Now that Terrell McSweeny has been confirmed as the fifth Federal Trade Commission (FTC) commissioner, there is a lot of public talk of bipartisanship and private talk of a Democratic-controlled FTC. Certainly, of course, we take each of the commissioners at his or her word about working cooperatively together; at the same time, however, one cannot ignore the assumption of many that deadlocks often may break along “party lines.”
Yet, the more productive inquiry for FTC practitioners—as well as their clients—is to assess the circumstances in which commissioners have found reasons to cross perceived “party lines.” Indeed, as we describe here, looking at each commissioner individually (and predictively for McSweeny), there is no reason to assume that any of them will invariably decide matters as party alignment may suggest. Instead, what we see is that, along the spectrum of antitrust policy, substantive principles and evidentiary standards, there in fact are instances where each commissioner has crossed the aisle on enforcement matters at one time or another.
