This paper explores the policy implications of the FTC's decision to file its enforcement action against Intel under Section 5 of the FTC Act and declare that it has the power to go further under Section 5's "unfair competition" prong than it could under Section 2 of the Sherman Act. It argues that Intel is an inappropriate case for the Commission to make a bid for Section 5 independence since none of the Commission's institutional advantages over Article III courts justifies a departure from ordinary Section 2 norms in this case. Indeed, the Intel case has the potential to set back the Commission's enforcement powers by prompting a reviewing court to chastise the Commission for overreaching and rejecting a broad view of Section 5.


Antitrust and Trade Regulation

Date of this Version

January 2010