1

Oral Remarks of Commissioner Christine S. Wilson

Open Commission Meeting on July 21, 2021

Care Labeling Rule

Proposed Policy Statement on Repair Restrictions Imposed by Manufacturers and Sellers

Policy Statement on Prior Approval and Prior Notice Provisions in Merger Cases

Today the Commission held an open meeting on three agenda items. To facilitate 

transparency, I post my remarks from the meeting here.

I. Introductory Remarks 

Before voting on the first matter, I want to take a moment to talk generally about the 

process of these meetings. I found the comments from the public during our last open 

Commission meeting to be informative and thought-provoking, and I look forward to hearing 

from the public today. 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.

To reach conclusions about policy matters, the Commission should proceed in the 

manner that has served the agency well for decades. 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.1 Unfortunately, it appears that staff is being silenced internally, as well. Perhaps this is 

due to a view some have expressed that FTC staff is unimaginative and has failed to advance the 

Commission’s mission effectively for decades. 

I strongly disagree. I believe that FTC staff include some of the most talented lawyers in 

the competition and consumer protection bar. Staff are skilled at executing the agency’s mission 

in an exemplary manner, given clear direction regarding the Commission’s strategic and 

enforcement priorities. I saw this firsthand as Chief of Staff for Chairman Tim Muris, who 

brought to the Commission an aggressive agenda and worked constructively with staff to 

implement it. 

 1 Leah Nylen, et al. “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.
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During his tenure, staff brought the agency’s first privacy and data security cases against 

Microsoft2 and Eli Lilly,

3 deploying Section 5 of the FTC Act in new and innovative ways to 

address evolving technologies and emerging consumer harms. These matters launched the FTC’s 

privacy and data security program and laid the foundation for the protection of sensitive health 

and other information for years to come.4

In the competition arena, both the FTC and DOJ lost a string of hospital merger

challenges in the late 1990s. Chairman Muris created a cross-disciplinary hospital merger task 

force to conduct retrospectives to gauge the actual effects of the challenged mergers, and to 

revisit the agency’s approach to challenging these mergers in court.5 Economists and lawyers 

working together devised new ways to challenge these mergers. The result? Beginning with the 

Evanston6 case, the Commission has had only one ultimate loss in this sector in the ensuing 16 

years.

In addition, Chairman Muris solicited and applied the views of others – Commissioners 

and staff.

7 I am encouraged that Chair Khan worked with our office more collaboratively on 

some of today’s agenda items and urge her to continue the FTC’s long-standing tradition of 

bipartisan collaboration. Each Commissioner brings varied perspectives and policy preferences 

to this job that enable the body to consider issues in a far more comprehensive way than any one 

of us would or could on his or her own. FTC staff have similarly varied perspectives, 

professional experiences, and comparative advantages. While we may not always agree with 

each other or with staff, our analysis is deeper and richer because of staff’s recommendations and 

insights, particularly when our analyses diverge.

Our agency has come under attack from a variety of quarters in recent years. In the face 

of these attacks, we could be proud of our robust dialogue and thorough analysis at every stage 

of each matter and proceeding. Crushing internal dialogue diminishes the quality of our decision

making and gives our detractors more ammunition. Process matters, so let’s get it right.

 2 In the Matter of Microsoft Corporation, C-4069 (Dec. 24, 2002), https://www.ftc.gov/enforcement/casesproceedings/012-3240/microsoft-corporation-matter. 

3 In the Matter of Eli Lilly and Company, C-4-47 (May 10, 2002), https://www.ftc.gov/enforcement/casesproceedings/012-3214/eli-lilly-company-matter. 

4 Daniel J. Solove & Woodrow Hartzog, The FTC and the New Common Law of Privacy, 114 COLUMBIA L. REV. 

583 (2014). Solove and Woodrow explain that FTC settlements have created a common law of privacy. 

“[C]ompanies look to these agreements to guide their privacy practices. Thus, in practice FTC privacy jurisprudence 

has become the broadest most influential regulating force on information privacy in the United States – more so than 

nearly any privacy statute or any common law tort.” Id.

5 OVERVIEW OF MERGER RETROSPECTIVE PROGRAM IN THE BUREAU OF ECONOMICS, 

https://www.ftc.gov/policy/studies/merger-retrospectives/overview. 

