Chevron Deference and the FTC How and Why the FTC Should Use Chevron to Improve Antitrust Enforcement

Abstract

The FTC does not promulgate antitrust rules and has never asked a court for Chevron deference in antitrust litigation.  This Note addresses these omissions and argues that the FTC should undertake notice-and-comment rulemaking for the express purpose of attaining Chevron deference.  More than a pragmatic litigation strategy, this approach will allow the FTC to properly express its expert opinions to generalist courts and, in this way, form an optimal antirust regime.

The central step in this argument is to prove that Chevron deference is available to the FTC in its antitrust role.  This question, while occasionally raised, has never been fully examined.  Does the common law nature of antitrust undermine the FTC’s claim?  How does DOJ enforcement change the scope of section 5 delegation?  This Note provides the first in-depth assessment of these questions and finds that the statutory text, judicial precedent, legislative history, and normative antitrust goals all confirm the suitability of Chevron deference to formal FTC interpretations.

Many thanks to Professor Peter Strauss for his interest and insight, and to Professor Scott Hemphill for his antitrust advice. The author would also like to thank Bettina Liverant, Ni Qian, and Ravi Bhagat for their support, and the staff members and editorial board of the Columbia Business Law Review for their diligence and attention to detail.