Is The FTC A "Regulator"? It Sure Seems To Be Moving In That Direction

For the 26+ years I served at the FTC, the agency always described itself as a "law enforcement agency," not a "regulator." That's because the FTC spent most of its resources on enforcing the FTC Act and other laws passed by Congress, not creating new regulations on its own. While it would be an exaggeration to say that the FTC has become a regulator in the mold of the federal banking agencies or CFPB, Chair Khan is certainly pushing the FTC in that direction. Indeed, the agency's rulemaking activity has dramatically increased under her tenure.

From "Whack-a-Mole" to "Rule-a-Palooza"

What explains the change? For one thing, the FTC majority believes that the FTC's former way of operating (which it often describes as "case-by-case enforcement" or even "whack-a-mole") hasn't adequately protected consumers and competition, warranting the creation of stricter, broader rules for the entire marketplace. For another, in the wake of the Supreme Court's decision in