"Competition Policy in Its Broadest Sense": Michael Pertschuk's Chairmanship of the Federal Trade Commission 1977-1981

By Kovacic, William E. | William and Mary Law Review, March 2019 | Go to article overview

"Competition Policy in Its Broadest Sense": Michael Pertschuk's Chairmanship of the Federal Trade Commission 1977-1981


Kovacic, William E., William and Mary Law Review


TABLE OF CONTENTS  INTRODUCTION                                                        1271   I. MAKEOVER: THE FTC FROM 1969 TO THE PERTSCHUK CHAIRMANSHIP      1274      A. The Nader and ABA Reports                                   1275         1. Institutional Implications of the Suggested Reforms      1278         2. Deconcentration: A Focal Point for Expanded Enforcement  1279      B. The FTC's Antitrust Agenda Before the Pertschuk             1282         Chairmanship         1. Concentrated Industries: Dominant Firms and Collective   1283            Dominance         2. Horizontal Conduct                                       1285         3. Distribution Practices                                   1285         4. Notable Qualitative Features                             1286      C. The Consumer Protection Agenda                              1288      D. The Administrative and Human Resources Infrastructure       1291  II. Two SPEECHES                                                   1292      A. Boston: "Competition Policy in Its Broadest Sense"          1293         1. The Cures                                                1295      B. Atlanta: "The Unchartered Territory of Competition Law"     1298 III. THE PERTSCHUK PROGRAM                                          1303  IV. A CRITICAL ASSESSMENT                                          1307      A. Poor Historical Awareness                                   1311      B. Lack of Political Awareness                                 1315      C. Poor Awareness of Policy Implementation Prerequisites       1317   V. POSSIBLE IMPLICATIONS FOR A MAJOR REDIRECTION OF ANTITRUST     1325      ENFORCEMENT CONCLUSION: IMPLICATIONS FOR A NEW OVERHAUL OF U.S. COMPETITION POLICY                                                              1332 

INTRODUCTION

Among competition and consumer protection regulators, the U.S. Federal Trade Commission (FTC) is perhaps the most intriguing. The FTC's extraordinarily elastic mandate--including the power to ban "unfair methods of competition" (1) and "unfair or deceptive acts or practices," (2) and its diverse portfolio of policy making tools' (3)--gives the FTC a seemingly unmatched capacity to study and remedy a multitude of economic problems. (4) Since the FTC's creation in 1914, these institutional features have placed the agency in the center of debates about the future of U.S. competition and consumer protection policy. (5)

Today the FTC is again in the spotlight. Various commentators have urged that the FTC dramatically expand its efforts to apply its distinctive powers. (6) The suggested agenda for the FTC includes measures to reduce excessive levels of industrial concentration, to arrest abusive behavior by dominant enterprises, to protect the interests of small and medium enterprises, and to achieve a range of social policy objectives beyond the promotion of economic efficiency. (7) To some observers, the FTC's scalable mandate makes it the preferred vehicle for a fundamental reorientation of competition and consumer protection policy. (8)

In the late 1960s and in the 1970s, similar calls for action helped spur ambitious applications of the FTC's competition and consumer protection powers. (9) As the FTC's chairman from May 1977 to February 1981, Michael Pertschuk exemplified the FTC's determination to exercise the full potential inherent in its mandate. (10) Pertschuk came to the FTC after a long, influential career as a congressional staffer. (11) As FTC chairman, he urged the Commission to embrace a view of "competition... in its broadest sense" and to apply the agency's powers expansively. (12)

The program conceived by Pertschuk and his predecessors at the FTC in the late 1960s and in the 1970s was breathtaking in its aims and means. The agency achieved some litigation and rulemaking successes, and introduced policies that have had enduring value. (13) At the same time, the FTC's program of the 1970s generated many failed cases and rules. …

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