There are periodic calls for the Federal Trade Commission (FTC) to supplement ex post antitrust enforcement with ex ante competition rulemaking under § 5 of the Federal Trade Commission Act (FTC Act) to address competition problems that are especially hard to reach through adjudication in certain markets. In this paper, I make a case for competition rulemaking and for boldness on the part of the FTC. First, while courts have rarely treated § 5 as a distinct source of competition liability, the provision in fact extends beyond the boundaries of the principal antitrust laws, the Sherman and Clayton Acts. Additionally, rulemaking has merits, relative to adjudication, that make it a useful policy tool, particularly in markets served by digital platforms. Second, though rulemaking skeptics have contended otherwise, I argue that, despite its terseness and generality, § 6(g) of the FTC Act provides clear authority to the FTC to engage in both procedural and substantive rulemaking. This construction of § 6(g) was endorsed by the D.C. Circuit Court of Appeals in National Petroleum, and that case has been left undisturbed by subsequent legislative action by Congress with respect to competition (or “unfair methods of competition” or UMC) rulemaking. Furthermore, despite judicial trends toward circumscribing agency discretion and the Supreme Court’s 2021 AMG decision, I argue that the agency’s broader definition of § 6(g) would likely continue to enjoy Chevron deference. Similarly, while the nondelegation doctrine will likely be tightened given tendencies of the majority of the current Supreme Court, it seems doubtful that competition rulemaking pursuant to § 6(g) would be categorically deemed unconstitutional even under Justices Neil Gorsuch and Brett Kavanaugh’s suggested alternative tests.Third, from a policy and strategic perspective, overcaution comes with downsides: using rulemaking to make only technical adjustments or refinements of existing doctrine is unlikely to address the intractable market problems that seem to elude ex post antitrust enforcement. Also, predicting judicial reaction to agency “overreach” is difficult, and I argue against being overly reactive to it. Using two well-known instances of the Securities and Exchange Commission (SEC) promulgating rules that were unabashedly intended to, and did, neutralize problematic judicial interpretations of insider trading statutes [in U.S. v. Chiarella and U.S. v. Chestman] and suffering no judicial backlash, I argue that such concerns may be overstated. While competition rulemaking should not be used to repudiate any judicial decision with which an agency disagrees, these two examples show there is precedent for taking bolder action in exceptional and appropriate circumstances. Finally, the famous Cigarette Rule -- technically a “failure” in that it never went into effect but is in fact uniformly recognized as a resounding FTC success because it spurred legislation by Congress -- illustrates the potential outsize benefits of pushing the limits so long as the agency’s rulemaking is well-informed by its expertise and is backed by strong data and other reliable evidence
