FTC Enforcement: An Idiosyncratic Journey

Mary L. Azcuenaga

Commissioner
Federal Trade Commission

before the

National Economic Research Associates, Inc.
15th Annual Antitrust and Trade Regulation Seminar
Santa Fe, New Mexico

July 7, 1994

The views expressed are those of the Commissioner and do not necessarily reflect those of the Federal Trade Commission or the other commissioners.

Good morning. It is a pleasure to return to Santa Fe for the annual NERA antitrust seminar. I usually begin by offering a disclaimer about expressing my own views and not necessarily those of the Commission or of any other commissioner. I will not begin that way today, although I will return to the question later. I plan to use my time to take an idiosyncratic journey through recent enforcement initiatives at the Federal Trade Commission, followed by a pause to take in the scenic vista of three important but nonsubstantive issues, ancillary matters that are noteworthy features of the enforcement terrain but rarely the primary focus of the trip.

MERGERS

I will begin with mergers. The Commission's primary enforcement tool against anticompetitive mergers is a suit in district court under Section 13(b) of the FTC Act to seek a preliminary injunction pending administrative adjudication. In the past year, the Commission has authorized four preliminary injunction suits. In two of the cases, one involving leased railroad boxcars(1) and the other a merger-to-monopoly of two hospitals in Colorado,(2) the parties abandoned their transactions after the Commission voted to challenge them. The two remaining preliminary injunction suits are not yet resolved. A federal district court in Florida dismissed the complaint in the Lee Memorial Hospital case based on the state action exemption.(3) Oral argument on the Commission's appeal will be heard next week.(4) The Commission also challenged a hospital merger in Utah,(5) and settlement discussions are underway.

Also in the past year, the Commission accepted negotiated orders in a number of merger cases. Merger cases always are fascinating, but the main observation I would offer today is that these cases are based on standard Clayton Act principles. The cases involved retail pharmacies;(6) expendable launch vehicles for intermediate weight satellites;(7) coal export terminal services;(8) hospitals;(9) a merger to monopoly in dicyclomine, a pharmaceutical product used to treat irritable bowel syndrome;(10) and several different manufacturing markets, including horizontal carousel storage and retrieval systems used in warehouses,(11) acrylic plastic sheet,(12) coating resins used in paints,(13) shoe polish,(14) and industrial fuses.(15) One case involved the acquisition of a producer of dehydrated onions, and the order was a little unusual in that it required divestiture of seed sufficient to produce 100 million pounds of onions.(16) The seeds are not the ordinary seeds sold in garden shops or through seed catalogues but are specially developed over a period of years to produce low-water onions suitable for dehydration.

One of the Commission's Section 7 settlements, the order in Tele-Communications, Inc.,(17) which was later withdrawn, raised interesting issues about the extent to which Commission investigations interfere with the free play of market forces. You may recall the circumstances of the case, which involved a high visibility bidding war for Paramount Studios. The Commission's investigation concerned the proposed acquisition of Paramount by QVC Network, which was controlled by TCI and Liberty Mutual.

Paramount produced movies and owned cable TV network interests. QVC provided home shopping programming to cable TV stations. TCI was the largest cable television system owner in the United States. TCI and Liberty,(18) which were controlled by the same individuals, together owned substantial interests in cable programming networks. The theory of violation under Section 7 focused on what TCI and Liberty, not on what QVC, would bring to the deal.

Viacom was the other bidder for Paramount; its proposed acquisition of Paramount had already cleared Hart-Scott-Rodino hurdles. It was perceived that as long as the Commission was investigating the proposed QVC deal, but not the proposed Viacom deal, that the QVC group would be disadvantaged in the bidding war.

This kind of situation can lead to an identity crisis for an antitrust enforcement agency or, at the very least, put it in a bit of a quandary about interfering with the market for corporate control. The goal of the antitrust laws is to free competition, not to interfere with it. What is an antitrust agency to do? There are few choices.

