1 

bill

Update from the FTC’s Bureau of Competition

Holly Vedova0F

1

Director, Bureau of Competition 

Federal Trade Commission

Remarks at 12th Annual GCR Live: Law Leaders Global Conference

Miami, Florida 

February 3, 2023 

Introduction

Thank you, Josh Soven, for that extraordinarily kind introduction, and thank you to 

Global Competition Review for inviting me to speak this morning. It’s my great pleasure to 

speak with everyone, and it’s so great to see so many familiar faces. Let me just quickly give the 

standard disclaimer that the views expressed here are my own and do not necessarily represent 

the views of the Federal Trade Commission or any Commissioner. 

Josh, in your introduction, I’m so glad you mentioned the FTC’s distinct culture—our 

strong commitment to ensuring competitive markets and getting the job done. What you 

described ties in very nicely to what I am planning to say. We have a lot going on right now on 

the competition side at the FTC, and it all demonstrates exactly what you said. We are bringing 

cases with big impact, and looking to chart a new course by using all of our authority to ensure 

competition is working for everyone, from consumers and workers to small businesses. And 

none of this would be possible without our incredibly talented and hard-working staff. The 

Bureau of Competition is full of some of the most talented antitrust attorneys around. 

Before I get going on the topics I had planned, I thought I’d just go ahead and address the 

elephant in the room: our Meta/Within merger case.1F

2

 At the moment I cannot say anything about 

its outcome, because the decision is still under seal.2F

3

 But I want to emphasize that there is 

tremendous value in our bringing difficult cases to ensure competitive markets. Even in 

situations where a court doesn’t reach the conclusion we were hoping for, a court’s opinion can 

have beneficial interpretations of the law that can help us in future cases down the road, and 

1 I would like to thank Hillary Greene, Special Counsel for Competition Policy, Office of Policy and Coordination, 

Bureau of Competition, Federal Trade Commission, for her invaluable assistance in preparing these remarks.

2 Press Release, Fed. Trade Comm’n, FTC Seeks to Block Virtual Reality Giant Meta’s Acquisition of Popular App 

Creator Within (July 27, 2023), https://www.ftc.gov/news-events/news/press-releases/2022/07/ftc-seeks-blockvirtual-reality-giant-metas-acquisition-popular-app-creator-within. 3 The court’s decision has since been released and is available here: https://t.co/1F2YWc9c2z. 
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really chart out a new course.3F

4 In fact, that possibility is very much a part of what we consider 

when we think about which cases to bring. In any event, I can assure you that we will have much 

more to say about our Meta/Within case in due course. 

Today I want to discuss several developments regarding unfair methods of competition: 

this includes the Commission’s recently released Section 5 Statement, some new consent 

agreements regarding noncompetes, and a proposed noncompete rule that has been issued for 

public comment. Then I’ll touch on our Durbin Amendment enforcement action, our merger 

guidelines review project, and our HSR Form revisions project. I’ll conclude with discussion our 

new approach to merger remedies. 

Section 5—Unfair Methods of Competition

Let’s start at the beginning—and I think this really gets at what Josh said in his 

introduction—it explains why the FTC has its distinct culture and is so focused on ensuring 

competitive markets: our enabling legislation assigned to us a unique role in advancing 

competition policy. Section 5 of our law give us the flexible and open-ended power to prevent 

“unfair methods of competition.”4F

5

 

As it turned out, before the FTC was created, in the first two dozen years after passage of 

the Sherman Act, Congress had grown increasingly dissatisfied with its common law 

development through a generalist court system.5F

6

 Congress responded by creating a new, 

independent and expert agency—the Federal Trade Commission—and gave it the job of policing 

“unfair methods of competition” in addition to enforcing the existing antitrust laws and the 

newly minted Clayton Act. According to the Supreme Court, it was the FTC that would provide 

“the best check on unfair competition.”6F

7

 In fact, the Supreme Court has time and again 

confirmed the Commission’s unique Section 5 authority. It has explicitly recognized: 

• that the Commission’s mandate is to define unfair methods of competition and that those 

determinations deserve “great weight”; 7F

8

• that the Commission enjoys flexibility when defining unfair methods of competition, and 

that this flexibility includes not having to narrowly catalog precise practices;8F

9

 and 

4 See Winston Cho, Meta Won Approval to Buy a Virtual Reality App, But FTC Laid Groundwork to Halt Big 

Tech’s Next Deal, THE HOLLYWOOD REPORTER, (Feb. 6, 2023),

https://www.hollywoodreporter.com/business/business-news/meta-within-ftc-challenge-legal-ruling-1235319297/. 5 Federal Trade Commission Act, 15 U.S.C. § 45.

6 S. REP. NO. 62-1326, at 19 (1913). 7 Fed. Trade Comm’n v. Texaco, 393 U.S. 223, 262 (1968).

8 Off. Airline Guides, Inc. v. Fed. Trade Comm’n, 630 F.2d 920, 927 (2d Cir. 1980) (quoting Fed. Trade Comm’n v. 

Cement Inst., 333 U.S. 683, 720 (1948)); Atl. Refin. Co. v. Fed. Trade Comm’n, 381 U.S. 357, 368 (1965); Fed. 

