Summary
On Thursday, April 10, the U.S. Senate voted to confirm Mark Meador as a Commissioner of the FTC. Previously, it was expected that Meador's confirmation would lead to significant changes at the FTC, as his presence on the Commission would give Republicans a 3-2 majority. In light of President Trump's firing of the two Democratic Commissioners earlier this year, however, Mr. Meador's presence is less likely to lead to significant changes. However, as Mr. Meador will be the only Commissioner who previously worked at the FTC, in the Health Care Division, it is likely that he will bring additional experience to the Commission. Clients should expect Commissioner Mr. Meador to likely support the continued use of both price and non-price aspects to plead harm to competition, as well as an increased focus on health care. And Mr. Meador is expected to support ongoing efforts by Chairman Andrew Ferguson to gather information on big tech "censorship."
Mr. Meador brings a different background to the current Commission lineup. Unlike Chairman Ferguson and Commissioner Melissa Holyoak, Mr. Meador was a staff member at both the FTC (in the Health Care Division) and DOJ's Antitrust Division. He previously worked with former DOJ Antitrust Division head Jonathan Kanter in private practice, as well as working for Utah Senator Mike Lee before returning to private practice, focusing on antitrust matters relating to so-called "big tech."
Mr. Meador's presence on the FTC creates a 3-0 majority, all filled by Republican appointees. His confirmation is therefore unlikely to make significant policy or enforcement shifts. However, it will be interesting to see how Commissioner Meador supports major institutional questions that the FTC is likely to confront during President Trump's second term. For example, one major question is whether Mr. Meador will be supportive of efforts to combine the FTC with the DOJ. On the one hand, Mr. Meador could be considered an institutionalist in light of his tenure as a staff member at both the FTC and DOJ. However, he advised Senator Mike Lee's staff when Senator Lee first introduced the One Agency Act in 2020. This bill aims to consolidate antitrust enforcement authority, which is currently split between the FTC and DOJ, into one entity—the DOJ. (Recently, FTC Chairman Ferguson reportedly defended the idea of having two U.S. antitrust enforcers.)
Mr. Meador's presence also raises important questions about the continued use of the FTC's in-house court system, referred to as "Part 3" due to its location in the relevant Code of Federal Regulations. Mr. Meador has not stated his public views on Part 3, though as an FTC staff attorney he was knowledgeable about the in-house court system as part of his health care duties. We expect Mr. Meador to support Chairman Ferguson's previously stated views that "I have constitutional and due process concerns about administrative adjudications generally." Chairman Ferguson continued by saying that he believes "that the commission maximizes its credibility when it's getting the judicial imprimatur on its enforcement decisions." More recently, Mr. Ferguson un-recused himself in an FTC in-house matter to allow the case to continue, which could give Mr. Ferguson and Mr. Meador the ability to dismiss the case and/or refile it in federal court. Even if Mr. Ferguson does not take further steps on this existing case, we expect the new Commission to push other cases away from the in-house system and toward the court system.
Next, Mr. Meador joins the Commission at a time when it lacks the traditional bipartisan support that it previously enjoyed. In the past, a unanimous vote by FTC Commissioners of both parties gave FTC actions a bipartisan foundation that was often quite persuasive to courts. That option is not currently available to the FTC, however, in light of President Trump's firing of the two Democratic Commissioners (who have filed a lawsuit challenging the firings). Those firings have already affected the partisan nature of Mr. Meador's confirmation: before the firings, he was voted out of the Senate Commerce Committee by a 20-8 vote, with six Democratic Senators voting in favor; after the firings, he was confirmed by the full Senate by a vote of 50-46, facing unanimous opposition by Democratic Senators. It will be interesting to see if Mr. Meador makes efforts to regain some of the bipartisan nature of the FTC.
Turning to the substance of his views, Mr. Meador is likely to continue the FTC's focus on so-called "big tech" and non-price harms to competition, while increasing the FTC's focus on health care matters. During his hearing in front of the U.S. Senate Committee on Commerce, Science, and Transportation, Mr. Meador said that, if he were confirmed, he would focus on noncompete agreements and issues surrounding "censorship" by big technology companies. The focus on noncompete agreements signals a support for the inclusion of non-price aspects when pleading harm to competition, which has been exhibited by recent deal challenges by both the FTC and the DOJ's Antitrust Division. Mr. Meador's comments at the hearing also signal expected support for current efforts by Chairman Ferguson to combat "censorship" by big technology companies. Finally, given his past experience with the FTC's Health Care division, we expect Mr. Meador's presence to lead to an increased focus on health care matters, such as conduct by pharmaceutical companies and other major players.
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