FTC’s decisions would be reviewable by federal courts of appeal.
35
In the ensuing years,
Congress has conducted vigorous oversight of the FTC and the courts have not hesitated to
review Commission decisions.
36
Congress intended for the FTC to be entitled to deference from the courts as an
independent, expert agency.
37
Over the years, courts have consistently held that FTC
determinations as to what practices constitute an unfair method of competition deserve “great
weight,”
38
recognizing that the Commission is an expert agency, rather than “a carbon copy of
the Department of Justice.”
39
Even when courts have rejected the Commission’s factual conclusions, they have
consistently reaffirmed the scope of its Section 5 authority.
40
For example, Ethyl, Boise, and
OAG cited prior decisions of the Supreme Court that affirm the distinctive scope of Section 5,
41
but ultimately found that the particular facts at issue lacked evidence of unfairness, either “some
indicia of oppressiveness”
42
or some evidence that the conduct tended to negatively affect the
market.
43
All three appellate decisions reiterated the well-accepted principle that the Commission
“is not confined to [the] letter” of the antitrust laws, and that “[i]t may bar incipient violations of
the FTC accountable though the budgetary, appointment, and oversight processes, and through numerous statutory
enactments and amendments relating to the FTC’s powers over the course of the hundred-plus years since the
passage of the Federal Trade Commission Act.
35
15 U.S.C. § 45(b). Respondents in adjudicative proceedings may receive judicial review of the Commission’s
decision in their circuit of residence or any circuit where they committed the conduct underlying the alleged
violation: an unusually expansive form of judicial oversight. See, e.g., J. Thomas Rosch Commissioner, Fed. Trade
Comm’n, Three Questions About Part Three: Administrative Proceedings at the FTC, Remarks Before the American
Bar Association Section of Antitrust Law Fall Forum, Washington, D.C. 18 (Nov. 8, 2012),
https://www.ftc.gov/sites/default/files/documents/public_statements/three-questions-about-part-three-administrative-
proceedings-ftc/121108fallforum.pdf.
36
See William E. Kovacic, The Federal Trade Commission and Congressional Oversight of Antitrust Enforcement,
17 T
ULSA L.J. 587, 623–27 (1982). See also Ethyl, 729 F.2d at 137; Boise Cascade Corp. v. Fed. Trade Comm’n,
637 F.2d 573, 581–82 (9th Cir. 1980); Official Airline Guides, Inc. v. Fed. Trade Comm’n (OAG), 630 F.2d 920,
927 (2d Cir. 1980).
37
S. REP. NO. 63-597 at 11, 22.
38
OAG, 630 F.2d at 927 (quoting Cement Institute, 333 U.S. at 720); Atlantic Refining Co., 381 U.S. at 368; Fed.
Trade Comm’n v. R.F. Keppel & Bro., Inc., 291 U.S. 304, 314 (1934). See also Ind. Fed’n of Dentists, 476 U.S. at
455; Texaco, 393 U.S. at 226; Motion Picture Advert. Serv. Co., 344 U.S. at 396.
39
Fed. Trade Comm’n v. Dean Foods Co., 384 U.S. 597, 618–19 (1966) (Fortas, J., dissenting). See also 51 CONG.
R
EC. 12146 (statement of Sen. Henry Hollis) (observing that the DOJ would be able to focus on “the great task of
prosecuting suits for the dissolution of monopolies, leaving to the trade commission the important service of
policing competition, so as to protect small business men, keep an open field for new enterprise, and prevent the
development of trusts”).
40
See, e.g., Ethyl, 729 F.2d at 128; Boise, 637 F.2d at 573; OAG, 630 F.2d at 920.
41
Boise, 637 F.2d at 581; Ethyl, 729 F.2d at 136–37; OAG, 630 F.2d at 927.
42
Ethyl, 729 F.2d at 139 (holding that “before business conduct in an oligopolistic industry may be labelled “unfair”
within the meaning of § 5 a minimum standard demands that, absent a tacit agreement, at least some indicia of
oppressiveness must exist”); OAG, 630 F.2d at 927–28 (finding that the monopolist had “no purpose to restrain
competition or to enhance or expand his monopoly, and [did] not act coercively”).
43
Boise, 637 F.2d at 581 (finding that “without proof of anticompetitive effects” it could not assume that there was a
“deliberate restraint on competition”). Boise’s applicability to cases outside the realm of delivered pricing is limited
– the court’s decision was driven by the Commission’s inconsistent position on delivered pricing practices in prior
statements, its shifting litigation strategy, and the Commission’s failure to meets its own standard. Id. at 575–77,
582.
7