GAL COMPETITION PROJECTGAL COMPETITION PROJECTUNITED STATESUNITED STATES

Institutional Performance Institutional Performance NormsNorms

Harry First, Eleanor Fox,Harry First, Eleanor Fox,

and Daniel Hemliand Daniel Hemli

February 5, 2011February 5, 2011

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OPERATIONAL EFFICIENCYOPERATIONAL EFFICIENCY

Overall investigationsOverall investigations Merger review: a regulatory systemMerger review: a regulatory system

agency clearanceagency clearance second requests: streamlining the processsecond requests: streamlining the process non-HSR reviewsnon-HSR reviews

Litigation timeLitigation time FTC: too slow? new 2009 rulesFTC: too slow? new 2009 rules DOJ: too slow? few cases, no criticismDOJ: too slow? few cases, no criticism no internal datano internal data

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EXPERTISEEXPERTISE

StaffStaff large staffslarge staffs economists: well-trained; integratedeconomists: well-trained; integrated DOJ: sometimes hires out for litigatorsDOJ: sometimes hires out for litigators

LeadershipLeadership DOJ: no formal qualificationsDOJ: no formal qualifications FTC Commissioners: sparse representation of FTC Commissioners: sparse representation of

economists or business executiveseconomists or business executives ALJs: appointment not controlled by FTCALJs: appointment not controlled by FTC

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TRANSPARENCYTRANSPARENCY

Ex anteEx ante guidelinesguidelines public workshops and speechespublic workshops and speeches advisory opinions/business review lettersadvisory opinions/business review letters

Ex postEx post settlements: consent decrees/orderssettlements: consent decrees/orders closing statementsclosing statements

But what do you see?But what do you see?

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ACCOUNTABILITYACCOUNTABILITY

Data availabilityData availability Executive branch controlExecutive branch control

removal of appointeesremoval of appointees sporadic review of DOJ activitiessporadic review of DOJ activities

Congressional controlCongressional control legislationlegislation budgetbudget oversightoversight

Judicial control: “the shadow of the law”Judicial control: “the shadow of the law”

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RULE OF LAWRULE OF LAW

Criminal enforcementCriminal enforcement Constitutional constraintsConstitutional constraints

Civil enforcementCivil enforcement variability when Administrations changevariability when Administrations change dominance of economicsdominance of economics

Political concernsPolitical concerns political electionspolitical elections political valuespolitical values

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FLASHPOINTSFLASHPOINTS

Merger reviewMerger review DeclinationsDeclinations

use of closing statementsuse of closing statements Qualifications: ALJsQualifications: ALJs Institutional restructuringInstitutional restructuring

DOJ as criminal cartel prosecutorDOJ as criminal cartel prosecutor FTC as administrative agencyFTC as administrative agency