6 Evanston Northwestern Healthcare Corp., F.T.C. No. 9315, 2007 WL 2286195 (Aug. 6, 2007).

7 In fact, during Chairman Muris’ tenure, dissenting votes were rare because he took the time to work closely with 

his colleagues and develop a bipartisan consensus on both enforcement and policy issues.
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II. Care Labeling Rule

The FTC’s Care Labeling Rule specifies the care instructions that can be placed on 

garment labels.8 There is no question this is useful information to consumers. What is less clear 

is whether a Rule is necessary to ensure that clothing manufacturers provide care instructions.9

Most European Union nations and Canada have voluntary care instruction systems and, 

according to the record, manufacturers in those markets voluntarily provide cleaning 

instructions.

10 Regulations, by nature, risk inhibiting innovation and stifling competition. The 

Care Labeling Rule provides a great example of these phenomena because the Rule is tied to 

specific care instructions and procedures and is woefully out of date. Industry associations have 

developed new types of care instructions for both existing and new fabrics that are not reflected 

in this Rule. In addition, the Rule references symbols that are generations out of date.11

Repeal of the Rule would resolve these accuracy issues and allow manufacturers and 

sellers the freedom to include new care procedures and perhaps novel methods of disclosing 

instructions to consumers.12 I am pleased that the Commission considered repeal. The majority 

 8 FED. TRADE COMM’N, Clothes Captioning: Complying with the Care Labeling Rule, https://www.ftc.gov/tipsadvice/business-center/guidance/clothes-captioning-complying-care-labeling-rule. 

9 See Trade Regulation Rule on Care Labeling of Textile Wearing Apparel and Certain Piece Goods: Supplemental 

notice of proposed rulemaking, 85 Fed. Reg. 44,485-86 (July 23, 2020), 

https://www.federalregister.gov/documents/2020/07/23/2020-13919/trade-regulation-rule-on-care-labeling-oftextile-wearing-apparel-and-certain-piece-goods (July 23, 2020) (following multiple periods of comments and a 

roundtable in March 2014 and finding “the record suggests that the Rule may not be necessary to ensure 

manufacturers provide care instructions, may have failed to keep up with a dynamic marketplace, and may 

negatively affect the development of new technologies and disclosures.”).

10 Id. at 44,491. The Commission’s Federal Register Notice proposing repeal of the Rule explained that care labeling 

is voluntary in Canada and most of Europe. See Roundtable Transcript at 175 (indicating that care labeling is 

voluntary in Europe and Canada) and Ginetex (384-83) (urging

the Commission to consider a voluntary approach); see also, Feltham, T. Martin, L. (2006, June)

“Apparel Care Labels: Understanding Consumers’ Use of Information,”

https://www.researchgate.net/publication/228295594_Apparel_Care_Labels_Understanding_Co

nsumers’_Use_of_Information (“Even though the care labeling (in Canada) is voluntary,

consumers see care labels on almost all garments purchased in Canada”); and “European

Commission DG Enterprise and Industry Study of the need and options for the harmonisation of

the labelling of textile and clothing products,” 24 January 2013, Final Report, Matrix Insight

Ltd., at 43-44, available at

ec.europa.eu/DocsRoom/documents/10480/attachments/1/translations/en/renditions/native.

11 Numerous comments filed in response to the Commission’s July 2020 Supplemental notice of proposed 

rulemaking urged the Commission to revise the Rule to allow the use of updated symbols. See, e.g., National 

Consumers League, Consumer Federation of America et al Comment, available at: 

https://www.regulations.gov/comment/FTC-2020-0058-0193; Retail Industry Leaders Association Comment, 

available at: https://www.regulations.gov/comment/FTC-2020-0058-0199; Footwear Distributors & Retailers of 

America (FDRA) Comment, available at: https://www.regulations.gov/comment/FTC-2020-0058-0214.

12 The Commission’s Federal Register Notice proposing repeal noted: “To the extent that current mandated labels 

may be imperfect or limited, a benefit of the Rule’s repeal would be to afford manufacturers and sellers the freedom 

to improve existing labels, to label new cleaning methods as they enter the market, and to use widely recognized 

care symbol systems without waiting for updates to the Rule.” Id. at 44,490. The Commission also explained that: 

“Repeal would also eliminate any possibility the Rule negatively affects market innovation. Over the course of the 

proceeding, some commenters suggested that the Rule might have had a negative impact on the adoption of new 
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of the comments did not support repeal; however, they also did not support maintaining the Rule 

in its current, outdated form. It is disappointing that the Commission votes today to terminate the 

proposed repeal but takes no immediate steps to update the Rule. If the Commission is going to 

maintain a Rule regulating an industry, we should ensure it is accurate. 

