Andrew Ferguson and Gail Slater are leading the Federal Trade Commission (FTC) and Antitrust Division of the U.S. Department of Justice (DOJ), respectively. This is an important moment to revisit the original purpose and mandate of each agency. 

Congress created the FTC and the role of Assistant Attorney General for Antitrust to protect consumers by promoting competition, encouraging innovation, and ensuring fair markets. Yet in the last four years, agency leaders’ focus shifted towards enforcement actions that harm consumers, limit product choice, and stifle innovation—such as blocking mergers that could lower prices or accelerate life-saving technologies. Now it’s time for the FTC and the DOJ to realign with their original mission, and refocus on delivering consumer benefits by promoting choice and innovation.

The FTC and the DOJ’s Missions Were Historically Consumer-Centric

The agencies’ actions long prioritized consumer benefit, preventing monopolistic practices to ensure benefits like lower prices and increased innovation.

— Congress in 1975 passed the Consumer Goods Pricing Act “to amend the Sherman Act to provide lower prices for consumers,” which empowered the FTC and DOJ to sue companies that mandated minimum resale prices for retailers. Both agencies supported the law, with the DOJ testifying that minimum resale price maintenance raised prices paid by consumers by as much as 27%.

— When private plaintiffs tried to misuse the antitrust laws to their own benefit and the disadvantage of consumers, the FTC pushed back. In 2015, the agency filed an amicus brief arguing that manufacturers’ selling super-sized packages of their products to big-box stores – an option popular with consumers – did not necessarily violate the Robinson-Patman Act. Old cases that could be read to say otherwise were out-of-step with the Supreme Court’s holding that the Act should be interpreted consistently with other antitrust laws.    

— In a 2022 discussion with the American Enterprise Institute, then- Commissioner Noah Phillips highlighted the FTC’s long-standing reliance on a precise, evidence-based approach to antitrust enforcement. He remarked, “One of the great things about antitrust law is that it cuts with a scalpel… away from the hammer, and I think that’s a good thing.” Phillips cautioned against a shift toward blunt, overly broad regulatory measures, explaining, “Markets tend to be a lot more complex than political headlines. It’s very easy to say self-preferencing, but how that looks as a practical matter in a given case is a lot more complex than just describing the thing as a general matter.”

In fact, the FTC and the DOJ often encouraged innovation through mergers, protecting competition without stifling business and focusing on consumer impact. Deals such as Exxon & Mobil in 1999, Zillow & Trulia in 2015, and T-Mobile and Sprint in 2019 reflect the agencies’ historical, bipartisan commitment to striking a balance between preserving competition and enabling growth, a principle that has long underpinned its consumer-centric mission.

The FTC and DOJ Have Broken Previous Precedent — Attacking Conduct that Benefits Consumers

Over the past four years, the FTC and the DOJ took a markedly different approach to antitrust enforcement. They prioritized breaking up companies or blocking mergers based on their size and perceived dominance. The FTC’s 2022 Policy Statement exemplified this change, abandoning the consumer welfare standard for a vague framework aimed at conduct that may “impair the opportunities” of rivals, often without fully considering broader market dynamics or tangible consumer outcomes.

— This approach is evident in cases like the FTC’s lawsuit to break Amazon’s integrated marketplace and its block on the $24.6 billion merger between supermarket chains Kroger and Albertsons.

— In its Amazon case, the FTC denies the realities of modern commerce and disregards the “intense price competition both within and across retail channels,” as per Rosa Abrantes-Metz and Mame Maloney of the Brattle Group. As noted by Project DisCo, Amazon “actually has a smaller total position in retail than Walmart, a legacy retailer that entered the digital market, like many others, when it recognized its potential.” The project further explains that by relying on such narrow definitions, the FTC risks undermining competitive environments, potentially leading to “higher prices and fewer choices for consumers.” This concern is echoed by experts, including Adam Kovacevich of Chamber of Progress, who warn that “breaking up Amazon Prime will only raise prices for consumers.” Yet, despite these warnings, the FTC has continued to pursue its case.

— The FTC’s decision to oppose the Kroger-Albertsons merger once again reflects a stance that ultimately harms consumers and hinders innovation. As Riad Beladi, a market analyst for International Supermarket News, explained, “The scale of this merger could enable new levels of innovation in retail technology and online services, potentially reshaping how Americans shop for groceries.” Further underscoring the merger’s benefits, John Mayo, executive director of the Center for Business and Public Policy at Georgetown’s McDonough School of Business, explained that the Kroger-Albertsons merger could “lower both its distribution costs and the prices it pays wholesalers,” making the combined company a stronger competitor against larger rivals. 

— The DOJ’s lawsuit against Google exemplifies a flawed approach that neglects consumer welfare. By targeting integrated ecosystems, the DOJ risks dismantling features that consumers overwhelmingly value, such as security, privacy, and product quality.