One possibility would be to drop the investigation altogether on the ground that the merit of leaving the contest for corporate control unfettered outweighs the need to identify and enjoin an anticompetitive acquisition. I question whether prosecutorial discretion should be stretched that far and tend to believe that, for better or worse, Congress has precluded that option. Another possibility is to continue the investigation and ignore the issue, even if it means that a bid that might have been better than the successful bid never sees the light of day.

A third possibility is to attempt to move quickly, make a decision and then get out of the way of the bidding. This possibility is appealing, so let us consider how it might work.

First, the Commission might find no competitive problem and simply stand aside. Second, the Commission might decide to try to enjoin the entire transaction, thereby eliminating one bidder but saving the public from an anticompetitive acquisition. Third, the Commission might identify and impose a narrow remedy that cures the competitive problem and permits the target company to continue as a bidder. This is generally what happened in the TCI case. Again, this is an attractive solution, but I would suggest some cautionary notes.

In TCI, the Commission imposed an order requiring divestiture of TCI's interests in QVC, to be effective if QVC acquired Paramount. Since QVC did not acquire Paramount and the proposed order was withdrawn, some might maintain that the order was costless and paved the way for the free play of market forces. The order cleared the way for QVC to participate in the bidding contest, but the proposed settlement included an interim agreement that required TCI immediately to sever ties with QVC. To say that the order was costless is to suggest that TCI's ownership interest in QVC was inefficient. Second, the bids for Paramount by QVC would not account for the value of Paramount to TCI. If TCI had been able to continue its relationship with QVC, we might have seen a higher or better offer for Paramount than QVC, sans TCI, was willing or able to make. To the extent that the proposed order was not supported by evidence of likely anticompetitive effects, these costs cannot be defended by the need to obtain a remedy.

There is the risk in this situation, given the pressure of cash tender offer timing, that the Commission will act before it has sufficient evidence, and this was a concern that both Commissioner Owen and I expressed in dissenting from the TCI order. The Commission had, in my view, a general knowledge of the industry, some theories of competitive harm resulting from the proposed acquisition, a desire to get out of the way of the market, and parties willing, for whatever reason, to sign a limited order. In finding reason to believe the law had been violated, it would be inappropriate, of course, but also ineffective to make up for any deficiencies in the evidence by adding to the balance in favor of liability a desire to promote the free play of market forces.

Almost anything the government does can impose costs, and we should not delude ourselves about that. Optimal solutions are hard to come by and depend on the accuracy of the government's predictions about anticompetitive effects. That accuracy may be elusive in the event of highly truncated investigations.

In addition to the settlements reached without resort to a lawsuit, some Section 7 cases were settled during the course of adjudication and some opinions were issued during the past year. Opinions in Section 7 cases are rare, because most of the transactions that the Commission challenges are settled or abandoned before trial. We thought that we might see an opinion from the court of appeals in Occidental Petroleum Corporation, but the appeal was settled earlier this year when Occidental offered a divestiture substantially similar to what the Commission had ordered in 1992 after adjudication on the merits.(19) Occidental will divest plants that produce suspension polyvinyl chloride homopolymer and copolymer and dispersion PVC. Textron,(20) the aerospace and commercial blind rivets case, also was settled earlier this year, after oral argument but before the Commission issued its opinion.

Earlier this year, the Supreme Court denied the petition for certiorari filed by the Olin Corporation in a Section 7 case in which the Commission had issued a divestiture order that was affirmed by the Court of Appeals for the Ninth Circuit.(21) Product market definition was one of the issues in Olin. The two products involved, isocyanurates ("isos") and calcium hypochlorites ("cal hypo"), were dry sanitizers for swimming pools. Isos were somewhat more convenient than cal hypo and cost more.

Isos constituted a product market, the Commission concluded, because consumers of isos likely would not switch to another product in the event of a price increase. Isos and cal hypo also constituted a relevant market, because the price of cal hypo was constrained by the price of isos. As the price of cal hypo increased, consumers of cal hypo would start to buy the more convenient isos. But a seller with market power over both products could profitably raise the price for both, because consumers were unlikely to switch to other products, such as liquid pool bleach, in sufficient numbers to defeat the price increase.

