have adverse effects on 

market efficiency and competition. In other words, focusing the consumers’ attention on the

compensation received by mortgage originators, rather than on the actual costs paid by 

consumers, might distort consumer choice away from providers that often charge the lowest 

prices, leading to less efficient, rather than more efficient, market outcomes.66

B. Other Potential Benefits Flowing from a Dual Mission

In addition to the benefits discussed above, a dual mission is likely to yield several 

additional gains in agency performance. First, with a dual mission, an agency may benefit from 

exposure to specific markets and industries in one mission that the agency subsequently faces in 

the other mission.

67 That market-specific learning can be beneficial in assessing dynamics such 

as the operation of anticompetitive effects or consumer reactions to information asymmetries in 

the marketplace.

Second, having a dual mission may provide an agency with the ability to more effectively 

address industry-wide issues that implicate both competition and consumer protection 

 65 See Comments of the Staff of the Bureau of Consumer Protection, the Bureau of Economics, and the Office of 

Policy Planning of the Federal Trade Commission before the U.S. Department of Housing and Urban Development, 

in the Matter of Request for Comment on Proposed Amendments to the Regulations Implementing the Real Estate 

Settlement Procedures Act, Docket NO. FR-5180-P-01 (June 11, 2008), available at

http://www.ftc.gov/policy/policy-actions/advocacy-filings/2008/06/ftc-staff-comment-department-housing-andurban.

66 Id. at 19-20.

67 See, e.g., OECD Policy Roundtable, supra note 22, at 31-32.
22

concerns.

68 This can be useful in both determining liability for a competition or consumer 

protection violation and fashioning an appropriate and effective remedy.

Third, for a dual-mission agency, there may be synergies in gaining political support and 

buy-in from other stakeholders for each mission. That is, having both missions in a single 

agency may improve public accountability and support for both missions.69

Fourth, a dual mission likely yields administrative efficiency, including economies of 

scope in the monitoring, developing, and sharing of expertise across the two disciplines,70 as 

well as savings from the shared use of back-office and other functions, such as the general 

counsel’s office, human resources, and other agency-wide support departments.

IV. Limits to Integration of Competition and Consumer Protection Missions

Notwithstanding the many benefits that can be obtained from integration of the two 

complementary disciplines of competition and consumer protection, there are limits to such 

integration. This section discusses both substantive and non-substantive downsides that may 

result from this type of integration.

 68 See, e.g., Cseres, supra note 42, at 32 (discussing agencies’ experiences in reviewing market failures “with a 

combined policy look”); William E. Kovacic & David A. Hyman, Competition Agencies with Complex Policy 

Portfolios: Divide or Conquer?, at 38 (GW Law Faculty Publications & Other Works, Paper 631, 2013), available 

at http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1779&context=faculty_publications (“A unity of 

functions might put an agency in a better position to identify the source of market failures more accurately and 

proscribe superior cures that involve an optimal mix of regulatory strategies.”).

69 See, e.g., Cseres, supra note 42, at 35; OECD Policy Roundtable, supra note 22, at 33; Spencer Weber Waller, In 

Search of Economic Justice: Considering Competition and Consumer Protection Law, 36 LOY. U. CHI. L.J. 631, 638 

(2005) (“[M]ost importantly, the opportunity exists to engage the public and articulate the benefits of both bodies of 

law in common sense terms to rally support for a more competitive and consumer friendly economy.”).

70 See, e.g., Cseres, supra note 42, at 33.
23

A. Inappropriate Injection of Consumer Protection Considerations into Competition 

Analysis

A prime example of the hazards of inappropriate integration is reflected in the recent 

push to take into account privacy considerations in competition analysis. Some have proposed 

that we expand the competition laws to address possible impacts on individual privacy.71 For 

instance, they may argue that the FTC should evaluate a merger of Internet advertising firms in 

part by considering whether combining the companies’ customer databases could change the 

merged companies’ incentives to violate consumer privacy.72 This would be a mistake for 

several reasons and could risk weakening our competition regime for almost no meaningful gain. 

Instead, the right approach to privacy recognizes that competition law and consumer protection 

law are complements, not substitutes.

The evolution of these two distinct but complementary bodies of law reflects a consensus 

in the United States about the limits of our competition laws. They are not designed to address 

conduct that may be unjust or immoral, unless it also happens to harm competition. American 

competition law enforcement objectives are and for a long time have been primarily focused on 

economic efficiency, whereas its consumer protection goals are and have always been focused on 

harm to individuals. Introducing non-competition factors like privacy into competition analysis 

 71 See, e.g., Pamela Jones Harbour, Dissenting Statement, Google/DoubleClick, FTC File No. 071-0170, at 10

(2007), available at http://www.ftc.gov/public-statements/2007/12/dissenting-statement-commissioner-harbourmatter-googledoubleclick (“I have considered (and continue to consider) various theories that might make privacy 

‘cognizable’ under the antitrust laws, and thus would have enabled the Commission to reach the privacy issues as 

part of its antitrust analysis of the transaction.”).

