//  12/21/18  //  In-Depth Analysis

Take Care is pleased to present a series of posts offering thoughts on how Congress might address key issues in antitrust law.

It’s become commonplace on left, right, and center to recognize that we are now in an era of monopoly power. In sector after sector of the economy, markets are concentrated into a smaller and smaller number of players. The question is what to do about it. Elsewhere, I have offered a variety of major structural reforms to antitrust law and policy – ranging from taking power to set antitrust policy away from courts to transforming the Federal Trade Commission into a single-director agency. Here, I want to draw attention one of these important reforms: reviving industry-wide investigations.

For many years in the early to mid-twentieth century, the Federal Trade Commission conducted investigations of entire sectors of the economy in order to identify abuses of power. In Section 6(a) of the FTC Act, Congress gave the agency the power to “gather and compile information” and “investigate” the practices of any corporation engaged in commerce.

The FTC used this power in a variety of sectors of the economy, producing massive reports that would inform policymaking. In a paper for the American Antitrust Institute, Paul Pautler describes these reports as “typically painstakingly detailed descriptions of the structure and business practices of a particular firm or industry.”

The reports, particularly some of those done in the early years, appeared to be undertaken to examine and expose particular perceived abuses. The reports were based upon interviews, depositions, and financial and marketing documents obtained under subpoena power. They often contained a wealth of descriptive accounting information on ownership patterns, costs, prices, production, and profits.

The FTC’s investigative reports were also long. The Utilities Corporations Report was 95-volumes. The Chain Stores report was 33-volumes. And in spite of (or perhaps because of) their length and thorough nature, they had a big impact. Paulter notes that investigations frequently pushed Congress to pass new statutes, including the Webb Pomerene Export Trade Act, the Packers and Stockyards Act, the Public Utility Holding Companies Act, the Natural Gas Act, and the Federal Power Act, among others.

Over time, however, the FTC’s investigations power has atrophied. Today, the Bureau of Economics within the FTC is the heir to the old investigators, but it offers economic research and data analysis – not in-depth, sector-wide investigations. This research is important, but the absence of major, sector-wide investigations is a problem because sector after sector of the economy faces concentration problems and allegations of unfair competition practices. Tech platforms – Google, Facebook, Amazon – are perhaps the most prominent. But other sectors are also often criticized: drug manufacturers, airlines.

To the extent they can do so on their own, the FTC should revive its investigative powers and start conducting significant sector-wide investigations. If the FTC can’t, won’t, or doesn’t have the resources, Congress should reinvigorate those powers by transforming the Bureau of Economics into a broader Bureau of Economics and Research. This office should be headed by a veteran investigator – perhaps from one of Congress’s oversight committees or the FBI – and should be staffed with a diverse group of professionals who can analyze an entire industry from every perspective. There should be accountants, lawyers, economists, historians, technologists, sociologists, behavioral psychologists, and so on.

These investigations would culminate in sector-wide reports that could have a big impact. They could inform merger approval decisions, enforcement actions, and also help Congress determine what legal reforms are necessary to rescue market competition from our age of monopoly capitalism.


The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

The Fight for Contraceptive Coverage Rages in the Time of COVID-19

5/6/20  //  Commentary

Even the Supreme Court has been required to take unprecedented steps by closing the building, postponing argument dates, and converting to telephonic hearings. Those impacts should be reflected in all aspects of the Court’s work, including the decisions it renders for the remainder of this term.

Take Care

Are There Five Textualists on the Supreme Court? If So, They’ll Rule for Transgender Workers.

5/6/20  //  Commentary

The Title VII cases before the Court present a fundamental question: are there really five textualists on the Court? We’ll find out soon.

Take Care