The case is a useful demonstration of the application of the small-but-significant-and-nontransitory-increase-in-price test (SSNIP, for short) in the Merger Guidelines, which is used to define product markets. It shows how the Commission uses the relative prices of products and the effect that changes in those prices have on consumer behavior. It also demonstrates very clearly the situation in which two relevant antitrust markets exist in which one market is a smaller part of the other market.

In May, the Commission dismissed the administrative complaint challenging the acquisition of Ukiah General Hospital by Adventist Health System/West, a consummated hospital merger in Ukiah, California.(22) The case attracted attention for several reasons. One reason is jurisdiction. The Commission's jurisdiction to challenge mergers involving nonprofit hospitals arguably was not clear before the 1991 decisions of the Court of Appeals for the Eleventh Circuit in University Health(23) and of the Commission in Ukiah.(24)

Ukiah also attracted attention because of the procedural sideshow. Ukiah first sought an injunction against the Commission's case in federal district court in California. The court dismissed the complaint for lack of final agency action, and the Ninth Circuit affirmed.(25) A little more than a year later, Ukiah tried again to block the case, this time in the District of Columbia. The federal district court transferred the matter back to the Ninth Circuit,(26) the Court of Appeals for the D.C. Circuit declined to overturn the transfer, and the Supreme Court denied certiorari. The injunction petition was voluntarily dismissed after the Commission issued its decision.(27) Another issue that arose in Ukiah was whether the merger fell within the safe harbor described in the joint agency health care policy statements, which were announced while the case was pending before the Commission.(28) The policy statements are instructive in nature, and the Commission chose to decide the case on the merits.

On the merits, the Commission dismissed the complaint in Ukiah on the narrow ground that complaint counsel failed to prove the geographic markets alleged in the complaint. The market analysis was straightforward and traditional.

Just last week, the Commission issued its decision and order in Coca-Cola,(29) resolving allegations arising from the proposed acquisition of Dr Pepper. The order requires Coca-Cola, for ten years, to obtain FTC approval before acquiring a manufacturer, seller or licensor of a branded soft drink concentrate or syrup. Under the Commission's Rules of Practice, the matter will remain in adjudicative status for twenty days after service for the filing of petitions for reconsideration.(30)

Although the Commission has not initiated any potential competition cases in the last year, I have been talking about potential competition,(31) because of what seems to be a widespread perception that it is virtually impossible under current law to prove the likelihood of independent entry by a potential entrant. Some courts have said that the evidence must show a "reasonable probability" of entry,(32) and the Commission last opined in the B.A.T. case that "clear proof" is necessary.(33)

For some lawyers, the somewhat unusual phrase "clear proof" seems to have become the great thunderbolt in the sky that strikes down any potential, potential competition case. As I read the B.A.T. case, the result is not surprising under any standard, given the facts. I think the case is easily overread, if one focuses too much on the phrase "clear proof." Clear proof may mean nothing more nor less than the preponderance of the evidence, the greater weight of the evidence. This is the "touchstone of judicial decisions across the Nation,"(34) and it seems doubtful that the Commission in B.A.T. intended to create a different standard for assessing liability.

CONDUCT CASES

Let me turn now from mergers to conduct cases under Section 5 of the Federal Trade Commission Act. The Commission has issued a number of traditional antitrust orders this year. Concerted action by trade associations to restrict truthful advertising was alleged in cases involving an association of automobile dealers in Arizona,(35) a national association of condominium managers,(36) and a national association of manufacturers of body armor, commonly known as bulletproof vests.(37) Unlawful restrictions on truthful advertising also were alleged in the complaint issued last summer against the California Dental Association.(38) Price fixing was alleged in cases involving interpreters who provide simultaneous translation services at business and government conferences;(39) a group of chiropractors in Bloomington, Illinois,(40) who allegedly voted to set prices for their services; and resale price maintenance for Keds shoes.(41) In addition, two trade associations of retail pharmacies are prohibited by order from boycotting a prescription drug insurance program to raise reimbursement rates.(42)

The Commission also continues to monitor for order violations. Earlier this year, the respondents under a 1988 order requiring divestiture of twelve supermarkets in New Mexico and Texas agreed to pay $400,000 in civil penalties.(43) The Commission's complaint alleged that the respondents failed properly to maintain stores pending divestiture, failed properly to divest stores, and acquired additional stores without the Commission's prior approval as required under the order.