The Commission has a laudable practice of conducting regular reviews of our Rules and 

Guides on a ten-year schedule. The FTC website explains: “Since 1992, the FTC has conducted a 

regular, systematic review of all its rules and guides on a rotating basis. Rules and guides are 

critically important, but need to be reviewed periodically to ensure they are up-to-date, effective, 

and not overly burdensome.”13 We are not meeting our self-described obligations in our review 

of this Rule. This is notable because in other contexts the Commission has been meticulous in 

updating Rules to address changes.14

The inaccuracies in the Care Labeling Rule are not trivial.15 The failure of the FTC to 

acknowledge the existence of an emerging rival to dry cleaners known as wet cleaners likely has 

impacted competition in this industry.16 And, in today’s global economy, I do not understand 

why the Commission would maintain a Rule requiring symbols that do not align with 

international standards. 

 

cleaning technologies. For example, commenters and workshop participants explained that the Rule’s failure to 

address wetcleaning has placed professional wetcleaners at a competitive disadvantage and discouraged greater use 

of that technology.” Id. at 44,491.

13 RETROSPECTIVE REVIEW OF FTC RULES AND GUIDES, https://www.ftc.gov/enforcement/rules/retrospectivereview-ftc-rules-guides. 

14 For example, the Commission sought comments or made updates to the Energy Labeling four times in the past 

five years to conform to Department of Energy standards or to make other changes for accuracy. See 81 Fed. Reg. 

62861 (Sept. 12, 2016) (seeking comment on proposed amendments regarding portable air conditioners, ceiling fans, 

and electric water heaters); 84 Fed. Reg. 9261 (Mar. 14, 2019) (proposing amendments to organize the Rule’s 

product descriptions); 85 Fed. Reg. 20218 (Apr. 10, 2020) (seeking comment on proposed amendments regarding 

central and portable air conditioners); 86 Fed. Reg. 9274 (Feb. 12, 2021) (finalizing amendments to conform labels 

for air conditioners to Department of Energy descriptors). 

15 85 Fed. Reg. at 44,485-86 (finding that “the record suggests that the Rule may not be necessary to ensure 

manufacturers provide care instructions, may have failed to keep up with a dynamic marketplace, and may 

negatively affect the development of new technologies and disclosures.”).

16 85 Fed. Reg. at 44,491 (noting that “commenters and workshop participants explained that the Rule’s failure to 

address wetcleaning has placed professional wetcleaners at a competitive disadvantage and discouraged greater use 

of that technology.”). Although it is possible some clothing manufacturers have devised ways to communicate 

wetcleaning instructions to consumers, having a Rule that precludes its use on the care label – the location to which 

consumers are most likely to turn for care instructions – is significant. The Commission received over two dozen 

comments urging its inclusion in a revised Rule in response to the Commission’s July 2020 Supplemental notice of 

proposed rulemaking. See, e.g., National Consumers League, Consumer Federation of America et al Comment, 

available at: https://www.regulations.gov/comment/FTC-2020-0058-0193; Natures Best Cleaners Comment, 

available at: https://www.regulations.gov/comment/FTC-2020-0058-0150; 

https://www.regulations.gov/comment/FTC-2020-0058-0165; GreenEarth Cleaning LLC Comment, available at: 

https://www.regulations.gov/comment/FTC-2020-0058-0137; Footwear Distributors & Retailers of America 

(FDRA) Comment, available at: https://www.regulations.gov/comment/FTC-2020-0058-0214.
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I reluctantly agree with the Commission’s decision to refrain from repealing the Rule,

and I am pleased that the Commission will continue to consider changes to update the Rule. I 

would have preferred that the Commission commit to a timeline and direct the staff to prepare a 

Supplemental Notice of Proposed Rulemaking to make the necessary changes to update and 

reassess the Rule – particularly so that our agency is not impeding entry in the clothing care 

arena. As this Commission appears poised to engage in a period of aggressive rulemaking, we 

should first ensure that our existing rules are sensible. I urge the Commission to prioritize 

updates to this Rule.

