Greene on 40 years of FTC and Dept. of Justice regulation of Antitrust

Agency Character and Character of Agency Guidelines: An Historical and Institutional Perspective is a recent article by Hillary Greene, University of Connecticut School of Law. It appeared in the Antitrust Law Journal (2005). Here's the abstract:

Though antitrust guidelines have become commonplace, their approach was novel when first introduced. In a 1964 front-page article entitled, Industries Will Get Merger Guidelines, The New York Times observed, 'An entirely new approach to the enforcement of the antitrust laws is about to be attempted by the Federal Trade Commission.' Similarly, the American Bar Association's 1968 Antitrust Developments treatise described these first antitrust agency guidelines as a new method to advise businessmen about how the FTC would gauge the competitiveness of mergers.

In the nearly forty years since the introduction of the first merger guidelines, the federal antitrust agencies have issued numerous additional guidelines. Nearly all of those promulgated or revised over the last decade and a half have been joint efforts between the FTC and the U.S. Department of Justice. However, the agencies' respective entrances into this policymaking realm were not only separate but also distinctive.

This essay explores the FTC's evolving approach to antitrust guidelines, beginning with an overview of the general context in which the FTC first introduced guidelines as an antitrust policy tool. The FTC's merger guidelines can be roughly divided into three successive waves: industry- specific; general; and jointly promulgated with the DOJ. What emerges is a picture of guidelines as a dynamic institution along many dimensions, including content, form, and manner of promulgation. This essay explores some of the FTC's unique institutional features that likely contributed to the particular contours of the agency's various guidelines.