Penumbra of Section 5

Those who follow the Commission closely have witnessed a surge of creativity in the last several years in which the Commission has formulated several new causes of action under what I have called the penumbra of Section 5.(44) Over the years, these efforts to use Section 5 to challenge conduct that is alleged to be harmful to competition but that does not violate the Sherman Act or the Clayton Act have been less than fully successful.(45) Yet it seems clear that the Commission's authority under Section 5 of the FTC Act is broader than either the Sherman Act or the Clayton Act.(46)

In 1992, the Commission settled a case in which it alleged a violation of Section 5 on the theory that a California supermarket deliberately and effectively secured market power by eliminating capacity in the market and buying out a competitor.(47) The Commission also alleged a violation of Section 7 of the Clayton Act, but whether Section 7 covered the conduct was an issue of first impression. Had the scope of Section 7 been tested and found wanting, the Section 5 count would still have stood. Other new causes of action include unilateral invitations to collude(48) and other noncollusive facilitating practices, such as price signalling(49) and unilateral communications that allegedly reduce competitive uncertainty.(50)

Recent activity within the penumbra of Section 5 includes the Home Oxygen consent agreements, in which the Commission created another new cause of action, and a ruling by the district court in the Abbott Labs case, which the Commission lost on the merits. The Home Oxygen cases involved oxygen supply companies that allegedly obtained market power and created a barrier to entry by offering partnership interests in which more than 60% of local pulmonologists joined,(51) sometimes called the "accretion-to-monopoly" theory. This is new territory for the Commission. Although I voted to accept the orders for public comment, I have reservations about their value. I believe it is useful, indeed, advisable for the Commission to continue to evaluate new factual situations and to develop new theories to address anticompetitive conduct under Section 5. But the truncated record on which these agreements and consent agreements generally are based leaves something to be desired as a foundation on which to establish new Commission law and policy.(52)

From that perspective, I looked forward to the decision of the district court in the Abbott Laboratories(53) case, which came down last month. The Abbott case is fascinating for several reasons. The decision is the first court opinion since Ethyl(54) to address liability under the penumbra of Section 5, and the court acknowledged the principle that Section 5 is broader than the antitrust laws. In addition, the court had no apparent reluctance to assume the Commission's role of defining the penumbra of Section 5. Finally, as in Ethyl, the Commission lost.

The Abbott case arose from the 1990 bidding to supply infant formula to the Puerto Rico Department of Health (the acronym of which is "AFASS") under the federally funded Special Supplemental Food Program for Women, Infants and Children (which is known as the "WIC" program). Federal regulations prefer sole source or winner-take-all bidding, but the AFASS preferred open bidding, because formula suppliers offered cash and free formula to state hospitals to build brand loyalty. Abbott won the sole source bid by a significant amount, but the AFASS cancelled the bid in favor of open bidding. Neither Abbott nor the U.S. Department of Agriculture, which administers the WIC program, challenged the cancellation.

The first count in the complaint was a standard conspiracy count. The second count alleged that Abbott violated Section 5 by providing information that showed competing bidders that Abbott would support an open market system in Puerto Rico. The suspect information apparently consisted of Abbott's telling the Puerto Rican health department that Abbott would not challenge

cancellation of the bidding that it had won. For lack of a better description, perhaps we can call this the "publiclyfailing-to-sue-a-Government-territory" theory of unfair competition. The court entered judgment for Abbott on both counts.

