The debate over the scope of the Federal Trade Commission’s (FTC’s) enforcement authority under Section 5 of the FTC Act shows no signs of abating. The core of the debate focuses on to what extent the FTC has “standalone” Section 5 authority, meaning the authority to challenge conduct or practices as an “unfair method of competition” under Section 5 of the FTC Act when that conduct would not violate the Sherman Act or the Clayton Act.
Commissioner Meador argues for a reinvigoration of standalone Section 5 authority
During recent remarks at the September 14, 2026, Bill Kovacic Antitrust Salon in Washington D.C., Republican FTC Commissioner Mark Meador spoke about the “model, mission and future of the Federal Trade Commission,” arguing that “[m]oving forward begins with and centers on restoring Section 5’s independent function.”1 According to Meador, the FTC should return to its roots by recognizing that Congress granted the FTC a more expansive mandate to target “unfair methods of competition” under Section 5 of the FTC Act,2 including actively targeting conduct related to “evolving market practices” affecting nascent competitors even when the conduct does not fall within the ambit of the Sherman or Clayton Acts.
In Meador’s view, Congress intended Section 5 to serve a “dynamic function” that includes a broader mandate for the FTC than is available under the other federal antitrust laws. Meador considers enforcing this broader mandate to be “the core of the Commission’s mission—to identify and stop conduct that threatened competitive conditions, including practices the antitrust laws had not adequately captured.”3 Meador argues that limiting Section 5 enforcement to targeting only those unfair methods of competition that overlap with the other federal antitrust laws has effectively made enforcement by the two different antitrust agencies – the FTC and the Antitrust Division of the US Department of Justice (DOJ) – “indistinguishable.”4
Meador stresses that “enforcement is not the only part of the FTC’s mission” and that “the Commission’s expertise was never intended to exist solely for the benefit of the Commission itself.”5 He highlights the various other tools Congress delegated to the agency through the FTC Act, such as the authority to conduct “market- and industry-wide inquiries, compel information, publish [] findings, and make recommendations to Congress.” In addition, Meador cites the FTC’s authority to serve as a “master in chancery” upon referral by a federal court, arguing that this authority is “particularly relevant today as recent Section 2 enforcement . . . has underscored the difficulty courts have encountered in fashioning appropriate remedies that effectively address the competitive harms caused by monopolization.” Meador also references the FTC’s ongoing efforts to assist courts in decisions that may affect consumers or competition through its amicus program.6
While Meador explicitly advocates for the revival of Section 5’s “independent function” by encouraging the agency to bring more standalone Section 5 competition cases, he does not support the independence of the agency from the executive branch. Meador says there are “reasons to celebrate” the Supreme Court’s recent decision in Trump v. Slaughter7 giving the President the power to fire FTC Commissioners without cause, a decision which dealt a fatal blow to the FTC’s status as an independent agency. Meador argues that the efforts of prior agency leadership to assert the FTC’s “purported independence” led to enforcement policy that “favor[ed] matters presenting comparatively clear paths to victory over cutting edge enforcement challenges.”8
Background: The debate over FTC’s Section 5 “unfair methods of competition” authority
For decades, the scope of the FTC’s competition enforcement authority under Section 5 of the FTC Act has been a contested issue among Commissioners. This culminated in 2015, when the FTC – under Democratic leadership – issued a barebones Statement of Enforcement Principles9 outlining a narrow policy for FTC standalone enforcement of the “unfair methods of competition” provision of Section 5. According to the 2015 Statement, the agency’s assessment and enforcement of standalone “unfair methods of competition” under Section 5 should be: (1) guided by the antitrust laws and the promotion of the consumer welfare standard; (2) evaluated under a framework similar to the “rule of reason;” and (3) limited when the Sherman or Clayton Acts are “sufficient to address the competitive harm arising from the act or practice.”10
In 2021 the FTC – under the leadership of Democratic Chairwoman Lina Khan – voted to rescind the agency’s 2015 Statement on Section 5, replacing it in 2022 with a Policy Statement11 that outlined a significant and essentially unlimited expansion of the FTC’s standalone Section 5 authority. The 2022 Policy Statement argues that "unfair methods of competition" need not require a showing of current anticompetitive harm or anticompetitive intent in every case, and that Section 5 should extend to conduct that does not violate the letter of the antitrust laws. Specifically, the 2022 Statement says that the FTC will consider conduct "unfair" if it is a "method of competition" that goes beyond "competition on the merits" (i.e., is coercive, exploitative, collusive, abusive, deceptive, predatory, or otherwise restrictive or exclusionary, and tends to negatively affect competitive conditions), even without a separate showing of market power or market definition. The Statement also includes a "non-exclusive" list of examples, including "incipient violations" of the antitrust laws such as loyalty rebates, tying, bundling, exclusive dealing, and mergers that have the tendency to ripen into violations, as well as conduct that "violates the spirit of the antitrust laws." Then-Republican Commissioner Christine Wilson dissented to the 2022 Policy Statement, calling it an “unbounded application of Section 5” that “establishes a model that will provide neither clarity nor consistency in enforcement.”12