Trade Comm’n v. R.F. Keppel & Bro., Inc., 291 U.S. 304, 314 (1934); see also Fed. Trade Comm’n v. Ind. Fed’n of 

Dentists, 476 U.S. 447, 455 (1986); Texaco, 393 U.S. at 226; Fed. Trade Comm’n v. Motion Picture Advert. Serv. 

Co., 344 U.S. 392, 396 (1953).

9 Fed. Trade Comm’n v. Colgate-Palmolive Co., 380 U.S. 374, 384-85 (1965) 

(noting that the proscriptions in section 5 are flexible); Pan Am. World Airways, Inc. v. United States, 371 U.S. 296, 

306 -08 (1963) (“[Section 5] was designed to bolster and strengthen antitrust enforcement[,] and the definitions are 

not limited to precise practices that can readily be catalogued. They take their meaning from the facts of each case 

and the impact of particular practices on competition and monopoly.”).
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• that conduct condemned as an unfair method of competition need not amount to a 

violation of the Sherman or Clayton Acts.9F

10 

And that last point bears repeating: Congress intended the FTC Act to address a broader 

range of anticompetitive conduct than can be reached under the other antitrust laws. 

Unfortunately, there is a lengthy interlude, starting in the 1980s and running all the way 

until just a couple years ago, during which the agency adopted an increasingly cramped vision of 

Section 5 that culminated in it being treated as largely a carbon copy of the Sherman Act 

dominated by the Rule of Reason.10F

11 The agency made this decision even though lawmakers long 

ago outlawed “unfair methods of competition” to catch bad behavior that the Sherman Act was 

missing.11F

12

This all changed in late 2022 when the Commission issued a new Section 5 policy 

statement.12F

13 This Statement fully reflects the important and distinctive history and precedent of 

the FTC Act, while also reflecting upon its application for modern times, where I believe there is 

now a broad consensus that competition problems continue to elude antitrust enforcement rooted 

in the Rule of Reason. 

The Commission’s policy statement regarding the scope of unfair methods of competition 

under Section 5 combines the text of the statute, along with its legislative history, judicial 

precedent, and prior agency experience, into a comprehensive explanation of how the FTC 

intends to combat “unfair methods of competition.” This statement was carefully crafted by an 

extraordinary cross-agency team that included lawyers all around the agency as well as 

economists. 

When evaluating potential Section 5 violations, keeping in mind that the statement 

operates as a guide and not a cookbook, we ask two questions: first, is the conduct a method of 

competition? And, if so, is it unfair? 

10 Motion Picture Advertising, 344 U.S. at 394-95 (noting that “Congress advisedly left the concept [of unfair 

methods of competition] flexible . . . [and] designed it to supplement and bolster the Sherman Act and the Clayton 

Act[,] [so as] to stop . . . acts and practices [in their incipiency] which, when full blown, would violate those 

Acts[,]. . . as well as to condemn as "unfair methods of competition" existing violations of them”); Cement 

Institute, 333 U.S. at 708 (holding that conduct that falls short of violating the Sherman Act may violate Section 

5); R. F. Keppel & Bro., 291 U.S. at 310 (finding that unfair methods of competition not limited to those “which 

are forbidden at common law or which are likely to grow into violations of the Sherman Act”).

11 See FED. TRADE COMM’N, 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 2, 

7 (2021). 12 E.I. du Pont de Nemours v. Fed. Trade Comm’n, 729 F.2d 128, 136 (2d Cir. 1984) (“Congress’ aim was to protect 

society against oppressive anti-competitive conduct and thus assure that the conduct prohibited by the Sherman and 

Clayton Acts would be supplemented as necessary and any interstices filled”) (citing H.R. REP. NO. 63-1142, at 19 

(1914) (Conf. Rep.)); 51 CONG. REC. 11236 (1914) (statement of Sen. Cummins) (stating that the purpose of Section 

5 was “to make some things punishable, to prevent some things, that cannot be punished or prevented under the 

antitrust law”).

13 See FED. TRADE COMM’N, POLICY STATEMENT REGARDING THE SCOPE OF UNFAIR METHODS OF COMPETITION 

UNDER SECTION 5 OF THE FEDERAL TRADE COMMISSION ACT (2022), 

https://www.ftc.gov/system/files/ftc_gov/pdf/P221202Section5PolicyStatement.pdf. 
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A method of competition is conduct an actor undertakes in the marketplace that relates, 

directly or indirectly, to competition.13F

14 In that way it’s distinguishable from marketplace 

conditions not of the respondent’s making, such as high concentration or barriers to entry.14F

15

Conduct is unfair if it goes beyond competition on the merits.15F

16 Based on past cases and 

Commission experience, this usually involves conduct that is facially unfair, particularly where 

coercive, deceptive, predatory or, in general, an abuse of one’s economic power.16F

17 And yes, 

that’s a lot of adjectives. But that’s because we need to respond in kind to the staggeringly 

diverse anticompetitive conduct we encounter. Of course, more is needed to be unfair under 

Section 5. The conduct can’t just be abusive—it must also tend to negatively affect competitive 

conditions.17F

18 For example, does the conduct tend to foreclose or impair the opportunities of 

market participants, reduce competition between rivals, limit choice or otherwise harm 

consumers or workers?