The court began its discussion of the second count by echoing the Second Circuit in Ethyl "that some workable standard must exist for what is or is not to be considered an unfair method of competition under § 5."(55) The court noted that the Commission had not offered an opinion analyzing the conduct but had elected instead to file a complaint in district court. "In doing so," the court said, "the FTC has asked this Court to play the equitable role" of defining unfair methods of competition.(56)

The court accepted the role and found "clear" and "overwhelming" evidence that Abbott had not engaged in unfair methods of competition: AFASS, not Abbott, brought about an improper procurement, and the U.S. Department of Agriculture knowingly "allowed an improper procurement to go into effect, costing the U.S. Government millions of dollars of excess costs." Abbott had been placed in an "untenable position" by the actions of others, the court said, and it would be "unconscionable to require Abbott to 'bail out' the Government by underwriting the losses of this failed procurement program.(57)

Whatever other lessons we may draw from this case, the Commission clearly did not persuade the court on the second count, the count based on the new theory of violation under Section 5. It also is worth noting that in its decision, the court spoke the language of equity, not the language of antitrust. In a surprising finale, however, the court seemed willing to assign to the Commission a position as a sort of watchdog against government mismanagement. The court said that the Commission "had little choice but to bring the case and allow the facts to receive a public hearing" and that the FTC "emerges as an able protector of the public interest"(58) -- this, even though the court had said it would be "unconscionable" to impose liability on Abbott, as the Commission had requested.

Given the paucity of judicial authority on various causes of action under the penumbra of Section 5, there may a tendency to expect too much from the Abbott decision. It is, after all, a decision of one district court, it turns primarily on the facts, and the facts are fairly unusual. Also, in the interest of full disclosure, I should mention that I voted against including this count in the complaint. Still, it seems fair to say that the decision underscores again the need in developing a cause of action under the penumbra of Section 5 for a solid theory of anticompetitive effects and the evidence to support it. The Commission must decide by July 26 whether to appeal the decision.

ANCILLARY MATTERS

Now I would like to turn to three ancillary matters: the meaning of reason to believe, sunset policy, and disclaimers. The only common thread among the three is that each has been brought to my attention over the past year either as a source of confusion or as a subject of particular interest. These subjects may be of greater interest to lawyers than economists. To those economists in the audience, I apologize, and because I appreciate your attention, I will try to work in either the word "incentive" or the word "auction" before I sit down.

Reason To Believe

I will start at the beginning, with complaints. Under the FTC Act, the Commission has authority to issue a complaint when it has reason to believe that a violation has occurred and that a proceeding would be in the public interest.(59) What constitutes "reason to believe"? Reason to believe is an unquantified standard the application of which is constrained only by the judgment and integrity of each individual commissioner. I cannot say that an unwritten consensus exists on the meaning of reason to believe, but surely we can identify a few fundamental principles on which we all can agree. First, reason to believe must be based on at least some evidence. Although economic theory, for example, might be sufficient to sustain part of a case, surely we cannot initiate a lawsuit based solely on theory. Circumstantial evidence can support a reason to believe determination to the same extent that it can support a finding of liability. Second, reason to believe must be based on the preponderance of the evidence available at the time the decision is made. It means that the conduct more likely than not is unlawful. Could reason to believe be based on evidence that suggests liability combined with a strong likelihood that additional evidence to that effect will be obtained in discovery after the complaint issues? I believe it can.

It may be easier to identify what does not constitute reason to believe than to identify what does. The seriousness of the violation, assuming it occurred, cannot be added to the balance to make up for any evidentiary deficiency in the elements of the case. Consider the following scenario: based on the available evidence, the Commission is unsure whether particular conduct occurred, cannot exclude the possibility that it occurred and knows that if it did occur it would be very harmful to the public. The Commission decides not to risk allowing that amount of harm, if it exists, to continue and therefore finds reason to believe the law has been violated. Plainly that would not be an appropriate reason to believe determination.

Consider three additional scenarios: First, the Commission considers two counts, finds reason to believe the law has been violated on one count only but includes the second count in the complaint anyway, to be used as leverage in exacting a settlement. Second, a massive amount of conflicting evidence is presented to the Commission, and the Commission decides to issue a complaint so that the evidence can be sorted through at trial. Third, the evidence including expert testimony is inconclusive, and the Commission issues a complaint in the hope that before the trial ends an expert, as yet unidentified, can be found to testify and tip the balance in favor of liability.

Surely all three scenarios illustrate improper prosecutorial decisions. Suspicion, even very strong suspicion, is not enough to support a determination of reason to believe.

