In July and August, we discussed the president’s role in setting antitrust policy at the Department of Justice, Antitrust Division. Specifically, we pointed out that presidents routinely face competing domestic and foreign policy challenges that require a delicate balance and flexible approach to antitrust enforcement. For example, President John F. Kennedy directed the DOJ to investigate the steel industry for price fixing because of concerns about labor strikes and monetary inflation. Likewise, President Harry S. Truman chose not to pursue criminal antitrust charges against the oil industry because of national security concerns, specifically the threat of a political coup in Iran and concerns that the Soviet Union would encroach American interests in the Middle East. Therefore, we concluded that the Antitrust Division has not historically (and should not be constitutionally) completely independent from the White House.
In marked contrast to the DOJ, the Federal Trade Commission (FTC) was conceived by President Woodrow Wilson and others and designed by Congress to operate independently from the Executive Branch because of its broad power to define business norms as a necessary consequence of its broad authority to prosecute ”unfair methods of competitions” and the adjudicatory functions carried out by the FTC’s administrative law judges and the commission itself. The Supreme Court once noted, “the commission acts in part quasi legislatively and in part quasi judicially.” Therefore, the Federal Trade Commission Act, which created the FTC in 1914 and authorized it to enforce the antitrust laws, contains a number of provisions designed to insulate the FTC from the White House.
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