George Mason lawprof and former Federal Trade Commission commissioner Joshua Wright, who specializes in antitrust, guestblogging at Daniel Fisher’s on FTC v. McWane:
Proving antitrust harm with rigorous economic evidence is hard. The FTC would prefer to avoid that route and instead favor an approach where lower courts would just defer to its “expert” judgment and conclude that whatever business practices the agency says are anticompetitive are in fact so. This outcome is unsurprising given that the FTC has ruled for itself in 100 percent of its cases over the past three decades – though it is reversed more often than the decisions of federal court judges. So much for unbiased rigor and expertise. But the Supreme Court has consistently rejected the view that the FTC or any antitrust plaintiff can make out a case with a stack of complaints from disgruntled rivals. Instead, the Supreme Court has made clear that the antitrust rules applied to the behavior of a single firm acting alone – that is, a firm alleged to have monopolized an industry on its own rather than joined a cartel with rivals – are to be governed by economic thinking and economic evidence instead of hand-waving and complaints from rivals alone.
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