Sunset

Moving from the initiation of a case to its conclusion, my second ancillary matter is sunset policy. Orders of the Commission are perpetual but, over the last decade, the Commission has considered whether a sunset policy would be advisable. Although some orders may be useful for many years, circumstances can change. Having considered the advantages and disadvantages of limiting the duration of our orders, I believe that it would be advisable for the Commission to adopt an acrossthe-board sunset policy for order provisions that now are perpetual. Although any time period is arbitrary, given the substantial resources that go into obtaining orders and the Commission's record of obtaining civil penalties for violations of longstanding orders, my preference would be to choose a relatively long period of time, after which orders would expire. In my view, the Commission appropriately could impose a term of thirty years on all its orders, although other periods of time might also be defensible.

It has been suggested that a sunset policy should apply only to antitrust orders. I see no reason to make that distinction. If the changed circumstances argument has any validity, it would seem to apply with equal force to both antitrust and consumer protection orders. I also favor applying any sunset policy to outstanding as well as future orders.

Disclaimers

My final ancillary matter is the subject of disclaimers, which I raise because there has been some confusion on this issue. Disclaimers are a tradition, a courtesy and a necessity. Each commissioner speaks only for him or herself. The Commission speaks, after a motion and a vote, only when a majority chooses to speak with one voice. Letters and other documents that conclude with the sentence, "By direction of the Commission," speak for the Commission, even though they are signed by an individual, usually the Chairman or the Secretary of the Commission. Letters or other documents that do not contain the sentence, "By direction of the Commission," express only the views of the author but may require a disclaimer to make that clear. Testimony before Congress, although necessarily presented by an individual, virtually always is Commission testimony and should be so identified both orally and in writing.

No single commissioner speaks for the Commission. Even a chairman does not speak for the Commission. Members of the senior staff do not speak for the Commission. With the exception of the Executive Assistant to the Chairman, it also is improper for a member of the senior staff to speak on behalf of any single commissioner. Members of the Commission's staff are charged with implementing the policy of the Commission. Policy is set by majority vote of the Commission in matters such as opinions, testimony, policy statements and budget allocations.

The concept of incentive played a role in shaping these ground rules, a topic to be expanded on another day. The rules may seem abstruse to the uninitiated, but like many procedures, they are important in ensuring accountability. Those inside the agency understand this, and that is why you see such widespread use of what may seem to you on the outside to be very boring disclaimers.

Of course, disclaimers do not have to be boring. In a speech he gave in 1962, former Commissioner Lowell Mason said:

The opinions expressed in this speech are my own and the characters delineated in the anecdotes are pure fiction. Any similarity between them and persons living or dead is intentional and probably reprehensible.

When the Federal Trade commission inflicts inquisition and punishment without trial on the American public, it's time somebody got reprehensible.

I do not know exactly what that means, but it is what he said. Recently, I heard a member of the private bar offer this disclaimer:

The views I express are not necessarily my own.

That is a disclaimer that I might like to give some day, but for now, let me remind you that the views I have expressed today are most definitely my own and are not necessarily those of the Commission or any other commissioner. I do not and cannot speak for another, and I assure you that no one else speaks for me.

Thank you.

Endnotes:

1. General Electric Co., File 931-0110 (FTC press release Sept. 29, 1993), Commissioner Starek recused.

2. Parkview Episcopal Medical Center, File 931-0125 (FTC press release Jan. 31, 1994).

3. FTC v. Hospital Board of Directors of Lee County, No. 94-137-CIV-FTM-25D (M.D. Fla. May 16, 1994), injunction pending appeal granted, No. 94-2642 (11th Cir. May 18, 1994). Commissioners Azcuenaga and Owen dissented from the decision to seek a preliminary injunction (FTC press release, April 26, 1994).

4. Oral argument is scheduled for July 12. The Commission issued its administrative complaint challenging the acquisition in May. Lee Memorial Hospital, File 941-0057, Commissioners Azcuenaga and Owen dissenting (FTC press release May 11, 1994).

5. HealthTrust, Inc., File 941-0020, Commissioner Yao dissenting and Commissioner Owen not participating (FTC press release March 22, 1994).

