Introduction
Following President Trump’s Executive Order on Reducing Anti-Competitive Regulatory Barriers,[1] the FTC—led by Chairman Andrew Ferguson—launched a public inquiry this week into “how federal regulations can harm competition in the American economy.”[2] The Request for Public Comment (“RPC”) invites consumers, workers, businesses, start-ups, potential market entrants, investors, and academics to identify and comment on “unnecessary regulations that exclude new market entrants, protect dominant incumbents, and predetermine economic winners and losers.”[3] As we discuss below, the ultimate goal of these public comments is for the FTC Chair to produce a report proposing rescission or modification of such allegedly anticompetitive regulations later this year.
The RPC notes that “[a]ppropriately tailored economic regulations can play an important role in ensuring that markets function efficiently” but that often regulations become “unnecessarily onerous,” can “hold back” the American economy, and should accordingly be eliminated or modified.[4] The RPC requires public comments to be submitted within 40 days by May 27, 2025, and notes that the FTC will coordinate its efforts with the parallel initiative of the U.S. Department of Justice Anticompetitive Regulations Task Force, which is also seeking public comments that are due by May 26.[5]
Anticompetitive Effects from Regulations
The RPC requests information on a number of anti-competitive effects resulting from particular federal regulations, including those that:
- Create, or facilitate the creation of, de facto or de jure monopolies;
- Create unnecessary barriers to entry for new market participants;
- Limit competition between competing entities or have the effect of limiting competition between competing entities;
- Create or facilitate licensure or accreditation requirements that unduly limit competition;
- Unnecessarily burden the agency’s procurement processes, thereby limiting companies’ ability to compete for procurements; or
- Otherwise impose anti-competitive restraints or distortions on the operation of the free market.[6]
The press release announcing the RPC harkens back to the Trump executive order, noting that “the Trump-Vance FTC will be on the front lines of advancing the President’s agenda to revitalize the American economy.”[7] Similarly, the press release announcing the parallel DOJ effort notes that “[r]ealizing President Trump’s economic Golden Age will require unwinding burdensome regulations that stifle free market competition.”[8]
Executive Order No. 14267
The executive order calls on the heads of executive agencies to consult with FTC Chairman Andrew Ferguson and Attorney General (“AG”) Pam Bondi to “complete a review of all regulations subject to their rulemaking authority and identify those that” have the anticompetitive effects cited in the RPC.[9] Agency heads are required to provide a list of the regulations identified to Chairman Ferguson and AG Bondi by June 18, including recommendations as to whether the regulations warrant modification or recission in light of their anticompetitive effects.
The executive order also requires Chairman Ferguson to issue this RPC and receive public comments for 40 days, at the conclusion of which he is to convey the relevant responses to the appropriate agencies with rulemaking authority over the identified regulations.[10] Chairman Ferguson is then called to consult with AG Bondi and other relevant agency heads to provide the Director of the Office of Management and Budget (“OMB”) with a consolidated list of regulations that warrant rescission or modification in light of their anticompetitive effects, along with recommended modifications.[11] This list can include regulations not originally included on the agency list if such regulations fall under one of the categories of anticompetitive effects cited in the RPC.[12] The executive order then calls for the OMB Director and others to consult with the relevant agency heads to decide whether to incorporate the proposed changes as part of President Trump’s “Department of Government Efficiency” Deregulatory Initiative.[13]
Key Takeaways
The issuance of the RPC by Chairman Ferguson moves forward the executive order. We would expect a cascade of comments, with numerous calls that regulations are anticompetitive and should be rescinded or modified. With all three Republican Commissioners in place (President Trump fired the two Democratic Commissioners, although they have challenged that action as illegal in federal court), we would also expect a substantial set of recommendations to eliminate regulations.
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