72 See, e.g., EPIC, Complaint and Request for Injunction, Google/DoubleClick, at 10 (Apr. 20, 2007), available at

http://epic.org/privacy/ftc/google/epic_complaint.pdf. (“Google’s proposed acquisition of DoubleClick will give one 

company access to more information about the Internet activities of consumers than any other company in the world. 

Moreover, Google will operate with virtually no legal obligation to ensure the privacy, security, and accuracy of the 

personal data that it collects. At this time, there is simply no consumer privacy issue more pressing for the 

Commission to consider than Google’s plan to combine the search histories and web site visit records of Internet 

users.”).
24

would allow the FTC and other competition enforcers to embark on consideration of social 

mores and political issues without any meaningful limiting principles.

The FTC has already faced the question of whether it can use privacy concerns unrelated 

to competitive concerns as a factor in its competition analysis. In 2007, the Commission 

reviewed Google’s acquisition of DoubleClick and considered whether privacy could be a factor 

in a merger analysis. Several groups submitted comments to the Commission arguing that the 

transaction should be blocked because “the combination of [the parties’] respective data sets of 

consumer information could be exploited in a way that threatens consumers’ privacy.”73 The 

Commission noted that, although it takes consumer privacy issues seriously, it would not act on 

these grounds. The majority statement concluded that “the sole purpose of federal antitrust 

review of mergers and acquisitions is to identify and remedy transactions that harm competition. 

Not only does the Commission lack legal authority to require conditions to this merger that do 

not relate to antitrust, regulating the privacy requirements of just one company could pose a 

serious detriment to competition in this vast and rapidly evolving industry.”74 Thus, the 

Commission allowed the transaction to proceed without challenge.

This is not to say that privacy and competition can never intersect. In its consideration of 

the Google/DoubleClick merger, the FTC left the door open to examine privacy to the extent that 

it is a non-price attribute of competition. Where privacy, or the treatment of consumer data, 

represents a means of competition, it should be included in a competition analysis. While there 

appeared to be no evidence of a privacy dimension of competition in the Google/DoubleClick 

transaction, we are seeing more examples of that type of competition in the market today.

 73 Statement of the Federal Trade Commission Concerning Google/DoubleClick, FTC File No. 071-0170, at 2 (Dec. 

20, 2007), available at http://www.ftc.gov/public-statements/2007/12/statement-federal-trade-commissionconcerning-googledoubleclick.

74 Id.
25

B. Blurring the Lines between Competition and Consumer Protection

In some cases, the FTC has blurred the line between competition and consumer 

protection – with respect to both the alleged violation and the remedy sought by the agency – to 

the potential detriment of effective and transparent enforcement in both areas. This blurring of 

the lines, while in some sense an integration of competition and consumer protection principles, 

is more accurately viewed as an improper and unhelpful muddying of the two disciplines.

In the FTC’s complaint against Negotiated Data Solutions LLC (N-Data), filed in 

connection with the settlement of that matter, the FTC alleged that N-Data had violated both the 

competition and the consumer protection prongs of Section 5 of the FTC Act by reneging on a 

commitment to license intellectual property.

75 Then-Commissioner Kovacic dissented from the 

N-Data consent in part due to his concerns that the Commission neither explained why it 

endorsed separate unfair method of competition and unfair act or practice claims nor integrated 

these two theories of liability.76 Kovacic further explained, “More generally, it seems that the 

Commission’s view of unfairness would permit the FTC in the future to plead all of what would 

have been seen as competition-related infringements as constituting unfair acts or practices.”77

I raised similar concerns in dissenting from the Commission’s consent agreement with 

Google Inc. and its Motorola Mobility LLC subsidiary settling charges that the respondents 

violated Section 5 of the FTC Act by pursuing injunctions against allegedly willing licensees of 

 75 See Negotiated Data Solutions LLC, FTC File No. 051-0094, Complaint ¶¶ 38-39 (Jan. 23, 2008), available at

http://www.ftc.gov/sites/default/files/documents/cases/2008/01/080122complaint.pdf.

76 See Negotiated Data Solutions LLC, FTC File No. 051-0094, Dissenting Statement of Commissioner William E. 

Kovacic, at 2-3 (Jan. 23, 2008), available at

http://www.ftc.gov/sites/default/files/documents/cases/2008/01/080122kovacic.pdf.