So how do we evaluate these two aspects of unfair methods of competition? Which, 

again, involve abuse and the negative impact on competitive conditions. Well, they’re analyzed 

on a sliding scale. If the abuse or coercion is clear, less is needed to show a tendency to 

negatively affect competitive conditions.18F

19 But, when conduct is not facially abusive, more 

information about the commercial setting may be necessary to determine whether there is a 

tendency to negatively affect competitive conditions.19F

20

What happens if conduct prima facie constitutes an unfair method of competition? Well, 

normally, liability will ensue absent adequate justifications.20F

21 Well-established parameters of 

permissible defenses in non-Section 5 cases also apply under Section 5.21F

22 For example, the party 

14 E.I. du Pont de Nemours, 729 F.2d at 139.

15 Id. at 132, 135.

16 See United States v. Grinnell Corp., 384 U.S. 563, 571 (1966) (distinguishing unlawful acquisition or 

maintenance of monopoly power from consequences of “a superior product, business acumen, or historic accident”); 

United States v. Aluminum Co. of Am., 148 F.2d 416, 430 (2d Cir. 1945) (distinguishing conduct based on “superior 

skill, foresight and industry”).

17 See, e.g., Fed. Trade Comm’n v. Sperry & Hutchinson Co., 405 U.S. 233, 243 (1972) (citing Fed. Trade Comm’n 

v. R.F. Keppel & Bro., Inc., 291 U.S. 304, 313 (1934) (construing Section 5 to reach conduct shown to exploit 

consumers); Atl. Refin. Co. v. Fed. Trade Comm’n, 381 U.S. 357, 369 (1965) (finding an unfair method of 

competition where the defendant “utilize[ed] ... economic power in one market to curtail competition in another,” 

which was “bolstered by actual threats and coercive practices”); Fed. Trade Comm’n v. Texaco, 393 U.S. 223, 228-

29 (1968) (finding an unfair method of competition where the defendant used its “dominant economic power ... in a 

manner which tended to foreclose competition”); E.I. du Pont de Nemours, 729 F.2d at 140 (finding that unfair 

methods of competition includes practices that are “collusive, coercive, predatory, restrictive, or deceitful” as well as 

“exclusionary”).

18 See POLICY STATEMENT, supra note 11, at 4; see also S. REP. NO. 1326, at 4 (1913) (stating that “Congress 

should maintain the policy established by the anti-trust law” to “‘[maintain] competitive conditions,” and that “every 

possible effort to create and preserve competitive conditions should be made”); H.R. Rep. No. 63-533, at 2 (1914) 

(reported by Rep. Covington) (“The administration idea, and the idea of businessmen, generally, is for the 

preservation of proper competitive conditions in our great interstate commerce.”).

19 E.I. du Pont de Nemours, 729 F.2d at 137-39.

20 See POLICY STATEMENT, supra note 11, at 9. 21 Id. at 10.

22 Id. at 11.
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asserting a justification for the conduct bears the burden of showing it is legally cognizable,22F

23

non-pretextual,23F

24 and that any restriction used to bring about the benefit is narrowly tailored to 

limit any adverse impact on competitive conditions.24F

25 On top of that, the asserted benefits must 

not accrue to parties outside the market where the asserted harm occurs.25F

26 And, finally, the party 

bears the burden of showing that given all the circumstances, the asserted benefits outweigh the 

harm. 

It’s fair to ask what does this renewed attention to Section 5 mean going forward? How 

will it be applied in practice? Those are good questions—and ones that the Commission has 

already begun to answer. We recently entered into three consent agreements and embarked on a 

public ruling making—all of which are rooted in the FTC’s stand-alone Section 5 authority. 

Noncompete Consent Agreements

The FTC has been interested in competition in labor markets for some time now, given its 

importance. Back in 2020 the Commission conducted a public workshop to examine the effects 

of non-compete restrictions.26F

27 These restrictions are contractual terms between an employer and 

a worker that typically block the worker from working for a competing employer, or starting a 

competing business, within a certain geographic area for a period of time after the worker’s 

employment ends. Non-compete clauses limit competition by their express terms. As you can 

imagine, these clauses have certainly caught our attention. 

Viewed through the lens of the new Section 5 Policy Statement, the Commission 

considered how non-compete restrictions could be used to exploit an employer’s superior 

bargaining position to keep workers from leaving. For instance, last month, the Commission 

accepted a settlement with Prudential Security over its employment contracts with security 

guards.27F

28 These guards—who were earning at or slightly above minimum wage, and who 

received only minimal training from Prudential—were required to sign noncompetes as a 

condition of employment. These restrictions prevented these low-wage security guards from 

working for a competitor or creating a competing business within a 100-mile radius for two years 

after departing. And if they violated the noncompete—a clause about which very few, if any, 

security guards had consulted with an attorney when hired—they had to pay $100,000 in 

23 See Fed. Trade Comm’n v. Superior Ct. Trial Lawyers Ass’n, 493 U.S. 411, 423-24 (1990); Fed. Trade Comm’n 

v. Ind. Fed’n of Dentists, 476 U.S. 447, 463-64 (1986); NCAA v. Board of Regents, 468 U.S. 85, 113-15 (1984); 

United States v. Addyston Pipe Steel Co. 85 F. 271 (6th Cir. 1898), aff’d 175 U.S. 211 (1899).

