FTC Splits From Justice Dept. on Antitrust

WASHINGTON (CN) - The Federal Trade Commission on Monday said the Department of Justice is placing the interests of monopolist corporations ahead of consumers. The FTC said it "does not join or endorse" a new DOJ report on Section 2 of the Sherman Act, which the Trade Commission "would make it nearly impossible to prosecute a case under Section 2" of the federal antitrust law.

Commissioners Harbour, Leibowitz, and Rosch identified two "overarching concerns" with the DOJ report. First, while the Supreme Court has declared the welfare of consumers the primary goal of antitrust laws, the Department's report "is chiefly concerned with firms that enjoy monopoly or near-monopoly power, and prescribes a legal regime that places these firms' interests ahead of those of consumers," the FTC said in a statement.

The three commissioners added, "The Department's premises lead it to adopt law enforcement standards that would make it nearly impossible to prosecute a case under Section 2." The commissioners described the specific tests embraced by the DOJ report for a variety of conduct, such as predatory pricing, loyalty discounts, price bundling, tying, refusals to deal with rivals, and exclusive dealing.

"In almost every case," the commissioners wrote, "the Department adopts standards that are tougher - and in some cases much tougher - than existing standards as defined by Section 2 case law."

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