— Boston College Law School professor Daniel Lyons highlighted that longstanding antitrust principles focus on preserving consumer welfare rather than protecting less efficient competitors. Lyons explained, “Antitrust does not require… one to reduce product quality to protect rivals.” He pointed to the DOJ’s approach in the Google antitrust case as an example, arguing that this focus on aiding competitors deviates from the agency’s historical commitment to consumer welfare, emphasizing that such actions would favor “trailing competitors at the expense of consumers.” General Counsel for TechNet Drew Hudson notes that forcing Google to sell off Chrome would harm users by reducing app quality, a concern echoed by 89% of developers who warn it would introduce security flaws and stifle innovation. 

— Representative Lou Correa (D-CA) in October 2024 urged the DOJ to tread carefully with its proposed remedies in its case against Google, warning that they would harm CA businesses. He says, “Californians have many priorities, including maintaining our lead in technology, promoting innovation, preserving jobs, and protecting national security … Any proposed remedy must ensure that workers and consumers are not harmed while incentives to innovate that enable dynamic and disruptive new products and ideas continue to thrive.” CCIA economist Trevor Wagener echoed these concerns, as his economic analysis estimates that breaking up the ecosystem could raise costs by $64 to $80 per user in the U.S. and Canada. Adding to this, the Wall Street Journal Editorial Board warned that the DOJ’s plan to mandate data sharing risks exposing sensitive user information, potentially to foreign competitors like China’s Tencent or ByteDance. Despite claims of “proper privacy safeguards,” these proposals threaten privacy, security, and product quality, ultimately leaving consumers worse off.

Experts Have Remarked That This Approach Has Unnecessarily Harmed Businesses:

— According to FTC Commissioner Phillips, the FTC has been “pulling the rug out from under honest businesses.” He continues, “With the minimum notice required by law, virtually no public input, and no analysis or guidance, this agency is removing guidance and failing to replace it—reducing clarity in the application of the law… This is bad government. This is bad policy.” 

— As former Clinton administration Treasury Secretary Larry Summers said in regards to the FTC under Khan’s administration, the agency is conducting “a war on business. [The FTC’s merger] guidelines—by moving away from an emphasis on lower prices for consumers to broader abstractions—are a substantial risk. I wish that this stepping back and offering merger guidelines had been taken as an opportunity to rationalize the policy.”

— Satya Marar of the Mercatus Center at George Mason University notes that the FTC and DOJ’s 2023 merger guidelines “fail to adequately recognize the potential of many deals to boost competition by creating entities that better serve consumers and help bring new technologies and products to market quickly.” By abandoning the likelihood standard, the guidelines make it clear that the agencies plan to pursue deals that “may theoretically reduce competition,” even in the absence of concrete evidence.

— First director of the FTC’s Bureau of Competition Tom Campbell during the Reagan administration said that throughout Khan’s administration, the agency has become “focused on the FTC becoming a government agency set on restructuring American industry. It’s not about protecting consumers from harm, but about exerting control over anything that can be called big business.”

— Former SEC Chairman Jay Clayton explained on CNBC’s Squawk Box in August 2024 that restrictive antitrust and anti-merger policies harm economic growth and consumer welfare, stating, “The idea that you’ve got to prevent mergers in order to help the consumer? I mean—grocery prices in this country have come down dramatically over the last 30 years as a result of consolidation.” A U.S. Chamber of Commerce study supports this, showing that mergers have been “associated with an average increase in industry-level R&D expenditure of between $299 million and $436 million in R&D-intensive industries,” underscoring their positive impact on innovation and economic growth.

New FTC and DOJ Leadership Comes With the Hope that the Agencies Could Return to Their Original Mission

New leadership in the shape of Chair Andrew Ferguson at the FTC and Gail Slater at the DOJ could be an opportunity to return both agencies to their original function of protecting consumers. 

The FTC’s and DOJ’s consumer-focused roots provide a clear framework: To foster innovation and competition, and lower prices. Straying from this foundation has led to a series of enforcement actions that harm consumers, limit product choice, and undermine business confidence. It is time for the FTC and the DOJ to return to this precedent:

— Antitrust laws need to focus squarely on issues of competition and steer clear of politicization, reminds former FTC chair Maureen Ohlhausen: “Using antitrust law to address non-competition factors, which may reduce competition or conflict with each other, reduces certainty and increases the risk of antitrust being used for industrial policy or political purposes.”

— “Antitrust is law enforcement, it’s not regulation,” notes former DOJ Antitrust Chief Makan Delrahim. “Proper and timely antitrust enforcement helps competition police markets… Vigorous antitrust enforcement plays an important role in building a less regulated economy in which innovation and business can thrive, and ultimately the American consumer can benefit.“

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