III. Proposed Policy Statement on Repair Restrictions Imposed by Manufacturers and 

Sellers

In recent years, stakeholders increasingly have expressed concerns about their ability to 

repair items they have purchased. The FTC’s response to these concerns is emblematic of the 

agency’s unique capabilities. Beyond law enforcement efforts, the agency can also conduct 

research and development to inform its policy and enforcement approaches. Here, the FTC 

launched a multi-pronged response to assess the dynamics of the repair market in measured and 

thoughtful ways. 

• First, the agency has used its authority under the Magnuson-Moss Warranty Act to launch 

enforcement efforts. Under Chairwoman Ramirez, for example, the FTC settled 

allegations that BMW’s MINI division violated the Magnuson-Moss Warranty Act by 

telling consumers that BMW would void their warranty unless they used MINI parts and 

MINI dealers to perform maintenance and repair work.17 The FTC also sent warning 

letters to potential violators, including six warning letters.

18

• Second, under Chairman Simons, the Commission staff in March 2019 issued a Call for 

Empirical Research asking members of the public to provide data and research regarding 

the prevalence of repair restrictions, the impact of such restrictions, and the rationale for 

such restrictions.19

 17 Fed. Trade Comm’n Press Release, BMW Settles FTC Charges that Its MINI Division Illegally Conditioned 

Warranty Coverage on Use of Its Parts and Service (Mar. 19, 2015), https://www.ftc.gov/news-events/pressreleases/2015/03/bmw-settles-ftc-charges-its-mini-division-illegally-conditioned. 

18 See Fed. Trade Comm’n Press Release, FTC Staff Warns Companies that It Is Illegal to Condition Warranty 

Coverage on the Use of Specified Parts or Services (Apr. 10, 2018), https://www.ftc.gov/news-events/pressreleases/2018/04/ftc-staff-warns-companies-it-illegal-condition-warranty-coverage.

19 Fed. Trade Comm’n, Call for Empirical Research: Nixing the Fix: A Workshop on repair restrictions, 

https://www.ftc.gov/nixing-the-fix-call-for-research.
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• Third, in July 2019, the Commission hosted the “Nixing the Fix” workshop.20 I was 

honored to provide opening remarks at the workshop and applauded the Commission for 

studying this complex issue.21

• And fourth, in May 2021, the four-member Commission under Acting Chair Slaughter 

issued a unanimous report to Congress on our findings to date.

22 My colleagues and I 

worked hard to develop this consensus report, and I applaud Acting Chair Slaughter for 

leading that transparent and bipartisan process. 

The FTC’s bipartisan study of this issue in recent years has underscored the need to craft 

policy positions that balance both competition and consumer protection goals. 

• Competition: Consumers rightly seek to enjoy competition in the consumer goods repair 

market. The Magnusson-Moss Warranty Act was intended to protect consumers’ choice 

and stimulate competition among small businesses vying to serve consumers’ repair 

needs. 

• Consumer Protection: While competition is beneficial, it is not the only worthy goal. 

Safety, privacy, and data security are other laudable goals. Companies may have 

legitimate justifications for restricting repair options either implicitly or explicitly, 

including through design choices to meet consumer demand for certain product 

characteristics or to address safety and security concerns. 

The FTC has experience addressing these twin concerns. The Commission’s final rule on 

the Contact Lens Rule strikes a balance between promoting competition in the sale of contact 

lenses and protecting consumers’ eye health and safety by requiring prescriptions for these FDAregulated medical devices.23

But to the extent consumer protection is used as a veneer for eradicating competition in 

the consumer goods repair market, the FTC must be prepared to step in and act. I support law 

enforcement efforts to challenge companies that violate laws under our authority, including both 

our consumer protection and competition authority. I also support coordinating with state 

officials – both legislators and enforcers – as well as other policy makers to advance the goal of 

providing more choice when it comes to repairs. 

I support the effort of this Commission to translate the learnings of our Nixing the Fix

report into a Commission policy statement. And I applaud Chair Khan for leading efforts to 

 20 Fed. Trade Comm’n, Nixing the Fix: A Workshop on Repair Restrictions (July 16, 2019), 

https://www.ftc.gov/news-events/events-calendar/nixing-fix-workshop-repair-restrictions. 

