When the Federal Trade Commission sued Qualcomm Inc. in early 2017 for violating the antitrust laws, something unusual occurred. The Department of Justice’s Antitrust Division filed a brief opposing the Commission’s stance, arguing that it was fundamentally flawed. Soon after, concerns arose that the two enforcers were judging mergers under different standards. And increased infighting over which enforcer would investigate which high-profile merger led to lengthy, expensive delays. All this conflict raised the question: do we really need two antitrust enforcers? 

It’s time to re-examine that question. The Supreme Court now appears ready to overrule Humphrey’s Executor and hand control of the Commission to the President. If that happens, the justifications for having two enforcers will need to be reconsidered. 

The Commission and DOJ share overlapping statutory authority to enforce federal antitrust law. There are some exceptions. For example, only the DOJ may bring criminal antitrust cases. The Commission, for its part, alone has enforcement powers under Section 5 of the FTC Act, a provision that former Chair Lina Khan has argued prohibits conduct beyond the Sherman Act. 

Yet the two agencies have traditionally shared enforcement authority, and each has developed expertise in different industries. The DOJ typically handles cases involving airlines, while the Commission has focused on healthcare. But such clean demarcations haven’t always existed. Disputes over which agency should lead particular merger approvals eventually prompted an agreement that each enforcer would “clear” investigations with the other. But hostilities continued. A study found that, at one point, one in every four Hart-Scott-Rodino filings (a filing made before a merger or acquisition to pre-notify the enforcers) involved a clearance dispute. 

This infighting prompted calls for combining the enforcers. Perhaps the most vocal advocate was Senator Mike Lee, whose One Agency Act would have transferred the Commission’s antitrust authority and resources to the DOJ. Elon Musk agreed that the Act was prudent. Now, with the Court poised to overrule Humphrey’s Executor in Trump v. Slaughter, the reasons for and against having two enforcers have changed. 

The principal complaint against having two enforcers is the significant costs that result from their infighting. The same study found that, on average, a merger-clearance dispute lasted three weeks—almost the entire 30-day HSR period. One clearance dispute lasted an entire year. In another instance, the agencies reportedly flipped a coin to determine who would lead an investigation. These clearance disputes delay merger approval, “depriv[ing] society of the welfare gains that would have resulted” from the merger’s synergies. 

But if the President controls both the Commission and DOJ, wouldn’t he resolve any squabbles? The President would simply decide which enforcer investigates a merger or prosecutes a case; anyone who disagrees would be removed. There wouldn’t be a repeat of the Qualcomm debacle. 

But there’s reason to think disputes would still occur. The enforcers compete for the biggest, most consequential cases, and that jockeying would not vanish simply because they report to the President. What’s more, each enforcer has its own culture and enforcement philosophies. Staff in each agency will still likely push to retain their traditional jurisdictions. And even if the disputes are minor, they can still take days to resolve—valuable time that delays a merger’s approval. Such delays derail pro-competitive mergers and create uncertainty that deters future investment. 

Beyond the disputes, there are still costs to having two enforcers, even if the President controls both. Businesses still must file HSR documents with two entities. Compliance teams are forced to navigate two sets of procedures. And the agencies’ work would still overlap unnecessarily. Consider the media sector: the Commission reviewed Amazon’s purchase of MGM, while the DOJ sued over AT&T’s acquisition of Time Warner, Inc. This happened with Big Tech, too: the DOJ sued Google and Apple, while the Commission sued Amazon and Facebook. Indeed, right now the DOJ and Commission are simultaneously examining antitrust doctrine and labor markets. Taxpayers shouldn’t fund double work. Even a Commission Chairman admitted that he would not replicate our dual-enforcement system in other countries. So, even if the President can arbitrate disputes at the top, the underlying inefficiencies still exist—two bureaucracies with separate priorities, cultures, and structures that will continue to bog down investment and business planning. 

True, there are some benefits to two enforcers even if Humphrey’s is overruled. Having two agencies could spark competition that improves the quality of their work. Moreover, transferring the Commission’s antitrust authority to the DOJ may mean giving up the Commission’s potentially powerful Section 5 power. That could include “invitations to collude” cases—instances where a firm only invites a rival to collude—as the DOJ has no Section 5 power. 

Overruling Humphrey’s would bring about a sea change in administrative law. The age-old justification for maintaining the Commission’s antitrust authority—“that’s just the way things have been”—would no longer hold. Congress should take a hard look at whether two enforcers or a unified enforcer better serves consumer welfare.

Casey Crowley is a judicial law clerk.