UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

WASHINGTON, D.C. 20580 

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

Regarding the Issuance of Two Omnibus Compulsory Process Resolutions 

July 1, 2022 

Just over a year ago, Chair Lina Khan’s appointment gave Democrats a majority at the Federal 

Trade Commission. Two weeks later, with only five business days of notice and without the 

benefit of staff input, that new majority approved seven resolutions authorizing the use of 

compulsory process1 in several broad categories of investigations.2 These resolutions removed 

from Commission oversight an array of important and expensive investigations.3 Several weeks 

later, the majority adopted, again via a 3-2 vote and without substantial consideration, an 

additional eight blanket resolutions.4 

1 Compulsory process is the method generally used at the FTC to compel testimony, documents, or data 

from targets to an investigation and third parties. Until Chair Khan’s arrival, staff working on an antitrust 

investigation needed a Commission vote to issue a resolution specific to the investigation to authorize the 

use of compulsory requests. 

2

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

2021, 9 (July 1, 2021), https://www.ftc.gov/system/files/documents/public statements/1591554/ 

p210100wilsoncommnmeetingdissent.pdf; FTC Authorizes Investigations Into Key Enforcement 

Priorities (July 1, 2021), https://www.ftc.gov/news-events/news/press-releases/2021/07/ftc-authorizesinvestigations-key-enforcement-priorities. 

3

 Dissenting Statement of Commissioner Christine S. Wilson, supra note 2, at 9-10; 

 Dissenting Remarks of Commissioner Noah Joshua Phillips Regarding the Commission’s Issuance of 

Seven Omnibus Resolutions 1-2 (July 1, 2021), https://www.ftc.gov/system/files/documents/ 

public statements/1591634/p210100phillipsstatementomnibusresolutions.pdf 

4

 FTC Streamlines Consumer Protection and Competition Investigations in Eight Key Enforcement Areas 

to Enable Higher Caseload (Sept. 14, 2021), https://www.ftc.gov/news-events/news/pressreleases/2021/09/ftc-streamlines-consumer-protection-competition-investigations-eight-key-enforcementareas-enable. 
 

 

Given the scope of these 15 so-called omnibus resolutions,5 we asked, “what’s left?”6 The 

answer then was “not much.” Today, following the majority’s adoption of two additional 

resolutions, the answer is “virtually nothing.” 

In its statement, the majority assures us that the omnibus resolutions “will not substantially 

change the multiple layers of checks and balances that are critical to the Commission’s oversight 

of investigations.” This assertion is baffling, as these broad resolutions eliminate the only layer 

of Commission oversight concerning the use of compulsory process in the vast majority of the 

agency’s competition-related investigations. 

The justifications for these actions rang hollow at the time, and still do now. As before, the 

majority emphasizes the need for expeditious investigations, yet again it fails to produce a shred 

of evidence that the Commission’s longstanding process causes material delays. The omission is 

unsurprising; the Commission has always been perfectly able and willing to initiate timely 

investigations on a case-by-case basis, imposing little real additional cost. 

In fact, the omnibus resolutions impose costs of their own. We voted against those resolutions in 

July and September 2021, expressing our concern that removing Commission oversight failed to 

make investigations more effective but did mean less Commission input and supervision.7

 We 

further noted that those resolutions decreased accountability and created more room for mistakes, 

overreach, cost overruns, and even politically-motivated decision making.8 Those criticisms have 

been validated by developments in the intervening months, and apply equally to the resolutions 

announced today. 