24 Pretextual justifications include those that are not set forth in documents prior to, or contemporaneous with, the 

introduction of the conduct, or not plausibly based on the known facts. See, e.g., Ind. Fed’n of Dentists, 476 U.S. at 

464 (affirming the Commission’s finding that there was insufficient evidence that the restraint conferred the claimed 

benefit at all). See also United States v. Microsoft Corp., 253 F.3d 35, 62-64, 72, 74, 76-77 (D.C. Cir. 2001); 

Eastman Kodak Co. v. Image Tech. Servs., 504 U.S. 541, 472, 484-85 (1992); Aspen Skiing Co. v. Aspen Highlands 

Skiing Corp., 472 U.S. 585, 608-10 (1985); Texas Specialty Physicians v. Fed. Trade Comm’n, 528 F.3d 346, 368-

70 (5th Cir. 2008); United States v. Dentsply Int’l, Inc., 399 F.3d 181, 196-97 (3d Cir. 2005). 25 NCAA v. Alston, 141 S. Ct. 2141, 2162-64 (2021); Polygram Holding, Inc. v. Fed. Trade Comm’n, 416 F.3d 29, 

38 (D.C. Cir. 2005).

26 United States v. Phila. Nat’l Bank, 374 U.S. 321, 370-71 (1963).

27 Non-Competes in the Workplace: Examining Antitrust and Consumer Protection Issues, FED. TRADE COMM’N, 

https://www.ftc.gov/news-events/events/2020/01/non-competes-workplace-examining-antitrust-consumerprotection-issues. 28 Agreement Containing Consent Order, Prudential Security, Inc., FTC File No. 221-0026 (F.T.C. Jan. 4, 2023), 

https://www.ftc.gov/legal-library/browse/cases-proceedings/2210026-prudential-security-et-al-matter. 
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liquidated damages. Nor did the employees receive any monetary compensation or job security 

in exchange for the noncompete restrictions. Importantly, even after a Michigan state court ruled 

that Prudential’s noncompetes were unreasonable and unenforceable under state common law, 

Prudential still included those onerous terms in its employment contracts with other workers. 

The Commission also issued two separate complaints involving non-compete restrictions 

imposed by the two of the largest manufacturers of glass food and beverage containers, the firms 

Ardagh Glass28F

29 and O-I Glass.29F30 The glass container industry in the United States is highly 

concentrated and has substantial barriers to entry and expansion. Among those barriers is the 

need for personnel with skills and experience in glass container manufacturing. The non-compete 

restrictions prohibited employees across a wide variety of positions including engineering and 

quality assurance, from working for a competing business within the United States for one or two 

years after they leave either company. 

The Commission alleged that these non-compete restrictions had the tendency or likely 

effect of harming competition, consumers, and workers by impeding entry and expansion of 

rivals in the glass container industry; reducing employee mobility; and causing lower pay, 

reduced benefits, less favorable working conditions, and personal hardship to employees. 

In all three complaints, aligned with the Section 5 statement, the Commission found that 

the noncompete agreements constituted an unfair method of competition. As to the first prong of 

the Section 5 analysis, the noncompetes were found to constitute methods of competition. The 

employers knowingly imposed and enforced restrictions on employment options for affected 

workers and, therefore, implicated competition for labor. As to the second prong, that the 

methods were unfair—which meant they were abusive and tended to harm competition—we can 

look to their effects within the marketplace: 

• The non-compete agreements were exploitative and coercive with regard to their workers 

because they impaired the workers’ ability to negotiate for better pay and working 

conditions. The coercive effect of the employers’ threats and lawsuits reflected workers’ 

relatively vulnerable economic positions. 

• The noncompetes were restrictive with regard to rival companies because they impaired 

the rivals’ abilities to compete for the labor of the affected workers. 

• Significantly, with the glass container manufacturing firms Ardagh Glass and O-I Glass, 

entry was impeded by the inability of entrants to gain access to needed skilled personnel. 

In aggregate, these restrictions tended to harm competition because they prevented 

workers and employers from freely choosing their preferred jobs and candidates respectively. 

