It’s not often that a government agency decides to do a wholesale rethink of how to do its job. But that’s what’s happening at the Federal Trade Commission.
On Thursday, the federal watchdog tasked with protecting consumers from fraud and anti-competitive behavior kicked off a months-long series of hearings. The goal: Figuring out whether regulators need to be tougher on companies that have staked out ever-larger chunks of the markets they serve.
“The broad antitrust consensus that has existed within the antitrust community, in relatively stable form for the last 25 years, is being challenged in at least two ways,” said FTC Chairman Joseph Simons in his introduction.
Challenge number one: An emerging body of research shows that many industries have become concentrated in the hands of a few very large companies. This comes at a time when antitrust enforcement has been getting less aggressive over the past several decades. (Think airlines, for example, where four companies now control 68% of the passenger miles flown in the United States.)
Another challenge: A progressive school of activists and scholars who say that antitrust policy shouldn’t be concerned only with prices charged to consumers, but also with issues like labor standards, economic inequality and corporate influence on politics, where there’s now more evidence that industry consolidation is having an impact.
The series of hearings is modeled on a similar exercise conducted in the 1990s, when the FTC took a broad look at how globalization and technology were impacting antitrust policy, in the midst of what was then the largest wave of mergers in United States history.
The FTC is now grappling with what to do about tech giants, like Facebook and Google, that have come to dominate advertising and internet search because of a mixture of technological superiority and “network effects,” through which services become more attractive the more users they have.
“It’s not competition in the market, it’s competition for the market,” said panelist Fiona Scott Morton, an economics professor at the Yale School of Management.
Amazon, in particular, has posed a puzzle for established antitrust doctrine. It has tended to lower prices for consumers, but it is also now by far the largest portal for online shopping, which gives it enormous power over the producers that sell on its platform.
Think tanks like the Open Markets Institute and the Roosevelt Institute have argued that the FTC, along with the antitrust division of the Justice Department and other law enforcement bodies, should prevent more mergers and potentially even break up companies that appear to be exercising too much market power.
“Market concentration and market power lead to stagnant wages, fewer new businesses, and a weakened supply chain,” write Adil Abdela and Marshall Steinbaum of the Roosevelt Institute. “As a result, many participants in the economy feel their fate is out of their own hands… It’s time for the agencies to stop ignoring the problem or going out of their way to deny it exists.”
However, that point of view is far from generally accepted inside the Beltway.
President Donald Trump has lashed out at Amazon on Twitter and said on Fox News that it has a “huge antitrust problem.” But the Department of Justice’s antitrust division has publicly defended its stance of sticking to the “consumer welfare” standard rather than implementing a more expansive one that might implicate the trillion-dollar company.
The FTC’s opening panel this week featured a handful of competition and consumer protection lawyers who leaned toward maintaining the status quo. Some argued that the new “antitrust populists” want to move back to the 1960s and ‘70s, when companies were prosecuted simply for being larger and more efficient than their competitors.
“Nostalgia is misplaced,” said Tim Muris, a former FTC chairman who is now a professor at George Mason University’s Antonin Scalia Law School. “I have no desire to relive those years, and neither should you.”
Businesses, consumers, and workers have a lot to gain or lose from any change in antitrust scrutiny.
Some lobbying groups, such as the Chamber of Commerce, have filed comments supporting the “traditional” antitrust standard. Others, such as the News Media Alliance representing newspapers and online publishers, argued that online platforms are threatening their viability by controlling advertising and the distribution of information.
When asked about the claim that they might be getting close to monopoly status, the big tech firms generally say they exist in a dynamic marketplace where they could be disrupted at any time by upstart competitors. If people don’t like how Google uses their search data, the argument goes, they can switch to another search engine like DuckDuckGo, which says it protects users’ privacy.
In its public comment, Amazon encouraged the FTC to consider that technology has now diffused into all sectors, and so it wouldn’t make sense to treat tech platforms any differently than other types of businesses.
Amazon CEO Jeff Bezos also weighed in on the matter at an event in Washington Thursday. He acknowledged that all large companies should expect to be scrutinized, but he also offered a defense.
“It’s really important that politicians and others understand the value that big companies bring, and not demonize or vilify business in general,” Bezos said in remarks to the Washington Economic Club. “Nobody in their garage is going to build an all carbon fiber fuel efficient Boeing 787. It’s not going to happen. You need Boeing to do that.”