FTC "Enforcement Principles" For Section 5 Of The FTC Act: Is Something Better Than Nothing?

For many years, antitrust practitioners have struggled to understand exactly how the FTC will analyze and enforce Section 5's prohibition of "unfair methods of competition."  Counseling clients has been challenging.  In a short one-page release on August 13, 2015, the FTC published its first ever policy statement in an apparent effort to address those uncertainties.  These are the three "enforcement principles":

• "the Commission will be guided by the public policy underlying the antitrust laws, namely the promotion of consumer welfare;"
• "the act or practice will be evaluated under a framework similar to the rule of reason, that is, an act or practice challenged by the Commission must cause, or be likely to cause, harm to competition or the competitive process, taking into account any associated cognizable efficiencies and business justifications;" and