Research suggests that noncompetes measurably reduce worker mobility, lower workers’ 

earnings, yield less favorable working conditions, and increase racial and gender wage gaps.30F

31 

29 Complaint, Ardagh Group S.A., FTC File No. 200-0182 (F.T.C. Jan. 4, 2023), https://www.ftc.gov/legallibrary/browse/cases-proceedings/2110182-ardagh-group-et-al-matter. 30 Complaint, O-I Glass, Inc., FTC File No. 211-0182 (F.T.C. Jan. 4, 2023), https://www.ftc.gov/legallibrary/browse/cases-proceedings/2110182-o-i-glass-inc-matter. 31 Matthew Johnson et al., The Labor Market Effects of Legal Restrictions on Worker Mobility 1-5 (2019), available 

at papers.ssrn.com/sol3/papers.cfm?abstract_id=3455381. 
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The Commission also considered whether the companies had any legitimate objectives of 

such noncompete agreements—such as protection of trade secrets or other confidential 

information—and found to the extent they were meaningfully present at all, they could have 

been achieved through significantly less restrictive means, such as confidentiality agreements. In 

fact, both Ardagh Glass and O-I Glass nullified the challenged non-compete restrictions after 

learning of the Commission’s investigation, “apparently without incurring any notable 

impediment to their ability to achieve any legitimate business objectives.”31F

32 

Noncompete Public Rulemaking

These three consent agreements are just the tip of the iceberg. Approximately one in five 

American workers are bound by noncompete agreements.32F

33 That’s about 30 million American 

workers restricted from pursuing better employment opportunities. That’s unacceptable and 

suggests that case-by-case enforcement in this area may not act as a sufficient deterrent. 

It’s hard to think of something more foundational to an employee than the freedom to 

pursue a better job or better working conditions. As the Supreme Court has observed, workers 

have an inalienable right to quit their jobs.33F

34 And, while non-compete clauses do not—strictly 

speaking—prevent workers from quitting their jobs, they do limit their options in ways that 

impose a real burden on their ability to move on. 

So what is the cost to workers from noncompetes? They lose up to an estimated $300 

billion per year in earnings in addition to reduced career opportunities.34F

35 Interestingly, it is both 

those who themselves labor under such contracts, as well as workers who are not directly subject 

to noncompetes, who pay the price. So how does that happen? When noncompetes are prevalent, 

workers are more likely to remain in jobs that do not maximize their productive capacity. This 

materially reduces wages for all workers, since jobs that would otherwise be better matched for 

an unconstrained worker are filled by workers subject to non-compete restrictions. 

Relatedly, what do noncompetes cost consumers? In the health care sector alone, 

noncompetes are estimated to increase prices to consumers by up to $150 billion per year.35F

36 

Given the pervasiveness and importance of the problem, the Commission very recently 

issued a proposed rule that, in a nutshell, bans noncompete agreements.36F

37 Specifically, the FTC’s 

proposed rule would make it illegal for an employer to: (1) enter into or attempt to enter into a 

noncompete with a worker, (2) maintain a noncompete with a worker, or (3) represent to a 

32 Glass Container Non-Compete Restrictions; Analysis of Agreements Containing Consent Orders to Aid Public 

Comment, 88 Fed. Reg. 2618, 2621 (Jan. 17, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/2110182oiglassardaghaapc.pdf. 33 Evan P. Starr et al., Noncompete Agreements in the U.S. Labor Force, 64 J.L. & ECON. 53, 53 (2021).

34 NLRB v. Fansteel Metallurigcal Corp., 306 U.S. 240, 256 (1939) (characterizing lawful strikes as “the exercise of 

the unquestioned right to quit work”).

35 News Release, Fed. Trade Comm’n, FTC Proposes Rule to Ban Noncompete Clauses, Which Hurt Workers and 

Harm Competition (Jan. 5, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-proposes-ruleban-noncompete-clauses-which-hurt-workers-harm-competition. 36 Non-Compete Clause Rule, 16 C.F.R. pt. 190, at 130 (proposed Jan. 5, 2023).

37 Id.
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worker, under certain circumstances, that the worker is subject to a noncompete. It would also 

rescind existing noncompete agreements.37F

38 

The notice of public rulemaking identifies alternative rules for comment, noting possible 

differential treatment for senior executives and high-wage workers and for franchisees within a 

relationship with a franchisor. The rulemaking notice also asks for comments on the sufficiency 

of methods other than noncompetes to protect valuable investments in workers. 

To me, it makes perfect sense for the FTC to address the noncompete problem through 

rulemaking. In contrast to case-by-case adjudication, a single rule results in greater legal clarity 

and predictability, greater administrability and efficiency of enforcement. A rule also has the 

benefit of treating rivals in the same way and at the same time. These advantages are huge, given 

the number of firms involved in the conduct. 

The simplicity of the proposed rule also makes rulemaking more attractive because there 

is no ambiguity or variance. The rule can be easily understood and applied across different firms 

and industries. Other advantages of an FTC rule include ending different state-level treatments 

that impact cross-jurisdiction markets, and eliminating the need for employees to use private 

rights of action, which may be limited in some cases by other contractual provisions in an 

employee’s labor contract. 

The Commission has already received thousands of comments on the proposed rule, and 

we will continue to accept comments through March 20.

Durbin Amendment—Mastercard Settlement

Before I turn to the merger side of our competition work, I want to briefly mention our 

Mastercard settlement from late last year.38F

39 This was our first enforcement action under the 

Durbin Amendment and we’re really excited about it. While not an antitrust case, it should 

nonetheless significantly improve competition and reduce the cost of using a debit card for 

online purchases. 