77 Id. at 3. See also Jonathan E. Nuechterlein, Antitrust Oversight of an Antitrust Dispute: An Institutional 

Perspective on the Net Neutrality Debate, 7 J. TELECOMM. & HIGH TECH. L. 19, 65 n.138 (2009) (“The FTC has 

been occasionally accused of blurring the lines between antitrust and consumer-protection principles to create 

hybrid, interventionist policies with no solid grounding in either antitrust law or consumer protection norms--a 

concern now heightened by the FTC's broad construction of its Section 5 authority in the N-Data case.”).
26

standard-essential patents encumbered by commitments to license on reasonable and nondiscriminatory terms.78 In Google/Motorola Mobility, the Commission alleged that the 

respondents’ conduct was both an unfair method of competition and an unfair act or practice.79 

One of the several concerns I raised in my dissent was that the inclusion of the unfairness count 

would “sow[] additional seeds of confusion” as to a finding of liability in the area of standardessential patents and even the statutory basis of such liability.80

A few years earlier, in 2009, the FTC filed a complaint against Intel Corporation alleging 

unfair methods of competition, unfairness, and deception violations resulting from a course of 

conduct by Intel that included allegedly anticompetitive discounting arrangements with original 

equipment manufacturers and certain misrepresentations concerning its products.81 In addition 

to raising the same concerns about alleging both competition and consumer protection violations 

for the same conduct that the N-Data case raised,82 the contemplated relief identified in the Intel

complaint also potentially blurred the lines between competition and consumer protection 

remedies. That relief included a requirement that Intel “correct the deceptive and misleading 

 78 See Motorola Mobility LLC and Google Inc., FTC File No. 121-0120, Dissenting Statement of Commissioner 

Maureen K. Ohlhausen, at 1-2, 4 (Jan. 3, 2013), available at

http://www.ftc.gov/sites/default/files/documents/cases/2013/01/130103googlemotorolaohlhausenstmt.pdf.

79 See Motorola Mobility LLC and Google Inc., FTC File No. 121-0120, Complaint ¶¶ 31-32 (Jan. 3, 2013), 

available at http://www.ftc.gov/sites/default/files/documents/cases/2013/01/130103googlemotorolacmpt.pdf. In 

finalizing the Decision and Order in this matter, however, the Commission removed the unfair act or practice count 

from the complaint. See id., Complaint, at 6 (July 24, 2013), available at

http://www.ftc.gov/sites/default/files/documents/cases/2013/07/130724googlemotorolacmpt.pdf.

80 Ohlhausen, supra note 78, at 2.

81 See Intel Corp., FTC Docket No. C-9341, Complaint (Dec. 16, 2009), available at

http://www.ftc.gov/sites/default/files/documents/cases/091216intelcmpt.pdf.

82 The FTC’s complaint in Intel included 96 paragraphs describing Intel’s alleged conduct and then identified all 96 

as constituting unfair methods of competition, as well as unfair acts or practices. Id. at 17-18. In addition, the 

complaint averred that the conduct described in paragraphs 56 through 96 also constituted deceptive acts or 

practices. Id. at 17. See also Allan L. Shampine, The Role of Behavioral Economics in Antitrust Analysis, 27 

ANTITRUST 65, 65-66 (Spring 2013) (“The FTC has recently been in the business of blurring the lines between 

antitrust and consumer protection. . . . [T]he FTC noted that its 2010 settlement with Intel went beyond previous 

settlements in a number of ways, including requiring greater disclosure of performance data about its own products 

and restrictions on deceptive statements about competitors' products.”).
27

statements and omissions it has made in the past.”83 As I explained in an April 2010 article,

requiring a company to engage in corrective advertising is a burdensome remedy that the FTC 

had previously used only sparingly and in unique circumstances, circumstances that did not 

appear to be found in the Intel matter.84 Although the Commission ultimately settled its case 

against Intel without imposing a corrective advertising requirement,85 the initially contemplated 

relief in this matter presented another example of the pitfalls of conflating competition and 

consumer protection principles.

C. Other Potential Downsides of Integration

In addition to the substantive concerns I have about the FTC’s integration of competition 

and consumer protection principles in particular cases, commentators have identified several 

other potential downsides to the integration of these two disciplines in a single agency.

86 One of 

those downsides is the potential for one mission to dominate the other, to the detriment of the 

latter.

