Into the Amazon: Clarity and Transparency in FTC Section 5 Merger Doctrine

Authors

Christina C. Ma

Document Type

Article

Abstract

(Excerpt)

Part I of this Article provides a description of the enforcement procedures available to the DOJ and the FTC and of the existing standards guiding enforcement. Part II discusses how agency settlements and greater court deference to the agencies has changed the landscape of merger enforcement, raising transparency and accountability concerns. These concerns are magnified within the FTC because of its administrative proceeding and section 5 powers, ultimately providing the FTC with greater opportunity to shape merger law. Despite the expansive discretion available to the FTC, section 5 case law is sparse. Part III tracks early attempts to broaden the scope of section 5 through the courts. It concludes by examining recent judicial limitations on section 7 and, subsequently, section 5, providing justification for an independent section 5 doctrine. Part IV will suggest that while section 5 may in theory be more expansive than section 7, the FTC must provide clearer guidance before courts accept independent section 5 liability and must apply section 5 doctrines to all industries to ensure fairness in the review process. Part IV proposes that the FTC establish its own merger guidelines, delineating between mergers targeted by section 5 and those targeted by section 7.