U.S. Federal Trade Commission building in Washington, D.C. Photo: Diego M. Radzinschi/ALM

The head of the Federal Trade Commission's Bureau of Competition told lawmakers Tuesday that the agency's recent inquiries into Big Tech are part of an effort to reverse any possible errors in allowing mergers among the sector's largest firms to move forward.

"We get things wrong, absolutely," Bruce Hoffman, the director of the Bureau, testified before a subcommittee of the Senate Judiciary. "We're never going to get things 100% right. But when we determine that we're getting things wrong, we work really hard to try to fix that and get it right. And that's what we're trying to do now. I'm not saying it's necessarily the case that we had all this wrong. I don't know. That's what we're looking at."

Hoffman's remarks came in response to a question from Democratic Sen. Richard Blumenthal of Connecticut who asked if the FTC had been making predictions that have systematically led to less aggressive antitrust enforcement against the tech industry. Blumenthal, a former prosecutor, said that in prior testimony on the FTC's $5 billion settlement with Facebook in July, he saw an attitude of "If it looks tough, don't do it."

"I know as a former prosecutor, if you're not willing to try cases, you're not going to get good settlements," Blumenthal said.

Bruce Hoffman. Courtesy photo

Hoffman pushed back, saying that, overall, he was proud of the FTC's enforcement history. And when the agency does mess up, Hoffman said, the FTC dedicates itself to fixing it. As an example, he pointed to the agency's pursuit of anti-competitive hospital mergers. The FTC, Department of Justice and states lost most of the hospital merger cases they tried in court for about a decade, he said.

"We eventually reversed that by doing things similar to what we're doing today," he said. At the time, the agency deployed a hospital merger retrospective project run by economists, launched a merger litigation task force and presented a new way to analyze data in court. Now, the FTC has an unbroken string of hospital merger litigation challenges, he said.

Blumenthal, who helped lead the government's antitrust case that began in the '90s against Microsoft, also asked if Hoffman saw parallels between that case and its current probes.

"Without talking about any specific investigation, you can certainly say that the kinds of allegations that you might read about in the Wall Street Journal or anywhere else sound very similar to the kind of conduct and the kind of basic fact pattern in the Microsoft case," Hoffman said.

The hearing came amid lawmakers expressing concerns over a lack of coordination between the FTC and antitrust enforcers at the Department of Justice. Republican Sen. Mike Lee of Utah kicked off Tuesday's hearing by referring to last week's testimony with the heads of the FTC and the DOJ's Antitrust Division saying that "it makes no sense, no sense at all, to split antitrust enforcement between two federal agencies."

Democratic Sen. Amy Klobuchar of Minnesota, who proposed antitrust legislation in August, asked Diana Moss, president of the American Antitrust Institute in Washington, D.C., if she would adjust the evidentiary standard for potentially anti-competitive acquisitions. Moss said the evidentiary standard of civil preponderance of evidence should be lowered, and there should be a burden shift.

"It's really difficult for the government to prove that a small startup firm but for the acquisition would have grown into a viable rival," she said. "That's a very high wall to scale when you're dealing with an enormous platform with all these ecosystem and network effects, and you're dealing with small startups that can barely get their foot in the door."

Hoffman said he wouldn't rule out the policy shift, but argued that it raises serious questions. "For example, would this be a standard that would apply to all acquisitions of any startup by anybody or would it only be by tech companies?" he asked. "We don't know what the tech companies are in the sense [there] is not a single industry into which they fall. So, even writing a definition that would cover them to establish the presumption would be challenging. And then if you establish a presumption that all such acquisitions are potentially anti-competitive, it's unclear to me what effects that would have on, for example, the venture capital markets."