21 Statement of Commissioner Christine S. Wilson Regarding FTC’s Nixing the Fix: A Workshop on Repair 

Restrictions, https://www.ftc.gov/public-statements/2019/07/statement-commissioner-christine-s-wilsonregardingftcs-nixing-fix.

22 FED. TRADE COMM’N, NIXING THE FIX: AN FTC REPORT TO CONGRESS ON REPAIR RESTRICTIONS (May 2021),

https://www.ftc.gov/system/files/documents/reports/nixing-fix-ftc-report-congress-repairrestrictions/nixing_the_fix_report_final_5521_630pm-508_002.pdf. 

23 Contact Lens Rule, 85 Fed. Reg. 50668 (Aug. 17, 2020). 
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reach consensus on a policy statement. While this policy statement is an important next step in 

the FTC’s efforts to address unreasonable repair restrictions, I offer two points of clarification on 

my understanding of the policy statement. 

First, as the Nixing the Fix report acknowledged, intellectual property rights foster 

innovation by protecting significant investments in research and development.24 IP and 

trademark rights can create barriers to independent repairs, but manufacturers have intellectual 

property rights that may provide legitimate justification for some repair restrictions. While a full 

exploration of those IP issues fell outside the scope of the report, I am confident that we will be 

pressed to consider those issues more fully in upcoming cases. Although assertions regarding IP 

rights may not ultimately carry the day, we should not dismiss those proffered justifications 

automatically. 

Second, I do not support blanket condemnation of exclusionary design choices. The 

House Judiciary Committee’s Majority Staff Report “recommends that Congress consider 

whether making a design change that excludes competitors or otherwise undermines competition 

should be a violation of Section 2.”25 If this criterion is satisfied, the recommendation suggests 

finding an antitrust violation “regardless of whether the design change can be justified as an 

improvement for consumers.”26 This approach would elevate competitors over consumers to 

protect businesses that do not offer a desired product or service and ultimately would stifle 

innovation. 

Instead, I ascribe to the position advanced by the D.C. Circuit in Microsoft, which defines 

the standard for finding an exclusionary conduct violation under Sherman Act Section 2 for 

design changes.27 Microsoft warns that “[i]n a competitive market, firms routinely innovate in 

the hope of appealing to consumers, sometimes in the process making their products 

incompatible with those of rivals; the imposition of liability when a monopolist does the same 

thing will inevitably deter a certain amount of innovation. This is all the more true in a market . . 

. in which the product itself is rapidly changing. Judicial deference to product innovation, 

however, does not mean that a monopolist's product design decisions are per se lawful.”28

I urge the Commission to adopt this approach when evaluating the issue of exclusionary 

design.

 24 FED. TRADE COMM’N, NIXING THE FIX: AN FTC REPORT TO CONGRESS ON REPAIR RESTRICTIONS 22 (May 2021),

https://www.ftc.gov/system/files/documents/reports/nixing-fix-ftc-report-congress-repairrestrictions/nixing_the_fix_report_final_5521_630pm-508_002.pdf

25 MAJORITY STAFF OF H. COMM. ON THE JUDICIARY, 116TH CONG., INVESTIGATION OF COMPETITION IN DIGIT.

MKTS. 397-398 (2020), https://judiciary.house.gov/uploadedfiles/competition_in_digital_markets.pdf.

26 Id.

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

28 Id. at 65 (internal citations omitted).
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IV. Policy Statement on Prior Approval and Prior Notice Provisions in Merger Cases

I oppose rescission of the 1995 Policy Statement Concerning Prior Approval and Prior 

Notice Provisions in Merger Cases for at least three reasons.

First, this policy was adopted in 1995 following nearly nine years of highly resourceintensive litigation undertaken by the FTC against an abandoned transaction. A second, similar 

transaction undertaken contemporaneously did not receive the same treatment, leading some to 

question the motives of the agency in pursuing litigation against the first. Chairman Robert

Pitofsky (a Democrat) and the Commission implemented this policy at least in part as a guardrail 

to prevent similarly questionable exercises of enforcement discretion. Given recent actions by 

this Commission to bulldoze through other guardrails,29 I have heightened concerns about 

removing this one. 

The details are enlightening. The 1995 Policy Statement was adopted following the 

Commission’s pursuit of almost nine years of litigation in connection with Coca-Cola Co.’s

(“Coke’s”) proposed acquisition of the Dr Pepper Company (“Dr Pepper”).