6. TCH Corp., File 941-0024, Commissioner Owen dissenting (FTC press release Feb. 24, 1994).

7. Martin Marietta Corp., Docket C-3500 (June 22, 1994), Commissioner Owen dissenting.

8. Consol, Inc., Docket C-3460 (Sept. 27, 1993).

9. Columbia Healthcare Corp., Docket 9256 (May 5,1994), Commissioner Azcuenaga concurring; Columbia Hospital Corp., Docket C-3472 (Nov. 19, 1993); Columbia Healthcare Corp., File 941-0005, Commissioner Azcuenaga concurring in part and dissenting in part and Commissioner Owen dissenting (FTC press release Feb. 8, 1994).

10. Dow Chemical Co., File 941-0019, Commissioners Owen and Yao concurring and Commissioner Azcuenaga dissenting (FTC press release June 22, 1994).

11. Alvey Holdings, Inc., Docket C-3488 (March 30, 1994).

12. Imperial Chemical Industries PLC, Docket C-3473 (Nov. 29, 1993), Commissioner Owen dissenting.

13. Valspar Corporation, Docket C-3478 (Jan. 25, 1994), Commissioner Owen dissenting.

14. Sarah Lee Corp., File 921-0023 (FTC press release June 20, 1994).

15. Cooper Industries, Inc., Docket C-3469 (Oct. 26, 1993), Commissioner Azcuenaga dissenting.

16. McCormick & Co., Inc., Docket C-3468 (Oct. 25, 1993).

17. Tele-Communications, Inc., File 941-0008 (Nov. 15, 1993), Commissioner Yao concurring and Commissioners Azcuenaga and Owen dissenting; withdrawn March 16, 1994.

18. For simplicity, hereafter "TCI."

19. Occidental Petroleum Corp., Docket 9205, reprinted in 5 Trade Reg. Rep. (CCH) ¶ 23,370 (Dec. 22, 1992) (Commissioner Owen concurring in part and dissenting in part, Commissioners Starek & Yao not participating), stipulated settlement and final order, No. 93-4122 (2d Cir. Jan. 12, 1994), modified final order (FTC Feb. 3,1994), Commissioner Owen dissenting.

20. Textron Inc., Docket 9226 (May 6,1994), Commissioner Azcuenaga dissenting.

21. Olin Corp. v. FTC, 113 F.T.C. 400 (1990), aff'd, 986 F.2d 1295 (9th Cir. 1993), cert. denied, No. 93-716 (U.S. Feb. 22, 1994).

22. Adventist Health System/West, Docket 9234 (April 1, 1994), Commissioners Owen and Yao concurring.

23. FTC v. University Health, Inc., 938 F.2d 1206 (11th Cir. 1991); see also United States v. Rockford Memorial Corp., 898 F.2d 1278 (7th Cir. 1990).

24. Adventist Health System/West, 114 F.T.C. 458 (1991), Chairman Steiger concurring.

25. Ukiah Valley Medical Center v. FTC, 1990-1 Trade Cas. (CCH) ¶ 68,916 (N.D. cal.), aff'd, 911 F.2d 261 (9th Cir. 1990).

26. Ukiah Adventist Hospital v. FTC, 1991-2 trade Cas. (CCH) ¶ 69,620 (D.D.C. 1991), petition for mandamus denied, 981 F.2d 543 (D.C. Cir. 1992), cert. denied, 114 S. Ct. 88 (1993).

27. Ukiah Adventist Hospital v. FTC, No. 93-70387 (9th Cir. May 18, 1994).

28. Department of Justice & FTC Antitrust Enforcement Policy Statements in the Health Care Area (Sept. 15, 1993), reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,150.

29. The Coca-Cola Co., Docket 9207 (June 28, 1994), Commissioners Azcuenaga and Starek recused.

30. Section 3.55, 16 C.F.R. § 3.55

31. See "FTC Enforcement Under Section 7 of the Clayton Act," Practising Law Institute Twenty-Fourth Annual Advanced Antitrust Workshop, Fort Lauderdale, Florida, March 9, 1994; "Musings on Mergers and Other Matters," Washington State Bar Association Tenth Annual Antitrust Conference, Seattle, Washington, November 12, 1993; "Antitrust Enforcement Under the Clinton Administration: A Perspective from the FTC," ABA Section of Litigation Law, Committee on Antitrust, ABA Annual Meeting, New York, New York, August 9, 1993.

