United States of America 

FEDERAL TRADE COMMISSION 

Washington, D.C. 20580 

Office of Commissioner 

Rebecca Kelly Slaughter 

June 6, 2023 

Richard L. Revesz 

Administrator 

Office of Information and Regulatory Affairs 

725 17th St., NW 

Washington, DC 20503 

Re: Draft for public review 

Circular A-4 Modernization Updates 

Dkt. No. OMB-2022-0014 

Dear Administrator Revesz: 

I respectfully submit this comment1

 in response to the Office of Information and 

Regulatory Affairs’s (“OIRA”) April 6, 2023 Draft for Public Review titled “Circular A-4 

Modernization Updates” (“Proposed Circular” or “Proposal”). I commend OIRA for explicitly 

recognizing the importance of considering distributional impacts of regulations and for providing 

guidance to agencies as to how to incorporate distributional considerations into our analyses of 

regulatory effects. 

I am a Commissioner at the Federal Trade Commission (“FTC”). The FTC has a dual 

mandate to protect the public from deceptive or unfair business practices and from unfair 

methods of competition. We pursue our mission using a variety of tools, including law 

enforcement, research, advocacy, and rulemaking. It is vitally important, in my view, for the FTC 

to consider distributional impacts when setting enforcement priorities and developing the law, 

including through new rules and updates to existing rules. Although the FTC, as an independent 

agency, is not subject to OIRA review for rulemaking, the Commission’s talented staff regularly 

conduct detailed economic analyses of estimated costs and benefits of potential Commission 

actions and reasonable alternatives in accordance with Circular A-4 guidance. I also believe that 

the incorporation of distributional concerns will greatly enhance the rulemaking of cabinet 

agencies that share our missions of protecting consumers and promoting competition, such as the 

Department of Transportation. Although my comment focuses on the additional of distributional 

considerations, I also encourage close collaboration with experts at the FTC and Department of 

1 The views expressed in this comment are my own and do not necessarily reflect the views of the Federal Trade 

Commission or any other Commissioner. 
 

 

Justice Antitrust Division to help inform the Proposed Circular’s consideration of competitive 

effects of regulations. 

I am committed to utilizing the FTC’s consumer protection and competition tools to 

promote equity,2 and I wholeheartedly support the Proposed Circular’s emphasis on taking up 

equity as a government-wide regulatory priority. The addition of “Promoting Distributional 

Fairness and Equity” as an explicit justification for regulation is a useful and overdue 

clarification. This consistent messaging throughout the Proposal will aid agencies’ staffs in 

writing regulations that promote equity while advancing other crucial statutory missions. 

Further, the extended discussion of weighting benefit-cost analysis provides a useful 

framework for agencies to implement in analyzing the distributional impacts of their proposed 

regulatory actions. In many, if not most, cases, regulatory actions do not benefit all groups 

equally. It is essential for agencies to recognize that a regulatory choice that appears to be netcost-justified may be harmful once the distributional impacts are sufficiently considered. It is my 

belief that regulatory action is not value-neutral—and that neither aspiring for it to be nor 

pretending that it is can make it so. I agree with the Proposed Circular’s characterization of 

benefit-cost analysis as always incorporating weights; that characterization recognizes that, in the 

absence of distributional analysis, the agency implicitly “adopts weights such that a dollar is 

equal in value for each person, regardless of income (or other economic status).”3 Such an 

assumption should not be the default. Instead, consistent with the Proposed Circular, agencies 

should be attuned to the differing impacts that their proposals and alternatives would have on 

different populations. 

Distributional regulatory analysis will facilitate conversation among agencies about how 

areas of regulation that may not obviously or facially be linked to race may in fact either 

exacerbate existing racial disparities or, alternatively, affirmatively address problems faced by 

individuals who are disadvantaged because of centuries of racism. For instance, racism is not 

often discussed in conjunction with antitrust law, but in my view antitrust law can and should be 

antiracist: Antitrust enforcers (principally the FTC, the Department of Justice, and state attorneys 

general) can strategically deploy our existing tools to address mergers and conduct that 

contribute to the systematic disadvantages facing communities of color. 

2 See, e.g., Fed. Trade Comm’n, Statement of Commissioner Rebecca Kelly Slaughter in the Matter of Liberty 

Chevrolet, Inc. d/b/a Bronx Honda (May 27, 2020) (emphasizing the importance of rulemaking to eliminating 

persistent racial disparities in auto lending), https://www.ftc.gov/legal-library/browse/cases-proceedings/publicstatements/statement-commissioner-rebecca-kelly-slaughter-matter-liberty-chevrolet-inc-dba-bronx-honda; Fed. 