30 The saga began 

when, in 1986, PepsiCo, Inc. (“Pepsi”) sought to acquire Seven Up Co. (“7-Up”) from Philip 

Morris, Inc. Shortly afterwards, Coke announced its intention to acquire Dr Pepper. After the 

FTC voted to challenge both transactions, Pepsi and 7-Up abandoned their deal. Coke, however, 

chose to litigate the preliminary injunction challenging its transaction. After the district court 

granted the FTC a preliminary injunction, Coke abandoned the transaction, but the Commission 

did not abandon its own litigation efforts. Notably, the FTC did not pursue a similar remedy with 

Pepsi, which abandoned its deal before trial. Some observers viewed this disparate treatment as 

evidence that the FTC’s continued litigation against Coke was a punishment for Coke’s temerity 

to exercise its legal rights and litigate. 

The FTC insisted on a full Part 3 trial and asked the administrative law judge to impose a

prior approval obligation. The ALJ found that the Coke/Dr Pepper deal would have been 

unlawful, but concluded that a prior approval order was unnecessary because the deal was 

abandoned. On appeal, the Commission issued an order that included a prior approval provision, 

which Coke appealed. While Coke’s appeal was pending before the Court of Appeals, the 

Commission recognized that its ongoing nine-year litigation with Coke regarding an abandoned 

deal was not good government. In short, the Commission issued the 1995 Policy Statement as it 

reflected on the excessive, burdensome litigation against Coke.31 I am concerned that the 

 29 See 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/1591706/p210100commnstmtwithdrawalsec5enforce

ment.pdf; Statement of the Commission Regarding the Adoption of Revised Section 18 Rulemaking Procedures 

(July 9, 2021), 

https://www.ftc.gov/system/files/documents/public_statements/1591786/p210100commnstmtsec18rulesofpractice.p

df.

30 Coca-Cola Co. 117 F.T.C. 795 (1994).

31 Crafting and implementation of the 1995 Policy Statement was also guided by the 1989 American Bar Association 

Antitrust Section's Special Committee to Study the Role of the Federal Trade Commission. In that report, the 

Special Committee found that a “firm-specific order must be justified as removing harm, restoring competition, or 

preventing likely recidivism; it should last only as long as necessary to prevent the likely resumption of the illegal 
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Commission intends to revert to the vindictive approach that led to the nine-year litigation 

against Coke.32

Based on a recent press release discussing Berkshire Hathaway Energy Company’s 

(“BHE”) abandoned proposal to acquire assets of Dominion Energy, Inc. (“Dominion”), it 

appears that the majority’s purported rationale for rescinding the Policy Statement lies in saving 

agency resources that it would otherwise spend to review a transaction the Commission 

previously considered.33 As the Coke/Dr Pepper saga reveals, the opposite may be true. And in 

any event, the agency’s previous investigation of the BHE/Dominion deal occurred in 1995. 

Does the Commission plan to issue prior approval orders that will last for more than 25 years? 

Only then would this policy change save Commission resources. I fear that rescinding the policy 

statement is being sold to the public under false pretenses.

Second, it is also important to recognize that the 1995 Policy Statement did not eliminate 

the use of prior approval and prior notice provisions in merger cases. The Policy Statement 

provides that the Commission would continue to use prior approval and prior notice provisions 

when there is a reason for the provisions. A prior approval provision may be used where there is 

a credible risk that a company would attempt the same or approximately the same merger already 

reviewed by the agency.34 A prior notification provision may be used where there is a credible 

risk that a company would engage in an otherwise unreportable anticompetitive merger.35

 

practices.” Special Committee to Study the Role of the Federal Trade Commission, Report of the American Bar 

Association Section of Antitrust Law Special Committee to Study the Role of the Federal Trade Commission, 58 

Antitrust L. J. 43, 92 (1989) (internal citations omitted).

32 I have previously cautioned against using the agency’s law enforcement authority to pursue an agenda of 

vindictiveness rather than “to obtain effective relief and instill effective deterrence.” See Statement of Commissioner 

Christine S. Wilson Regarding FTC v. Progressive Leasing at 2 (Apr. 20, 2020), 

https://www.ftc.gov/system/files/documents/public_statements/1571921/182_3127_prog_leasing_-

_statement_of_commissioner_christine_s_wilson_0.pdf.

