Policing Anticompetitive Practices and Protecting the Competitive Process Through Adjudication vs. Rulemaking

This chapter examines whether the US Federal Trade Commission should be pursuing any aspect of its competition enforcement mission through substantive rulemaking. Assuming, for the sake of argument, that the agency has the requisite authority to engage in competition rulemaking, the question on the table is whether it should do so, in addition to or in lieu of case-by-case adjudication in its administrative tribunal and in the courts. In answering this question, three practical considerations loom large: (1) developing an evidentiary record to support the finding of a violation of US antitrust law, (2) providing due process to those targeted by the agency for enforcement, and (3) fostering alignment with the US Department of Justice’s Antitrust Division and the courts in the articulation and evolution of US antitrust policy. Important lessons relating to each of these considerations can be drawn from the agency’s enforcement program in the 1960s and 1970s against the spate of vertical mergers in the cement industry