32. United States v. Siemens Corp., 621 F.2d 499, 506-07 (2d Cir. 1980).

33. B.A.T. Industries, Ltd., 104 F.T.C. 852 (1984).

34. Charlton v. FTC, 543 F.2d 903, 907-08 (D.C. Cir. 1976).

35. Arizona Automobile Dealers Association, Docket C-3497 (May 31, 1994).

36. Community Associations Institute,Docket C-3498 (June 6, 1994).

37. Personal Protective Armor Ass'n, Docket C-3481 (March 17, 1994), Commissioner Starek concurring.

38. California Dental Association, Docket 9259 (July 13, 1993) (FTC press release July 13, 1993).

39. American Society of Interpreters & The American Association of Language Specialists, File 911-0022 (FTC press release Jan. 31, 1994).

40. McLean County Chiropractic Ass'n, Docket C-3491 (April 8, 1994), Commissioner Starek concurring.

41. The Keds Corporation, Docket C-3490 (April 1, 1994).

42. The Maryland Pharmacists Ass'n & Baltimore Metropolitan Pharmaceutical Ass'n, Docket 9262 (March 1, 1994).

43. FTC v. Rebus Development Corp., Civ. No. 94-0041 (D.D.C., filed Jan. 11, 1994).

44. See Mary L. Azcuenaga, "Shimmers in the Penumbra of Section 5 and Other News," before the 13th Annual Antitrust Trade Regulation Seminar, National Economic Research Associates, Inc., Santa Fe, New Mexico, July 9, 1992.

45. Id. at 9-18.

46. See FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 239 (1972).

47. The Vons Companies, Inc., Docket C-3391 (Aug. 7, 1992), Commissioner Azcuenaga concurring on Section 5 but not Section 7.

48. YKK (U.S.A.) Inc., Docket C-3445 (July 1, 1993), Commissioners Owen, Starek and Yao concurring and Commissioner Azcuenaga dissenting; A.E. Clevite, Inc., Docket C-3429 (June 8, 1993), Commissioner Owen concurring and Commissioner Azcuenaga dissenting; Quality Trailer Products Corp., Docket C-3403 (Nov. 5, 1992), Commissioners Azcuenaga and Owen concurring.

49. FTC v. Mead Johnson & Co., Civ. No. 92-1366 (D.D.C. June 11, 1992). Commissioner Azcuenaga concurred on the conspiracy count and dissented on the facilitating practices count.

50. E.g.,FTC v. American Home Products Corp., Civ. No. 92-1365 (D.D.C. June 11, 1992) (Commissioner Azcuenaga concurred on the conspiracy count and dissented on the facilitating practices count); Abbott Laboratories, Docket 9253 (date), Commissioner Azcuenaga concurring in part and dissenting in part.

51. Home Oxygen & Medical Equipment Co., File 901-0109, Homecare Oxygen & Medical Equipment Co., File 911-0020, Commissioner Azcuenaga concurring and Commissioner Starek dissenting (FTC press release Nov. 2, 1993).

52. See "Shimmers in the Penumbra," supra note 44, at 12-13.

53. FTC v. Abbott Laboratories, Civ. No. 92-1364 (D.D.C. May 27, 1994) (Commissioner Azcuenaga dissented from the facilitating practices count alleged in the complaint).

54. E.I. duPont de Nemours & Co. V. FTC, 729 F.2d 128 (2d Cir. 1984) ("Ethyl").

55. Abbott, slip op. at 25.

56. Id., citing FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244 (1972) (permissible for the FTC, "like a court of equity, [to]consider[] public values beyond simply those enshrined in the letter or encompassed in the spirit of the antitrust laws").

57. Abbott, slip op. at 27.

58. Id. at 29.

59. Sections 5 & 13(b) of the FTC Act, 45 U.S.C. §§ 45 & 53(b).