The first of the new omnibus resolutions pertains to the use of compulsory process in merger 

investigations. It resembles the hastily-adopted resolution on the same topic to which we 

5

 The 15 omnibus resolutions authorize compulsory process in investigations of possible illegality 

stemming from (1) any merger subject to federal premerger notification requirements, including those 

under the HSR Act, (2) any suspected monopolization, attempt to monopolize, or conspiracy to 

monopolize, (3) any consummated merger or acquisition by an entity with a current enterprise value over 

$5 billion, (4) any simultaneous service as an officer or director of, or a contemporaneous financial stake 

in, two or more competing entities, (5) any suspected abuse of intellectual property; (6) prohibited 

conduct targeting workers or small-business operators; (7) prohibited conduct by any person or entity 

subject to an FTC administrative order; or prohibited conduct related to (8) any healthcare market, (9) any 

market with participants that provide technology platform services, (10) any algorithm or biometrics, (11) 

any marketing of goods and services on the Internet, manipulation of user interfaces, or use of email, 

metatags, computer code, or programs, (12) any good or service marketed, in whole or in part, to children 

under 18 years of age, (13) any good or service marketed, in whole or in part, to members or veterans of 

the U.S. Armed Forces and States’ National Guards, (14) any diagnosis, treatment, or government 

benefits for COVID-19, or (15) any repair restriction. 

6 See Dissenting Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson Regarding 

the Issuance of Eight Omnibus Resolutions 1 (Sept. 14, 2021), 

https://www.ftc.gov/system/files/documents/public statements/1596256/p859900njpcswomnibusdissent.p 

df. 

7 Id. 

8 Id. 
  

objected last July, when we worried that the absence of a normal level of Commission 

consideration and staff review would lead to mistakes.9

 The new omnibus resolution for merger 

investigations amends the earlier resolution by deleting language stating that the transactions at 

issue were those “subject to any federal premerger notification requirements.” Because a copy of 

the omnibus resolution accompanies civil investigative demands issued to third parties in 

connection with a merger investigation, the inclusion of this language could permit recipients to 

infer that the underlying transaction had been notified to the antitrust agencies pursuant to the 

Hart-Scott-Rodino (HSR) Act. Unless the merging parties make this information public, the 

antitrust agencies are supposed to keep it confidential. 

The language in the new resolution avoids the risk that the resolution will inadvertently disclose 

to third parties the existence of a nonpublic HSR filing. But it also expands the scope of the 

resolution, giving the green light for compulsory process in all merger investigations, not only 

those subject to notification under HSR. To initiate a long and expensive investigation into any 

stock or asset acquisition, no matter how small, a Commission vote is no longer required. 

The majority asserts that “the merger omnibus equips the FTC to expeditiously investigate even those 

deals that would otherwise fly under our radar.” Since it makes investigation no more expeditious and we 

can (and do) investigate deals that do not trigger HSR, that is simply wrong. The merger omnibus 

resolution cannot, and does not, impose new filing obligations. The agency has long had the authority to 

review deals that fall below HSR filing thresholds, and staff routinely reviews industry trade press and a 

variety of other news sources to identify potentially problematic non-reportable deals that warrant 

investigation. The Commission routinely has authorized investigations of those deals and sometimes 

pursued remedies.10 The suggestion that the merger omnibus resolution will somehow put more deals on 

our radar is, in our view, disingenuous.11 

The second omnibus resolution pertains to the use of compulsory process in non-public 

investigations of “collusive practices.” U.S. antitrust law rightfully condemns collusion to stifle 

competition by, say, fixing prices or dividing markets among competitors. The FTC should 

dedicate resources to rooting out unlawful collusion in the marketplace. But this new resolution 

also applies to conduct that is legal under well-established case law. Congress drafted Section 1 

of the Sherman Act to prohibit contracts, combinations, and conspiracies that restrain trade.12 To 

find a violation, courts require proof of agreement – i.e., proof that the competitors were not 

acting independently. In the absence of an explicit agreement, courts demand evidence of a 

9 Id.; Dissenting Remarks of Commissioner Noah Joshua Phillips, supra note 3, at 1 (“And when things 

go wrong, there will be less accountability”). 

10 See, e.g., In re Otto Bock HealthCare North America, Inc., File No. 171-0231, 

https://www.ftc.gov/system/files/documents/cases/d09378commissionfinalopinion.pdf; In re ProMedica 

Health System, Inc., File No. 101-0167, 

https://www.ftc.gov/sites/default/files/documents/cases/2012/06/120625promedicaopinion.pdf. 