Meador levels bipartisan critique of his predecessors’ Section 5 philosophies. He criticizes the 2015 Policy Statement for doing “little to define what constitutes a standalone Section 5 violation or to provide concrete examples of an unfair method of competition”, and also rejects the views of former Republican Commissioner Joshua Wright and Republican Commissioner Maureen Ohlhausen that Section 5 be “strictly limited to traditional antitrust claims and used on only very rare occasion.”13 Interestingly, Meador does not address the merits of the 2022 Policy Statement on Section 5 issued during the tenure of former Democratic Chair Lina Khan which largely mirrors his philosophy of a more expansive mandate to bring standalone Section 5 unfair methods of competition cases. He does, however, criticize Chair Khan for using the FTC’s independence as an “excuse for incompetence” during her tenure.14
Commissioner Meador advocates for more standalone Section 5 “unfair methods of competition” enforcement than the Ferguson FTC has pursued to date
Since taking over as FTC Chair in 2025, Republican Andrew Ferguson has neither explicitly rejected nor endorsed the 2022 Section 5 Policy Statement issued under his progressive predecessor Chair Khan, which remains formally on the books. To date, Chair Ferguson has addressed Section 5 in the context of the agency’s enforcement of noncompete agreements. In a statement related to a September 2025 consent order issued in a Section 5 noncompete case, Chair Ferguson asserted that the Commission applies a case-specific reasonableness inquiry to assess the lawfulness of noncompete agreements.15 Chair Ferguson reiterated this standard in an April 2026 joint statement with Commissioner Meador related to the FTC’s finding that Rollins, Inc.’s use of noncompete agreements was an unfair method of competition under Section 5, writing that “the Commission reviews the lawfulness of noncompete agreements on a case-by-case basis under a reasonableness inquiry. Under that balancing test, which is a particular application of the rule of reason, a noncompete agreement violates the antitrust laws where the anticompetitive effects of the restraint outweigh any procompetitive effects that could not be achieved through substantially less restrictive means.”16
Chair Ferguson does not seem to share Commissioner Meador’s concern that the FTC’s competition enforcement program has become “indistinguishable”17 from that of the DOJ. On the contrary, Chair Ferguson seems to be—if not encouraging, at least facilitating—the convergence of the two agencies’ enforcement programs. In his remarks at the Georgetown Law Antitrust Enforcement Symposium on September 15, Chair Ferguson asserted that the FTC is “well and fully done” bringing both competition and consumer protection conduct cases in the agency’s Part III administrative tribunals. With respect to merger enforcement, while Ferguson denied that the FTC intends to completely cease bringing Part III merger challenges during his tenure, he indicated that the agency intends to move away from Part III adjudication in order to align with the merger enforcement approach of DOJ (i.e., seeking permanent injunctions in federal court rather than asking a Part III administrative judge in parallel to block the deal).18 However, Ferguson also recently pushed back on the suggestion that the FTC’s entire competition enforcement function be transferred to DOJ, arguing instead in favor of an approach that would “soften the rough areas of friction between the agencies.”19
Uncertainty and debate over the bounds of the FTC’s Section 5 authority will only continue
Meador’s September 14 remarks do not provide clarity on what conduct may amount to a standalone Section 5 violation. While he contends that the FTC’s previous Section 5 enforcement efforts have failed to deliver “clearer guidance on where to draw the line in determining when competitive practices violate the antitrust laws and the FTC Act itself,”20 he does not attempt to draw that line. Rather, Meador articulates the view that “[t]he prohibition against unfair methods of competition was meant to develop through enforcement. By applying Section 5 to evolving market practices and confronting difficult questions about where to draw the line, the Commission can once again focus on effective enforcement, which can in turn provide clear guidance and play the gap-filling role Congress originally envisioned when it created the FTC.”21 However, previous statements by Meador do provide some guidance. For example, in a September 2025 statement in support of his vote to vacate the FTC’s noncompete rule, Meador described what he considers to be a difference between the Sherman Act and Section 5’s unfair methods of competition provision.22 In this statement, Meador argued that, in contrast with the Sherman Act, Section 5 “allows the Commission to address anticompetitive practices that result in adverse economic effects even absent traditional showings of market power or structural harms.”23 A lack of market power requirement in Section 5 would potentially facilitate a significantly broader application of Section 5 and one that would be consistent with the approach of former Chair Khan.
