Antitrust Cases Are Hard But Hindsight Is Easy

Politico published a bombshell article about the FTC's decision not to sue Google in 2013, complete with internal deliberative staff recommendations from agency lawyers and economists. For anyone interested in how the FTC works the piece is a must-read.

Agency recommendation memos rarely leak -- the FTC (and DOJ's) decisionmakers require candid and robust analysis and third parties need confidence that their most sensitive competitive plans and strategies won't see the light of day. I strongly suspect the source of the internal deliberative memos came from the Hill, which has turned antitrust into a front burner issue. The leak could have a significant impact on how FTC and DOJ staff write their recommendations; nuance, doubt, subtlety and close calls will be presented as easy decisions. Relatedly, third parties may not be so willing to cooperate with investigations if their strategic plans will be waived around to score political points.

All that may not matter much in comparison to the merits of what's happening here. Based on the state of the evidence at the time the FTC should have been quite concerned about losing in court, and being embarrassed in the process. It's quite easy to look back years later and see how marketplace events unfolded, it's quite another to convince a court that a dynamic and evolving marketplace, filled with tech giant competitors, would wind up being insufficient constraints in markets that were nascent at the time. The article assumes without argument that the FTC blew it -- I'm not so sure.