Trade Comm’n, Dissenting Statement of Commissioner Rebecca Kelly Slaughter Regarding FTC v. Progressive 

Leasing (Apr. 20, 2020) (condemning the predatory and discriminatory practices of the rent-to-own industry), 

https://www.ftc.gov/legal-library/browse/cases-proceedings/public-statements/dissenting-statement-commissionerrebecca-kelly-slaughter-regarding-ftc-v-progressive-leasing; Rebecca Kelly Slaughter (@RKSlaughterFTC), Twitter 

(Sept. 9, 2020, 2:28PM) (calling for antiracist antitrust enforcement), 

https://twitter.com/RKSlaughterFTC/status/1303762105431207947. 3

 Proposed Circular at 65. 

2 
 

 

For example, case selection case be positively informed by distributional analysis. 

Imagine two unlawful mergers of healthcare firms, one that would likely raise the price of 

dialysis by 20% in a low-income area and the other that would likely raise the price of 

liposuction by 25% in a high-income area. If the Commission had sufficient resources to litigate 

only one of the mergers and failed to consider the distributional impacts, it might choose to 

litigate the one with the larger price increase. Thoughtful consideration of distributional impacts, 

however, could militate toward litigating to protect the more cost-sensitive consumers of dialysis 

services. So too for equally unlawful and harmful mergers in communities with different 

resources: Because communities of color tend to be disproportionately lower income in the 

United States, it is more difficult for them to bear increased marginal costs of healthcare or to 

overcome lack of access to products and services caused by a lack of competition.4

 These are 

simple hypotheticals to show the potential utility of analyzing distributional impacts in a lawenforcement context constrained by limited resources. 

Similar principles apply when prioritizing subjects for rulemaking and making choices 

among reasonable alternatives to achieve regulatory objectives. The first new rule under section 

18 of the FTC Act that the Commission has considered in forty years—a trade regulation rule to 

prohibit the impersonation of government and businesses—concerns a subject that affects every 

American community, but it does not affect every community equally. As the advance notice of 

proposed rulemaking notes, impersonation “scams often specifically target older consumers and 

communities of color.”5 This rather high-level distributional-impact information of the harm that 

we sought to address may be useful to the public in considering whether and how to comment, 

and it is certainly important to me as a decisionmaker who knows how arduous the rulemaking 

process can be and how stretched our staff are on other worthy endeavors. The FTC has insight 

into the likely distributional impacts of impersonation scams because of decades of law 

enforcement on the subject and the millions of reports of fraud we receive in our Consumer 

Sentinel Network database. More and better data will prove essential to fulfilling the promise of 

the Proposed Circular’s encouragement to agencies to seek out the distributional impacts of 

alternatives. The result will be better rules and a more just society. 

In addition to my praise of the Proposal’s incorporation of distributional considerations, I 

would also like to sound a brief note of caution regarding the incorporation of in-depth 

competition analyses in rulemaking, especially without the consulting the FTC or the 

Department of Justice’s Antitrust Division. I encourage other government agencies to collaborate 

with specialized enforcers, such as the Commission, early and consistently so as to minimize the 

risk that the depth of competition analyses distracts from or burden pursuit of the substantive 

benefits of rulemaking or introduces confusion or divergence from the FTC’s work. In the spirit 

4 See, e.g., U.S. Census Bureau, “Income in the United States: 2021,” fig. 2, “Real Median Household Income by 

Race and Hispanic Origin,” https://www.census.gov/library/publications/2022/demo/p60-276.html (Black 

households had a median average income of $48,297 in 2021, while white, non-Hispanic households had a median 

average income of $77,999). 

5

 Fed. Trade Comm’n, Advance Notice of Proposed Rulemaking on Impersonation of Government and Businesses, 

86 Fed. Reg. 72901, 72901 (Dec. 21, 2021), https://www.federalregister.gov/documents/2021/12/23/2021-

27731/trade-regulation-rule-on-impersonation-of-government-and-businesses. 

3 
 

of the importance of distributional considerations, the FTC’s Bureau of Competition and Bureau 

of Economics are expert at determining the degree to which potentially anti-competitive actions 

disproportionately affect specific groups and are available to provide guidance to agency 

decisionmakers accordingly. 

In closing, I thank OIRA for the opportunity to comment, and I encourage it to maintain 

the Proposed Circular’s commitment to distributional considerations as it considers further 

changes based on the comments it receives. Affirmatively seeking to bolster equity and combat 

discrimination even in its latent forms must be a high priority for federal regulators, and the 

analysis explained and encouraged by the Proposed Circular is an excellent step toward progress. 

Sincerely, 

Commissioner Rebecca Kelly Slaughter 

4