All in all, Meador’s remarks show that the debate over the contours of standalone Section 5 authority is likely to continue.
Footnotes
1 Mark R. Meador, The Model, Mission, and Future of the Federal Trade Commission (Sept. 14, 2026) at 6, available at https://www.ftc.gov/news-events/news/speeches/model-mission-future-federal-trade-commission
2 15 U.S.C. § 45
3 Meador, The Model, Mission, and Future of the Federal Trade Commission at 2.
4 Id. at 4.
5 Id. at 6.
6 Id.
7 Trump v. Slaughter, 609 U.S. _____ (2026) (Docket No. 25-332).
8 Meador, The Model, Mission, and Future of the Federal Trade Commission at 3.
9 Federal Trade Commission, Statement of Enforcement Principles Regarding “Unfair Methods of Competition” Under Section 5 of the FTC Act (Aug. 13, 2015) available at https://www.ftc.gov/system/files/documents/public_statements/735201/150813section5enforcement.pdf.
10 Id.
11 Federal Trade Commission, Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act, Commission File No. P221202 (Nov. 10, 2022), available at https://www.ftc.gov/system/files/ftc_gov/pdf/P221202Section5PolicyStatement.pdf.
12 Federal Trade Commission, Dissenting Statement of Commissioner Christine S. Wilson Regarding the “Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act”, Commission File No. P221202 (Nov. 10, 2022), available at https://www.ftc.gov/system/files/ftc_gov/pdf/P221202Section5PolicyWilsonDissentStmt.pdf.
13 Meador, The Model, Mission, and Future of the Federal Trade Commission at 3-4.
14 Id. at 5.
15 Federal Trade Commission, Statement of Chairman Andrew N. Ferguson Joined by Commissioner Melissa Holyoak In the Matter of Gateway Pet Memorial Services, Matter No. 2210170 (Sept. 4, 2025), available at https://www.ftc.gov/system/files/ftc_gov/pdf/gateway-ferguson-holyoak-statement-2025.09.04.pdf.
16 Federal Trade Commission, Statement of Chairman Andrew N. Ferguson Joined by Commissioner Mark R. Meador In the Matter of Rollins, Inc., Matter No. 2510011 (Apr. 15, 2026), available at https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-statement-rollins.pdf.
17 Meador, The Model, Mission, and Future of the Federal Trade Commission at 4.
18 These most recent statements mirror remarks Ferguson made in February 2026 at George Mason Law School’s annual antitrust symposium, where he justified his preference for bringing merger challenges exclusively in federal court in order to “align with the standard that the [U.S.] Department of Justice has to comply with in order to get an injunction of a merger.” See Matthew Perlman, FTC Chair Wants Merger Cases Filed Only in Fed. Court (Feb. 20, 2026) available at https://www.law360.com/articles/2444452/ftc-chair-wants-merger-cases-filed-only-in-fed-court.
19 Matthew Perlman, FTC Chair Defends Overlapping Antitrust Authorities Sept.18, 2026) available at https://www.law360.com/articles/2527289/ftc-chair-defends-overlapping-antitrust-authorities.
20 Meador, The Model, Mission, and Future of the Federal Trade Commission at 3.
21 Id. at 6.
22 Federal Trade Commission, Statement of Commissioner Mark R. Meador In the Matter of Non-Compete Clauses, Matter No. P201200 (Sept. 5, 2025) available at https://www.ftc.gov/system/files/ftc_gov/pdf/meador-statement-noncompete-agreements-9.5.25.pdf.
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