As you may know, the FTC enforces some aspects of the Durbin Amendment to the 2010 

Dodd-Frank Act.39F

40 Congress created this act in order to spur greater competition among payment 

card networks. Congress required debit card-issuing banks to enable at least two unaffiliated 

payment networks on every debit card, thereby giving merchants a choice of which network to 

use for their debit transactions. It also barred payment card networks from inhibiting merchants 

from using other networks. The Federal Reserve issued a rule setting out these obligations, and 

the FTC enforces the ban on exclusive agreements for the payment card networks. 

Our consent agreement alleges that Mastercard was flouting the law by setting policies to 

block merchants from routing ecommerce transactions using Mastercard-branded debit cards 

saved in ewallets to alternative payment card networks. Specifically, we allege that Mastercard 

used its control over a process called “tokenization” to block the use of competing payment card 

networks and route those transactions over Mastercard’s network instead. Given the rapid growth 

in ewallet transactions, which was accelerated during the pandemic, Mastercard’s actions 

38 Id. at 1.

39 Agreement Containing Consent Order, Mastercard, Inc., FTC File No. 201-0011 (F.T.C. Dec. 23, 2020), 

https://www.ftc.gov/legal-library/browse/cases-proceedings/mastercard-inc-matter. 40 15 U.S.C. § 1693o-2.
9 

resulted in higher processing fees for merchants. It’s a matter of a few cents here and there, but 

given the popularity of ewallet transactions, the harm was real and widespread.

The Commission order, which is subject to final approval, would restore payment card 

network competition for remote ewallet payments involving Mastercard-branded debit cards, and 

represents an important victory for consumers and merchants who rely on debit card payments. 

Merger Guidelines Revision Project

Finally, I’d like to address the merger side of our competition work, starting with our 

effort to revise the Merger Guidelines. The FTC, along with Department of Justice Antitrust 

Division, is in midst of revising our merger guidelines. We have engaged in broad stakeholder 

outreach in connection with this effort, including several public listening sessions and a request 

for information that received over 5,000 public comments.40F

41 We are hoping to release guidelines 

for public comment in the coming months. I think it is fair to say that many of the general 

principles that are already guiding our BC merger enforcement efforts are likely to be reflected 

in the new guidelines. 

At a very high level, what you can expect from of the revised guidelines is similar to 

what I described earlier about our new Section 5 policy statement—a recommitment to using the 

full statutory authority Congress has granted to us. This means that we will follow the text, 

structure, and history of all underlying statutes, as well as all controlling law and precedent. And 

similarly, you can expect an emphasis on how the Clayton Act Section 7 Anti-Merger Act, 

unlike the Sherman Act, applies an incipiency standard, rather than an overarching focus on the 

rule of reason. 

We are also exploring revisions that better account for key aspects of the modern 

economy, including those that arise in digital markets, such as zero-price products, multi-sided 

markets, gatekeeper platforms, and data aggregation. Additionally, I think you can expect 

monopsony issues, including labor, to be discussed more prominently than in prior agency 

guidance. 

I think you will also see a correcting of past blind spots in merger review. We have today 

empirical evidence that shows that our past approach to merger enforcement has missed too 

many transactions that have resulted in substantially lessened competition and undue 

consolidation. 

A good example of this empirical evidence is shown in what has happened in the online 

ad tech market, culminating in the Department of Justice Antitrust Division’s lawsuit filed last 

week against Google for monopolizing the ad tech market.41F

42 I think a lot of you may know that 

back in 2007, the FTC investigated an earlier merger involving this market where Google 

proposed to acquire DoubleClick, and we ended up closing the investigation.42F

43 I know there has 

41 U.S. DEP’T OF JUSTICE & FED. TRADE COMM’N, REQUEST FOR INFORMATION ON MERGER ENFORCEMENT (Jan. 18, 

2022), https://www.ftc.gov/news-events/news/press-releases/2022/01/federal-trade-commission-justice-departmentseek-strengthen-enforcement-against-illegal-mergers. 42 Complaint, United States v. Google, LLC, No. 1:23-cv-00108 (Jan. 24, 2023 E.D. Va.), 

https://www.justice.gov/opa/pr/justice-department-sues-google-monopolizing-digital-advertising-technologies. 43 FED. TRADE COMM’N, STATEMENT CONCERNING GOOGLE/DOUBLECLICK, FTC FILE NO. 071-0170 (Dec. 20, 

2007), https://www.ftc.gov/legal-library/browse/cases-proceedings/public-statements/statement-federal-tradecommission-concerning-googledoubleclick.
10 

already been talk of this of late,43F

44 but I’d like to touch on it too, since I lived through it (perhaps 

there are some here in the audience who did as well). The FTC found that, using the standards 

spelled out in the 2010 Horizontal Merger Guidelines, the proposed acquisition was unlikely to 

substantially lessen competition. However, one of the FTC Commissioners disagreed—FTC 