33 Fed. Trade Comm’n Press Release, Statement Regarding Berkshire Hathaway Energy’s Termination of 

Acquisition of Dominion Energy, Inc.’s Questar Pipeline in Central Utah (July 13, 2021), 

https://www.ftc.gov/news-events/press-releases/2021/07/statement-regarding-berkshire-hathaway-energystermination (“Although this outcome preserves competition, it is disappointing that the FTC had to expend 

significant resources to review this transaction when we previously filed suit in 1995 to block the same combination. 

Questar Pipeline attempted to purchase a 50% share in the Kern River Pipeline but the parties abandoned those plans 

shortly after the Commission’s suit. Given our prior action, and the even closer competition that developed between 

the pipelines since then, this is representative of the type of transaction that should not make it out of the boardroom. 

The Bureau of Competition will be actively exploring its options on how to curtail this type of re-review to better 

deploy the Commission’s scarce resources.”).

34 Statement of Federal Trade Commission Policy Concerning Prior Approval and Prior Notice Provisions in Merger 

Cases, 60 Fed. Reg. 39,745, 39476 (Aug. 3, 1995). Under the Policy Statement, ... a narrow prior approval 

provision may be used where there is a credible risk that a company that engaged or attempted to engage in an 

anticompetitive merger would, but for the provision, attempt the same or approximately the same merger. 

35 Id. (“Under the Policy Statement, ... a narrow prior notification provision may be used where there is a credible 

risk that a company that engaged or attempted to engage in an anticompetitive merger would, but for an order, 

engage in an otherwise unreportable anticompetitive merger.”).
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Moreover, the Commission uses these provisions with some frequency. In 2020 alone, 

there were seven Commission orders that included prior notice provisions and one order that 

included a prior approval provision. As a practical matter, I am dubious about whether rescission 

of this policy will facilitate further constructive use of prior notice and prior approval provisions. 

Instead, as my colleague Commissioner Phillips will discuss, I fear that it will facilitate a

massive end-run around Hart-Scott-Rodino (“HSR”) filing requirements and, for mergers subject 

to prior approval provisions, a shifting of the burden of proof that will chill procompetitive deals 

and hurt consumers.

36 I am aware that some legislators in Congress favor the creation of special 

pre-merger notification requirements for certain sectors of our economy;37 others seek to make 

merging parties prove their transactions are benign before permitting them to proceed.38 Shifting 

the traditional burden of proof offends longstanding notions of due process and fairness, so it is 

not a step to be taken lightly. If the majority wishes to overhaul the pre-merger notification 

framework and flip the burden of proof in large swaths of mergers, it should ask Congress to 

pass the appropriate legislation.

The Commission currently is conducting a 6(b) study requiring Alphabet Inc. (including 

Google), Amazon.com, Inc., Apple Inc., Facebook, Inc., and Microsoft Corp. to provide 

information about prior acquisitions not reported to the antitrust agencies under the HSR Act 

over a 10 year period.

39 I issued a statement urging the Commission to study sub-HSR deals 

driving consolidation in other industries, including dialysis facilities, pharmaceutical companies,

and hospitals.

40 The Commission has not yet issued findings from its 6(b) study in the tech

sector, and has not yet announced studies in other industries. 41 When completed, these analyses 

may ultimately provide a basis for recommendations to Congress about changes to the HSR 

framework, but the majority’s actions today are unsupported by any empirical analysis. 

Third, rescinding the 1995 Policy Statement will create uncertainty. For example, under 

what circumstances will the Commission now seek to impose prior notice and prior approval 

provisions? On a related note, existing Commission rules establish the procedure for the 

 36 See Statement of Commissioner Noah Joshua Phillips, Dissenting Statement Regarding the Commission’s 

Withdrawal of the 1995 Policy Statement Concerning Prior Approval and Prior Notice Provisions in Merger Cases.

37 See MAJORITY STAFF OF H. COMM. ON THE JUDICIARY, 116TH CONG., INVESTIGATION OF COMPETITION IN DIGIT.

MKTS. 388 (2020), https://judiciary.house.gov/uploadedfiles/competition_in_digital_markets.pdf (“This process

would occur outside the current HartScott-Rodino Act (HSR) process, such that the dominant platforms would be

required to report all transactions and no HSR deadlines would be triggered.”).

