In some ways, the U.S. competition policy system resembles the passenger rail transportation network between Washington, D.C. and Boston, Massachusetts. A state-of-the-art rail system ought to cover the distance between Washington, D.C., and New York City in 60 minutes or so. The actual journey on the fastest passenger train takes about three hours. Rolling stock for an hour-long journey is readily available, but inadequate roadbeds and cramped tunnels force modern trains to slow to a relative crawl at several points. Infrastructure weaknesses degrade system performance.
There is no shortage in the United States of high-powered substantive policy proposals for antitrust enforcement, yet these measures must run on the institutional equivalent of the existing Northeast Corridor rail infrastructure. From time to time, the United States has carried out major upgrades of its competition policy institutional framework. Despite these measures, and the occasional blue ribbon panel report, there has been an intriguing contentment with the U.S. institutional regime and its complex architecture. Where some see a distressing lack of coherence, others revel in the system’s extraordinary multiplicity and fragmentation.
Several forces may disturb the contentment. The first is the federal judiciary, which seems inclined to revisit longstanding assumptions about the administrative state. In several cases now in litigation, the Federal Trade Commission faces formidable challenges to its structure and operations. This is a moment of peril for the FTC. One or more of the pending litigation matters may make its way to a Supreme Court, whose recent decisions foreshadow a tough look at the FTC’s institutional framework and the larger U.S. system of regulatory agencies.
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