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In his first public address as chairman of the Federal Trade Commission, Timothy J. Muris said Tuesday that all merger reviews under his watch will revolve around empirical and quantitative analysis, while adding that the agency’s goal remains protecting consumers. “Regarding antitrust, we must have solid economic analysis that is firmly grounded in facts and real-world institutions,” he said. Muris’ comments lay the groundwork for how his agency will approach competition policy. He agreed with much of the enforcement agenda of his predecessor, Robert Pitofsky, though he suggested vertical mergers would receive less scrutiny than during the past six years. But the mainstays of antitrust enforcement are horizontal mergers and joint ventures, Muris said. According to that definition, the FTC may not have undertaken several major investigations, including the tie-up that formed AOL Time Warner, which was modified by consent decree, and the Barnes & Noble Inc.-Ingram Book Group merger, aborted in the face of FTC opposition. Speaking at the American Antitrust Institute’s annual competition conference, Muris said antitrust enforcement is a way to reduce government interference with the free market. “Today there is bipartisan recognition that antitrust is a way of organizing our economy,” he said. “A freely functioning market, subject to the rules of antitrust, provides maximum benefit to consumers.” Several antitrust lawyers at the speech cautioned against reading too much into Muris’ comments regarding consumers. One issue raised during his confirmation hearings was if antitrust agencies should evaluate whether a merger affects consumers or the broader public, which would include stockholders. For example, under this enlarged definition a deal that hurt consumers might still be acceptable if it offered sufficient benefits to stockholders. In a brief interview after the speech, Muris said there is little difference between the two ways of evaluating deals. “That issue will only make a difference once a decade,” he said. “You can’t calibrate cases like that to where it would make a difference.” Muris also downplayed the difference between the so-called Chicago and “post-Chicago” approach to economic analysis. Muris is generally considered of the Chicago School because of his strong preference for using hard economic data to analyze mergers. Pitofsky was viewed as in the post-Chicago camp because he sometimes widened his analysis to include noneconomic data, such as anecdotal testimony from corporate executives. Muris said it is more important to have quality economic analysis in assessing a merger’s effects on competition than to quibble over its theoretical pedigree. “Although I have not always agreed with cases brought by the Pitofsky FTC, commission departures from relying on good economics were exceptions, not the norm,” he said. One area where Muris and Pitofsky clashed were questions about intellectual property, particularly over whether the FTC should have charged Intel Corp. with acting anti-competitively. “Although I have disagreed with some of the Pitofsky commission’s initiatives here, we agree that the potential anti-competitive abuse of intellectual property is an increasingly important area,” Muris said. Immediately after the speech, Muris presented Pitofsky with AAI’s achievement award. Pitofsky praised AAI President Albert Foer for establishing the advocacy group, which he said is one of the few pro-competition voices remaining. After the luncheon, antitrust lawyers said they believe Muris will maintain the FTC’s antitrust enforcement program. “He really stressed that there are more similarities than differences, and I think he is right,” said Robert Lande, a professor at the University of Baltimore law school. “He has sounded a strong and sensitive bipartisan chord, which suggests a very serious enforcement agenda,” said David Balto, a partner at White & Case in Washington. Pitofsky said fears his successor would dismantle the FTC antitrust program were unfounded. Yet, “the overwhelming influence should be on people who buy the product,” said Pitofsky, who returned to Georgetown University law school. Copyright (c)2001 TDD, LLC. All rights reserved.

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