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President Donald Trump on Jan. 23 announced his intention to nominate acting Federal Trade Commission Chairman Maureen Ohlhausen to serve as a judge on the U.S. Federal Court of Claims.
The announcement signals change may be afoot at the FTC, which has operated with multiple vacancies for almost a year. The open slots have left antitrust practitioners uncertain about the future direction of antitrust regulation.
The five-seat commission has only two sitting members, Ohlhausen and Democrat Terrell McSweeny. Both were appointed by former President Barack Obama. Ohlhausen has served as acting chairman since January 2017. Her term expires in September. McSweeny is now serving beyond her term, which expired in September 2017.
Ohlhausen said in a tweet that she will continue to serve on the FTC “until a time when I may be so fortunate as to be confirmed by the U.S. Senate.”
The White House announced in October that Trump intended to nominate antitrust lawyer Joseph Simons, a Republican, to become the next FTC chairman and consumer advocate Rohit Chopra to serve as a Democratic commissioner. Months later, the White House has yet to make formal nominations.
If Simons and Chopra are formally nominated and confirmed, Ohlhausen would revert to her former position as a Republican commissioner. If she is confirmed as a claims court judge, that would open another Republican FTC spot for Trump. McSweeny would exit the commission.
The administration needs “an actual team on the field,” said William Blumenthal, a partner at Sidley & Austin LLP and former FTC general counsel, at a Jan. 23 antitrust conference sponsored by the Heritage Foundation, a Washington think tank. He made his comments before the White House announcement about Ohlhausen.
Until then, “it’s going to be pretty tough to identify what the policy of this era really is,” he added.
The White House announcement about Ohlhausen could mean that administration officials are ready to send Simons and Chopra’s nominations formally to the Senate, which would set in motion the confirmation process. The White House on Jan. 23 sent four judicial nominees to the Senate, but Ohlhausen wasn’t among them.
It’s unclear how these various nominations will play out. Senate confirmation can take months, but lawmakers can’t even consider nominees until they are formally submitted by the president. In the short term, Ohlhausen’s potential move to the claims court could throw the already understaffed FTC into further disarray.
Another acting official said the FTC is carrying on its business as usual. “The current system is not perfect,” said Bruce Hoffman, acting director of the FTC’s Bureau of Competition, who also appeared at the Heritage conference. “But I think what we do is pretty good. It’s certainly the best we can. We are careful. We are thorough.”
Temporary positions can make it difficult to regulate. “It’s really tough to administer policy if your title is ‘acting’ and if you know you’re going to be out or may be out fairly soon,” Blumenthal said.
Practitioners are still trying to make sense of the antitrust regulators at the Department of Justice. The Senate confirmed Makan Delrahim, head of the antitrust division at the Justice Department, just a few months ago. In that time, the department has sued to stop AT&T Inc.'s proposed $85.4 billion tie-up with Time Warner Inc. Practitioners say the broader antitrust implications are unclear because the case is unusual.
The FTC and Justice Department also are under pressure from public interest advocates and congressional Democrats to expand their enforcement of competition laws.
The FTC’s acting leaders have resisted that pressure so far, saying that it would be a mistake to abandon modern antitrust principles. “We have tried other standards, and they haven’t worked,” Hoffman said.
Hoffman said the theories and legal standards used in the AT&T-Time Warner case aren’t novel. The FTC is investigating other “vertical” deals like AT&T-Time Warner that don’t involve direct competitors, he said this month.
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