87 Professor Kovacic provides a potential scenario of particular interest to the FTC – one 

that involves a sizeable imbalance in resource allocation across the competition and consumer 

protection missions at the agency. Kovacic asks: “If the FTC moved from a 55/45 split between 

consumer protection and competition to something like a 65/35 or 70/30 distribution, would the 

 83 Intel Complaint, supra note 81, at 22.

84 See Maureen K. Ohlhausen, The FTC Complaint against Intel Corporation: Implications for Consumer 

Protection, CPI ANTITRUST J. 3-4 (Apr. 2010).

85 In addition to blurring the lines between competition and consumer protection, the complaint and the consent in 

this matter failed to provide meaningful guidance on which alleged conduct violated Section 2 of the Sherman Act 

and which conduct violated Section 5 of the FTC Act.

86 Commentators also have identified various practical considerations that may hinder the successful integration of 

competition and consumer protection into a single agency. See, e.g., Simon Priddis, “Let Me Not to the Marriage of 

True Minds Admit Impediments”: Competition and Consumer Law in the UK, 21 ANTITRUST 89, 89 (Summer 2007) 

(“Notwithstanding the abstract merits of this integrated approach, practical impediments to success remain, not least 

since competition and consumer protection law arise from sharply contrasting policy perspectives, use different tools 

to achieve their respective objectives, and historically at least, have measured success in different ways.”).

87 See, e.g., Cseres, supra note 42, at 24.
28

wisdom of retaining a competition competence within the FTC, rather than moving the function 

entirely to the Antitrust Division of the Justice Department, come into question?”88 The FTC, or 

any other dual-mission agency, ought to keep this potential outcome in mind as it allocates 

resources across its two missions.

Another potential concern regarding the integration of competition and consumer 

protection raised by commentators is that such integration can lead to a lack of clarity of purpose 

at the agency, which can result in diminished support for the agency’s overall mission and 

efforts.89 This concern is greater where the disciplines that are integrated in a single agency are 

inconsistent in their ultimate goals and more in the nature of substitutes than complements.90 At 

the FTC, where competition and consumer protection largely are pursuing the same ultimate 

goal, this concern should not materialize. The agency, however, should always be mindful of the 

clarity of its mission and purpose.

 A third downside of integration identified by commentators is the potential for

“destructive rivalry” between the competing missions within an agency for prestige, headcount, 

and budgetary resources.

91 During my tenure at the FTC, the rivalry between the competition 

and consumer protection missions is much more accurately characterized as healthy than 

destructive. 

Thus, while the FTC ought to remain vigilant to ensure that these downsides to 

integration do not materialize within the agency, the FTC’s performance in the past twenty-five 

 88 Kovacic, supra note 68, at 48.

89 See, e.g., Cseres, supra note 42, at 24.

90 See, e.g., Kovacic, supra note 68, at 11, 18.

91 See, e.g., id. at 25.
29

or so years leads me to believe that it is unlikely to face these adverse consequences in

maintaining its dual mission.

V. Recommendations for Optimal Integration of the Two Missions at the FTC

A. Extent of Interaction between the Two Missions

Before making recommendations for a more optimal integration of the competition and 

consumer protection missions at the FTC, one must ask several questions about the current 

extent of integration between these missions. Are the competition and consumer protection 

personnel operating in two wings of the same house or in two distant silos?92 What mechanisms 

are in place to bridge the gaps between the Bureaus of Competition and Consumer Protection, 

other than the Commissioners themselves, who of course do not have the luxury of focusing on 

just one of the missions?

There are several such mechanisms available at the FTC for meaningful interaction 

across the missions. The Bureau of Economics and economic analysis more generally can and 

do serve as a bridge between the two bureaus. Both economics and economists ought to play 

major roles in the agency’s pursuit of each mission. Similarly, the FTC’s advocacy program, 

which is overseen by the Office of Policy Planning and which addresses proposed laws or 

regulations that implicate both competition and consumer protection issues, provides an 

opportunity for the two bureaus to work together toward a common goal: promoting sound 

competition and consumer protection policies. The Office of International Affairs, which 

integrated two previously separate competition and consumer protection offices and which 

pursues the important goal of international convergence around substantive norms and best 

 92 See, e.g., Paul A. Pautler, Consumer Protection Policies, Economics, and Interactions with Competition Policy, 4 

COMPETITION POL’Y INT’L 83, 91 n.23 (2008) (“Other than being inanimate, the winged house is not a bad analogy. 

The wings are largely separate, but they meet in a central area that often involves some form of regulation or legal 

complication (e.g., occupational regulation, standard-setting organizations, regulated industries, etc).”).
30

practices in each mission, provides another setting for the effective integration of the two 

missions.

