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Ohlhausen’s Appointment as Acting Chair of FTC Signals Potential Change in Antitrust Approach

President Donald Trump last week designated Maureen K. Ohlhausen as acting chair of the U.S. Federal Trade Commission (“FTC”). Ohlhausen is a vocal critic of government involvement in the market, suggesting the FTC under her leadership will employ a lighter touch with regard to enforcement and regulatory actions.

Ohlhausen strongly signaled at a conference days before her appointment that a change of direction in antitrust regulation was coming. She criticized the FTC under the Obama Administration for “at times pursu[ing] an agenda that disregarded sound economics” and “impos[ing] undue costs on U.S. businesses.” She lamented that “regulation has become pervasive—its tentacles invading almost every aspect of business life.” In outlining her vision for the FTC, she said she would like it to “approach its intervention decisions with a philosophy of regulatory humility that has been absent in the last several years.” Under President Trump, she noted, “all signs point to a new antitrust policy.”

Ohlhausen did, however, acknowledge that the FTC during the Obama Administration pursued some “meritorious cases.” For example, she agreed with the FTC’s actions in opposing pay-for-delay agreements used by drug manufacturers to stifle competition from lower-cost generic medicines, which we have previously covered here, here, and here. She also felt the FTC acted appropriately in challenging potentially anticompetitive hospital mergers. We have extensively covered the FTC’s challenges to hospital mergers, including here, here, here, here, here, here, and here. We will continue to cover these matters as new actions arise.

Ohlhausen’s concerns regarding government regulation does not stop with the FTC. Ohlhausen has also spoken out against the Federal Communications Commission's net neutrality rules, opining that “we do not need another layer of regulations issued under the Communications Act.” “To the extent the government is involved,” she wrote in a recent paper, “[the FTC] model of enforcement, advocacy, and industry education is the better model that will allow free markets the breathing room they need to prosper.”

In response to her appointment as acting chair, Ohlhausen vowed to “ensure the Commission minimizes the burdens on legitimate business as we carry out this vital work” and “to preserve America’s true engine of prosperity: a free, honest, and competitive marketplace.”

Ohlhausen has been a serving as an FTC commissioner since April 4, 2012. Her term expires in September 2018. Before becoming a commissioner, she served the FTC in various capacities for over a decade, most recently as Director of the Office of Policy Planning. She was previously a partner at Wilkinson Barker Knauer, LLP, where she focused on FTC issues, including privacy, data protection, and cybersecurity.

As acting chair, Ohlhausen’s stint in the role is temporary. President Trump has not yet decided on a permanent candidate.

Maureen K. Ohlhausen