38 Platform Competition and Opportunity Act of 2021, H.R. 3826, 117th Cong. (2021). Some commentators argue 

that shifting the burden to the defendant for potentially procompetitive transactions diminishes the role of the 

judiciary and offends due process and fairness.

39 Fed. Trade Comm’n Press Release, FTC to Examine Past Acquisitions by Technology Companies (Feb. 11, 2020), 

https://www.ftc.gov/news-events/press-releases/2020/02/ftc-examine-past-acquisitions-large-technology-companies.

40 See Statement of Commissioner Christine S. Wilson, Joined by Commissioner Rohit Chopra, Concerning NonReportable Hart-Scott-Rodino Act Filing 6(b) Orders, (Feb. 11, 2020), https://www.ftc.gov/publicstatements/2020/02/statement-commissioner-christine-s-wilson-joined-commissioner-rohit-chopra. 

41 Notably, based on its experience leading up to the 1995 Policy Statement, the Commission in 1995 found that “the 

HSR Act has proven to be an effective means of investigating and challenging most anticompetitive transactions 

before they occur. Statement of Federal Trade Commission Policy Concerning Prior Approval and Prior Notice 

Provisions in Merger Cases, 60 Fed. Reg. 39,745 (Aug. 3, 1995)
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Commission to consider prior approvals. Should we anticipate changes to these Commission 

rules?

Similar uncertainty was created three weeks ago when the majority rescinded the 

Bipartisan 2015 Section 5 Policy Statement and offered only vague promises of filling the 

vacuum in the future.42 And today, by rescinding the 1995 Policy Statement without providing 

further guidance, the Commission substitutes uncertainty for a policy that has worked for more 

than 25 years. In both instances, the majority creates confusion regarding the policies that will 

guide the agency’s actions. Creating confusion is not the hallmark of good government.

This uncertainty is heightened by the potential for differing practices at the two federal 

antitrust agencies. It is my understanding that the Antitrust Division of the Department of Justice 

sometimes incorporates a provision in consent agreements that prohibits the reacquisition of 

divested assets, similar to the approach the FTC currently employs. After withdrawal of the 1995

Policy Statement, though, I can envision liberal use of prior approval provisions covering far 

more than divestiture assets. This differential between the two agencies will enhance perceptions 

that the agencies apply different standards and processes, and give ammunition to those who 

seek to consolidate jurisdiction at the DOJ. 

When the Commission issued the Policy Statement in 1995, it solicited public comments. 

Chair Khan and Commissioners Chopra and Slaughter previously have emphasized the 

importance of democratic participation in government.43 In the interest of facilitating stakeholder 

input on the benefits and costs of the 1995 Policy Statement, including the potential drawbacks I 

have described, I offer a topping motion: 

 42 See 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; 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/1591706/p210100commnstmtwithdrawalsec5enforce

ment.pdf.

43 See Rohit Chopra & Lina M. Khan, The Case for “Unfair Methods of Competition” Rulemaking, 87 U. CHI. L.

REV. 357, 367 (2020), 

https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/ChopraKhan_Rulemaking_87UCLR357.pdf; 

Rebecca Kelly Slaughter, Acting Chairwoman, Fed. Trade Comm’n, Keynote Remarks at the Consumer Federation 

of America’s Virtual Consumer Assembly (May 4, 2021), 

https://www.ftc.gov/system/files/documents/public_statements/1589607/keynote-remarks-acting-chairwomanrebecca-kelly-slaughte-cfa-virtual-consumer-assembly.pdf (“As we describe above, the current approach generates 

ambiguity, is unduly burdensome, and suffers from a democratic participation deficit. Rulemaking can benefit the 

marketplace and the public on all of these fronts.”). But what became known as “Mag-Moss rulemaking” is so much 

more formal and cumbersome, looking more like high-stakes litigation in federal court than a public-input hearing 

before a state legislative committee. Many of the burdens associated with “Mag-Moss” come not from the enabling 

statute but from the Commission’s own rules, 32 which have not been updated recently. ... I believe that the

efficient, democratic spirit of section 18’s text can be revived through a streamlining of the FTC’s own 

implementing rules, and I hope that we do just that.”).
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I move that the Commission direct staff to prepare a Federal Register Notice seeking 

public comment on the proposal to rescind the 1995 Statement of Federal Trade 

Commission Policy Concerning Prior Approval and Prior Notice Provisions.