Commissioner Pamela Jones Harbour. She wrote a dissenting statement, arguing that the 

combination of Google and DoubleClick likely would affect the evolution of the entire online 

advertising market, particularly in light of the network effects the transaction would generate.44F

45 

It turns out Commissioner Jones Harbour predicted precisely what happened in that 

market, which ultimately necessitated the filing of the Department of Justice Antitrust Division’s 

lawsuit last week. I don’t mean to criticize the FTC in pointing this out—I think former 

Commissioner Jones Harbour was incredibly visionary and ahead of her time. The FTC was just 

being faithful to our existing practices in merger review. But clearly there was something going 

on that we did not catch, given what we know about the ad tech market today. So I think it’s a 

real lesson learned that shows that we antitrust enforcers need to continually re-examine and fine 

tune our approach. The goal of our merger guideline revision project is to do just that and enable 

us to more effectively use our tools so we can make better predictions about the future effects of 

proposed mergers. 

HSR Form Revisions 

Related to the merger guidelines, we have another initiative underway that is designed to 

improve the agencies’ efficiency and effectiveness in merger enforcement. FTC and DOJ staff 

have been conducting a top-to-bottom review of the information contained in the HSR Form with 

an eye towards getting the information we need from merging parties upfront to enable the most 

efficient and thorough initial review of their deals. This effort will result in a Commission 

rulemaking that modifies the merging parties’ premerger notification obligations. The hope is 

that the new form will better equip our staff to more efficiently review merger filings.

Merger Remedies

I will now conclude with an update regarding our thinking about merger remedies. Over 

time, remedies have become increasingly complex and, our studies tell us, prone to 

implementation failures. We can’t expect different results if we keep doing the same thing. So 

we are rethinking our practices and taking a different approach—one that limits the types of 

remedies that we will recommend the Commission accept. This means moving away from what 

Commissioner Slaughter and Chair Khan recently called remedies with “numerous, complicated, 

and long-standing entanglements.”45F

46 While this statement was recent, in many ways this change 

has been a long time coming. 

44 See Remarks of Principal Deputy Assistant Attorney General Doha Mekki of the Antitrust Division, Department 

of Justice, Mercatus Center Second Annual Antitrust Forum: Policy in Transition, at 3 (Jan. 26, 2023), 

https://www.justice.gov/opa/speech/principal-deputy-assistant-attorney-general-doha-mekki-antitrust-divisiondelivers. 45 FED. TRADE COMM’N, DISSENTING STATEMENT OF COMMISSIONER PAMELA JONES HARBOUR CONCERNING 

GOOGLE/DOUBLECLICK, FTC FILE NO. 071-0170 (Dec. 20, 2007), https://www.ftc.gov/legal-library/browse/casesproceedings/public-statements/dissenting-statement-commissioner-harbour-matter-googledoubleclick. 46 FED. TRADE COMM’N, NO. 1710068, STATEMENT OF COMMISSIONER REBECCA KELLY SLAUGHTER JOINED BY 

CHAIR LINA M. KHAN IN THE MATTER OF LINDE AG; PRAXAIR, INC.; AND LINDE PLC (2022),

HTTPS://WWW.FTC.GOV/SYSTEM/FILES/FTC_GOV/PDF/RKS-STATEMENT-ON-LINDE-PRAXAIR-%281710068%29-

JOINED-BY-CHAIR-KHAN-FINAL.PDF. 
11 

Over the years, the FTC, as well as independent researchers and scholars, have examined 

the effectiveness of FTC remedies that allowed otherwise illegal mergers to go forward.46F

47 Those 

deep dives revealed that divestitures have not worked nearly as well as we had hoped, and 

definitely not as well as was necessary to prevent the illegal mergers from undermining 

competition. For example, a 2017 FTC report noted that about one-third of FTC remedies either 

failed outright or took much too long to return the affected markets to their pre-merger state.47F

48

The study also found that divestitures of anything less than ongoing businesses were much more 

likely to fail.48F

49 A review of academic research on the adequacy of proposed remedies reveals 

concern and skepticism over efforts to fix—rather than block—anticompetitive mergers.49F

50 I 

would also note that various studies have also found that mergers themselves on average 

underperform relative to expectations of the parties and frequently do not even create value.50F

51 

Based on our own experience and study, there is a clear path to avoiding these welldocumented pitfalls. The Bureau of Competition will only recommend acceptance of divestitures 

that allow the buyer to operate the divested business on a standalone basis quickly, effectively, 

and independently, and with the same incentives and comparable resources as the original owner. 

This type of remedy has a better track record of success and a low risk that it will not maintain or 

restore the intensity of premerger competition.51F

52 We will no longer consider remedies where 

there is heightened risk of failure. These include proposals of less than standalone business units, 

or where there are forward-looking entanglements between the buyer and seller, such as supply 

agreements, or where there is no strong and independent buyer. We also very strongly disfavor 

behavioral remedies because not only are they very difficult to enforce, but also because they 

never seem to work. 