11 In addition, the Commission previously issued an omnibus resolution to authorize the use of 

compulsory process for investigations of consummated transactions, which would cover most of the 

transactions referenced by the majority statement. 

12 15 U.S.C. § 1. 
 

“conscious commitment to a common scheme” beyond mere parallel conduct.13 This showing is 

important because firms in most markets cannot make rational decisions unless they take into 

account what other market participants, including their competitors, are doing or are likely to 

do.14 

The new compulsory process resolution exceeds the law’s common-sense limits by authorizing 

investigations to examine not just collusion, but firms that are “participating in . . . coordination 

in any way with any other market participant[.]” The resolution thus suggests using Section 5 of 

the FTC Act to attack conduct that the courts routinely have concluded does not violate the 

antitrust laws.15 There may be circumstances in which investigations of tacit coordination are 

appropriate, but those investigations should be authorized on a case-by-case examination of the 

facts rather than under an omnibus resolution. 

The new resolutions announced today continue an ill-advised overhaul of longstanding and wellfunctioning (and perfectly expeditious) Commission procedures that promoted transparency, 

oversight, and accountability. This overhaul remains as problematic now as it was on the day it 

began. If anything, developments in the intervening months repeatedly have validated the 

objections we voiced at the outset. We dissent. 

13 See, e.g., Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 768 (1984) (“The correct standard 

is that there must be evidence that tends to exclude the possibility of independent action by the [parties]. 

That is, there must be direct or circumstantial evidence that reasonably tends to prove that [the parties] 

had a conscious commitment to a common scheme designed to achieve an unlawful objective.”); Brooke 

Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227 (1993); Quality Auto Painting 

Center of Roselle, Inc. v. State Farm Indemnity Co., 917 F.3d 1249, 1264 (11th Cir. 2019 (“It is well 

settled in this circuit that evidence of conscious parallelism alone does not permit an inference of 

conspiracy unless the plaintiff either establishes that . . . each defendant engaging in the parallel action 

acted contrary to its economic self-interest, or offers other ‘plus factors’ tending to establish that the 

defendants were not engaging merely in oligopolistic price maintenance or price leadership but rather in a 

collusive agreement to fix prices”) (quoting Williamson Oil Co. v. Philip Morris USA, 346 F.3d 1287, 

1301 (11th Cir. 2003). 

14 As then-Judge Stephen G. Breyer once asked rhetorically, “How does one order a firm to set its prices 

without regard to the likely reactions of its competitors?” Clamp-All Corp. v. Cast Iron Soil Pipe Inst., 

851 F.2d 478, 484 (1st Cir. 1988). 

15 The Commission has used Section 5 of the FTC Act to challenge invitations to collude. See, e.g., In re 

Quality Trailer Prods., 115 F.T.C. 944 (1992); In re AE Clevite, 116 F.T.C. 389 (1993); In re Precision 

Moulding, 122 F.T.C. 104 (1996); In re Stone Container, 125 F.T.C. 853 (1998); In re MacDermid, 129 

F.T.C (C-3911) (2000); see also In re McWane, Inc., Docket No. 9351, Opinion of the Commission on 

Motions for Summary Decision at 20-21 (F.T.C. Aug. 9, 2012) (“an invitation to collude is ‘the 

quintessential example of the kind of conduct that should be . . . challenged as a violation of Section 5’”) 

(citing the Statement of Chairman Leibowitz and Commissioners Kovacic and Rosch, In re U-Haul Int’l, 

Inc., 150 F.T.C. 1, 53 (2010); InstantUPCCodes.com, File No.v 141-0036 (Aug. 29, 2014), 

https://www.ftc.gov/system/files/documents/cases/140721instantupcanalysis.pdf. In each of those cases, 

the Respondent’s conduct – inviting its competitor to collude – formed the basis for liability. In contrast, 

the use of Section 5 to investigate and challenge coordination may threaten a firm with liability when it 

has not acted, but only had a rival that copied its conduct. In addition, the omnibus resolution potentially 

authorizes an investigation into every industry that has a limited number of participants.