FTC Sheds a Little Light


The Federal Trade Commission has cracked open, ever so slightly, a window into its usually top-secret investigations.

The unveiling started three months ago when the agency chose to issue a statement announcing that Walgreens Boots Alliance and Rite Aid Inc., facing a tough antitrust review of their planned merger, had pulled their papers and would announce a revised deal. Sept. 18 is the deadline for the FTC to make a decision on the new transaction.

That public relations strategy continued last month when the FTC took an unusual step in making a public statement about its swift approval of the Amazon Inc. and Whole Foods Market Inc. merger. The FTC’s comments fell short of fully explaining why it didn’t pursue an in-depth investigation (which I blogged about here), but the statement still was out of the ordinary for the typically opaque agency.

Then the FTC last week disclosed it has opened an investigation into the massive data breach at credit reporting agency Equifax, Inc. Enforcement agencies as a rule don’t confirm investigations even exist. But in this case, a government spokesman cited “intense public interest and the potential impact of this matter” as justification for breaking with tradition and acknowledging the Equifax probe.

These glimmers of transparency, however small, offer an overdue government response to the increased public attention to antitrust and consumer protection issues. Whatever the reason, keep them coming, with even more information if possible. It only helps practitioners and the policy community understand what’s going on.

We got a few more clues about the FTC’s thinking in regards to the Amazon-Whole Foods deal last week when Bruce Hoffman, the acting director of the FTC’s Bureau of Competition, briefly revisited the case while speaking on a panel at Georgetown Law School.

Hoffman said concerns raised by the public about the Amazon-Whole Foods deal, while potent, can’t be addressed in a merger review. Rather, he said an investigation into the online retailer’s conduct should occur later if it's warranted.

“If these are the real issues, that’s the appropriate vehicle, not merger law,” he said.

He said earlier that the agency “always has the ability to investigate anticompetitive conduct should such action be warranted.” Some analysts and news organizations interpreted the comment to mean that the agency’s still paying attention to how the companies behave, even if it isn’t looking at the merger.

Now it’s incumbent on the agency to follow through, and maybe even tell us what it finds.

What’s Happening This Week

EU Commissioner for Competition Margrethe Vestager comes to Washington. Monday she’ll be speaking about the EU’s perspective on antitrust at the American Enterprise Institute and field questions from reporters afterward.

The Federalist Society is hosting a conference call around the same time as Vestager’s appearance to discuss the European Commission’s opinion in its competition case against Google.

Also occurring Monday: the FTC’s deadline to make a decision on whether to approve Walgreens and Rite Aid’s revised deal or extend the investigation into a second phase.

The Tennessee Department of Health commissioner and attorney general will decide by Tuesday whether to grant a certificate of public advantage to merging hospitals Wellmont Health System and Mountain States Health Alliance. The FTC has opposed the deal in public statements and reports, but if the state allows the merger, it would be difficult for the agency to bring a lawsuit against it.

Quote of the Week

“Perhaps the most troubling assumption here is that we, as regulators, can divine how these new technologies should develop and where and how they should be used. Ask yourselves whether antitrust enforcers are truly well qualified to pick the winners and losers in the modern economy.”

-- FTC Chairman Maureen Ohlhausen in a speech Sept. 12.

Want to be alerted to the next post? Let us know and you’ll be added to the mailing list: lcrampton@bna.com. Also feel free to send tips and takes.