47 See, e.g., John E. Kwoka Jr., Does Merger Control Work? A Retrospective on Enforcement Policy, Remedies, and 

Outcomes, 78 Antitrust L.J. 619, 641 (2013); John E. Kwoka & Diana L. Moss, Behavioral Merger Remedies: 

Evaluation and Implications for Antitrust Enforcement, 57 ANTITRUST BULL. 979, 996 (2012).

48 FED. TRADE COMM’N, THE FTC’S MERGER REMEDIES 2006-2012: A REPORT OF THE BUREAUS OF COMPETITION 

AND ECONOMICS 18 (2017), HTTPS://WWW.FTC.GOV/REPORTS/FTCS-MERGER-REMEDIES-2006-2012-REPORTBUREAUS-COMPETITION-ECONOMICS. 49 Id. at 5.

50 See, e.g., Steven C. Salop & Jennifer E. Sturiale, Fixing “Litigating the Fix,”

(2022), https://scholarship.law.georgetown.edu/facpub/2470. 51 See, e.g., Michael A. Hitt, et al., Creating Value Through Mergers and Acquisitions: Challenges and 

Opportunities, in THE HANDBOOK OF MERGERS AND ACQUISITIONS 71, 71 (David Faulker, Satu Teerikanga, & 

Richard J. Joseph eds.) (“Several studies have shown that, on average, the value created by M&As varies closely 

around zero.”), 

https://epublications.marquette.edu/cgi/viewcontent.cgi?article=1123&context=mgmt_fac&httpsredir=1&referer=; 

How Mergers Go Wrong, THE ECONOMIST (July 20, 2000), https://www.economist.com/leaders/2000/07/20/howmergers-gowrong?utm_medium=cpc.adword.pd&utm_source=google&ppccampaignID=17210591673&ppcadID=&utm_camp

aign=a.22brand_pmax&utm_content=conversion.directresponse.anonymous&gclid=CjwKCAiAioifBhAXEiwApzCzto3RNb2HQs9xk9a8TorYbv5bw_SAjccJV5gYdZgfOpSLWYoq0jMGRoCUA8QAvD_BwE&gclsrc=aw.ds (“One report by KPMG, a 

consultancy, concluded that over half of them had destroyed shareholder value, and a further third had made no 

difference.”).

52 See THE FTC’S MERGER REMEDIES 2006-2012, supra note 45, at 5.
12 

What this means for the Bureau is that we are not going to engage in extended 

negotiations that sometimes drag on for months as the parties attempt to avoid a fulsome remedy 

involving a standalone business. When we do engage in settlement negotiations, staff will be 

setting and enforcing deadlines for the parties to respond with credible offers, and the Bureau 

will recommend that the Commission strictly enforce all terms in its remedial orders. And we are 

already doing that. Just last week we filed a contempt action against “Pharma Bro” Martin 

Shkreli for not complying with the requirements of the court order we got against him, banning 

him for life from the pharmaceutical industry.52F

53 While this involves a conduct matter and not a 

merger case, it still shows the aggressive approach we are taking when it comes to order 

enforcement. 

This change in our approach to merger remedies is necessary so that the Agency does not 

saddle consumers with the harmful effects of a merger that goes forward with an ineffective 

remedy. Alternatively, the Commission may avoid this risk altogether and move to block a 

merger. This approach is consistent with purpose of Section 7: to protect consumers and the 

public from mergers whose effect “may be substantially to lessen competition or tend to create a 

monopoly.” 

As one of my predecessors, Bill Baer (who is sitting with us right here in the audience) 

has said, mergers that are illegal in any market should not make it out of the boardroom, 

period.53F

54 This statement is just as correct today as it was when first coined. Companies interested 

in merging should assess their antitrust risk—including the risk that the agency will move to 

block the deal—before moving ahead with a proposed deal. Executives should not presume that 

the FTC will agree to piecemeal divestitures that would allow the remainder of the merger to 

proceed. The FTC has neither the resources nor the mandate to function as an industrial planner. 

Therefore, parties should expect the agency to be skeptical and risk averse when considering 

offers to settle in our merger investigations. 

Thank you. 

53 Proposed Civil Contempt Order, Fed. Trade Comm’n v. Vyera Pharms., LLC, Case No. 1:20-cv-00706 (Jan. 20, 

2023 S.D.N.Y.); Press Release, Fed. Trade Comm’n, FTC Asks Federal Court to Hold ‘Pharma Bro’ Martin Shkreli 

in Contempt (Jan. 20, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-asks-federal-courthold-pharma-bro-martin-shkreli-contempt (“The FTC will not hesitate to deploy the full scope of its authorities to 

enable a comprehensive investigation into potential misconduct.”).

54 Bill Baer, Assistant Att’y Gen, U.S. Dep’t of Justice, Assistant Attorney General Bill Baer of the Antitrust 

Division Testifies Before Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights

(Mar. 9, 2016), https://www.judiciary.senate.gov/imo/media/doc/03-09-16%20Baer%20Testimony.pdf (stating that 

in an effort to combat the “historic levels” of global mergers and acquisitions, the DOJ challenged the merger of 

“the nation’s two largest cinema advertising networks” which was “representative of an anticompetitive transaction 

that never should have made it out of the boardroom”).