On Thursday, President Trump announced his intention to nominate Joseph Simons as Chairman of the Federal Trade Commission and Rohit Chopra as an FTC Commissioner. The White House also announced that the President is expected to nominate Noah Phillips to fill a third vacancy at the Commission. If confirmed by the US Senate, Simons is expected to replace Commissioner Terrell McSweeny, whose term expired in September, and will take over the helm of the FTC from Maureen Ohlhausen, who has been serving as Acting Chairman since January.
If confirmed as Chairman, Simons will return to the FTC for a third stint, having previously served as Associate Director for Mergers and then Assistant Director for Evaluations in the 1980s and as Director of the Bureau of Competition from 2001 to 2003. During his time leading the Bureau of Competition, Simons brought 46 merger enforcement actions and initiated over 100 non-merger investigations. While at the FTC, Simons was credited with co-developing “critical loss analysis,” a market definition technique that has been incorporated into the US antitrust agencies’ Horizontal Merger Guidelines and has played an important role in agencies’ competitive analysis of mergers. His focus on economics suggests that, under his leadership, the Commission will incorporate economic analysis more systematically into its decision making and, in particular, that the recommendations of the Bureau of Economics will be more important.
President Trump also announced the nomination of Rohit Chopra, a senior fellow at the Consumer Federation of America and former official at the Consumer Financial Protection Bureau, to fill one of the vacant seats on the Commission. In addition, the President is expected to nominate Noah Phillips, chief counsel to Republican US Senator John Cornyn of Texas, to a vacant seat in the near term. If all three of the President’s nominees are confirmed by the Senate, Republican Commissioners will have a majority at the FTC for the first time since the Bush Administration. Historically, Republican-led antitrust agencies have tended to require more evidence of consumer harm before initiating an enforcement action, and also generally have been more willing to consider efficiency justifications and to accept remedy proposals to resolve potential competitive concerns. Although the confirmation process for FTC nominees during the last three administrations has taken, on average, more than four months, there is reason to believe that, because these nominees are bundled together, the process could move more quickly.