B. Recommendations for Further Integration

To achieve a more optimal integration of competition and consumer protection at the 

FTC, I respectfully make the following recommendations for the agency to consider:

First, the integration of the missions, as well as the promotion of consumer welfare more 

generally, would benefit from increased involvement of the Bureau of Economics, and the 

economic analysis that the bureau provides, in the agency’s consumer protection analysis. This 

recommendation follows and reiterates former FTC Chairman Kovacic’s recommendation for the 

agency to pursue a “[d]eeper integration of economic analysis into the formulation of 

competition and consumer protection initiatives.”93 Based on what I have seen during my time 

as a Commissioner, although economic analysis is now firmly rooted in the competition mission, 

the agency would benefit from a more significant integration of economics into consumer 

protection matters. To the extent there are resource constraints mitigating such integration, I 

would recommend making this one of the agency’s top budgetary priorities.

Second, the integration of the missions would benefit from increased inter-bureau details, 

training, and workshops. Although the FTC should be alert to opportunities for the Bureaus of 

Competition and Consumer Protection to be involved in the same case – that is, in one that raises 

both competition and consumer protection issues – such cases do not arise very frequently. More 

importantly, as discussed above, the agency ought to be careful about seeing both sets of issues 

in a given case when they do not in fact present themselves.94 Increased exposure to the other 

 93 FTC AT 100 REPORT, supra note 26, at 179.

94 See also William MacLeod, The Interface between Competition and Consumer Policies, Contribution from BIAC, 

OECD Global Forum on Competition, at 3 (Feb. 13, 2008), available at
31

bureaus’ mandate, agenda, and enforcement and policy tools – particularly outside the context of 

specific cases, with their attendant time constraints – would be beneficial for each of the three 

bureaus. This type of interaction occurs occasionally, but not as much as it should.

Third, the integration of the missions at the FTC would benefit from increased Bureau of 

Competition input on proposed consumer protection guides and guidelines, as well as the 

periodic review of such guidance. To my knowledge, this happens infrequently, if ever. 

Providing the Bureau of Competition with an opportunity to do a competitive assessment of

contemplated consumer protection guidance should be a relatively easy and effective means for 

avoiding any potential adverse competitive effects from such guidance.95

Fourth, the integration of the two missions at the FTC would benefit from increased 

Bureau of Consumer Protection involvement in preparing consumer and business education 

materials on the competition side, where such materials are used much less frequently and where 

the issues are sometimes less intuitive than on the consumer protection side. The Bureau of 

Consumer Protection, through its Division of Consumer and Business Education, has significant 

expertise in preparing educational materials for use by consumers to make informed decisions 

and by businesses to comply with the various consumer protection laws, rules, and regulations. 

That expertise could be more frequently utilized on the competition side.

 http://www.oecd.org/daf/competition/prosecutionandlawenforcement/40080545.pdf (“Efforts to integrate 

competition and consumer protection laws and enforcement, however laudable in concept, should not become a 

pretext for intervention.”).

95 Cf. Lydia Parnes & Edward Holman, The Role of Competition in Analysing a Consumer Protection Remedy: 

Should Regulators Consider Competition Law in Urging a “Do Not Track” Solution?, 7 COMPETITION L. INT’L 72, 

75 (2011) (“A winning DNT solution should leverage competition by enabling and incentivising companies to 

compete on privacy, but the type of universal browser-based opt-out system proposed by regulators simply falls 

short. In the intersection between consumer protection and competition concerns, the well-known benefits of 

competition to consumer welfare should not be forgotten when formulating effective privacy regulations.”).
32

Finally, the integration of the FTC’s two missions would benefit from increased 

involvement by the Bureau of Consumer Protection in the primary activities pursued by the 

Office of Policy Planning: competition and consumer protection advocacy. To be sure, there 

exists already a fair amount of consumer protection involvement in such advocacy. However, 

the consumer protection mission, as well as the agency as a whole, would benefit from increased 

participation by the Bureau of Consumer Protection in both individual advocacy efforts and the 

strategic policy planning that influences the selection of advocacy targets.

VI. Conclusion

As we celebrate the FTC’s centennial, we can point to the dual competition-consumer 

protection mission as one of the defining institutional features of the agency. The benefits 

obtained from housing both missions within the FTC have been tangible and meaningful for U.S. 

consumers. Those benefits are not necessarily achieved or maximized in every matter pursued 

by the agency. Nor is the degree of integration of the two missions necessarily at an optimal 

level. However, as this article makes clear, there are steps the agency can take to remedy those 

shortcomings. Looking forward to the FTC’s next century, consumers would be best served by 

an agency that includes in its portfolio both competition and consumer protection mandates.