The White House announced a slate of administrative nominations Jan. 13, including David MacNeil—founder and CEO of WeatherTech—to fill the Federal Trade Commission (FTC) seat vacated by Melissa Holyoak, who left last November to serve as interim U.S. attorney for the District of Utah.
MacNeil made his fortune by importing and later manufacturing (here in the United States) aftermarket auto floor mats and accessories. Forbes describes him as a Mar-a-Lago member who has donated more than $3 million to Trump campaigns, affiliated PACs, and inaugurations.
I’m not quite sure what to make of the pick. The FTC Act imposes no requirement that commissioners be lawyers or economists; and, for better or worse, at least one prior Trump appointee, Rohit Chopra, fit neither mold. Serious business experience could be relevant to the job and, perhaps, an asset to the commission.
Still, the FTC is a law-enforcement agency, and the laws it enforces rest heavily on economic reasoning. While a background in antitrust law, consumer protection law, or industrial-organization economics is not legally required, the fields are central to the FTC’s statutory mission and a lack of expertise in any of the three is, at best, a limitation. As far as I can tell from public sources and a short writeup by Paul Steidler, MacNeil holds no degree in law or economics; he reportedly attended Dominican University as an undergraduate before leaving to pursue business.
MacNeil is also a vocal advocate of American manufacturing, which could intersect with FTC authority at the margins. The agency enforces the Made in USA Labeling Rule, and truthful and non-misleading product-origin claims that are material to consumers are part of the FTC’s portfolio, if a small part.
Beyond that, it is hard to know what to expect if the Senate confirms him. I confess I had never heard of MacNeil before the nomination—despite having purchased aftermarket floor mats, possibly even WeatherTech’s. More puzzling is why a billionaire with no evident interest in antitrust or consumer protection policy would seek an appointment that could last until September 2032, given the requisite financial disclosures, ethics restrictions, and constraints on outside business activity.
There is also the institutional question. What difference does a third Republican commissioner make on a three-member commission? Most significant issues before the commission are decided by majority vote of the sitting commissioners. The commissioner designated FTC chairman by the president is the first among equals, possessing agenda-setting authority in addition to his or her single vote. If there are no ties to break, there’s not much chance to be a tiebreaker. Reports that FTC Chair Andrew Ferguson may be headed to a role at the U.S. Justice Department (DOJ) only add to the uncertainty, although when or whether such a role would involve his departure from the FTC remains unclear too.
I would like to have a firmer take. Blog readers expect takes; that is, after all, what blogs are for. But my analysis yields only two conclusions: (1) interesting times, and (2) who knows?
A Hard Case, and a Good One
Just over a week ago, I praised an FTC antitrust win in federal court. Judge Rudolph Contreras of the U.S. District Court for the District of Columbia granted the FTC’s motion for a preliminary injunction blocking Edwards Lifesciences’ proposed acquisition of JenaValve Technology, pending resolution of the commission’s Part 3 administrative complaint. The FTC brought the case under Section 7 of the Clayton Act and, predictably, Sections 5 and 18 of the FTC Act. The decision remains sealed while the parties finalize a redacted memorandum and order, but public release should follow soon.
That praise came with caveats. Much about the case remained unclear, given the heavily redacted complaint and the many unresolved contingencies. Still, the theory struck me as plausible and potentially important. As I put it at the time, my hunch was that FTC staff got this one right.
The case is challenging for several reasons. Most notably, it involves potential competition between products that are not yet on the market. Both remain in development, subject to further testing and Food and Drug Administration (FDA) approval, and would, according to the complaint, compete in a market that does not yet exist—and might come to comprise just those two products.
The putative market is also unusually narrow: transcatheter aortic valve replacement (TAVR) devices approved to treat aortic valve regurgitation (AR) for high-risk patients. For certain such patients, these devices appear to lack close therapeutic substitutes. That narrow market definition finds some support in the investigational device exemption (IDE) that permits the clinical trials underway for one of the key products at issue. Such studies consider the safety and effectiveness of a device, for a disease indication, in a patient population. And the IDE granted to JenaValve permits “[a] Study to Assess Safety and Effectiveness of the JenaValve Trilogy™ Heart Valve System in the Treatment of High Surgical Risk Patients With Symptomatic, Severe Aortic Regurgitation (AR).” That is, a study of the device, indication, and patient population that describes the FTC’s proposed market definition.
Some might label this a “submarket,” although U.S. District Court Judge James Boasberg recently—and rightly—called that term a misnomer in his opinion in FTC v. Meta. I have only a modest and dated background in physiology and none in cardiology or cardiothoracic surgery. Acknowledging those limitations, I found the FTC’s allegations at least plausible. The market did not appear fanciful, gerrymandered, or competitively trivial, and the competitive concerns did not seem merely speculative.
Of course, I could be wrong. This may yet prove a case where uncertainty overwhelms inference. The contingencies are real. Both products remain in clinical trials, and FDA approval depends on their outcomes. Other products are under investigation. Clinical practice—including experience with the products in question—may evolve in ways that reshape demand and substitution patterns. But based on what we can see so far, the facts cut against my usual skepticism of very narrow markets and potential competition.
All of which leads to a broader, and largely uncontroversial, point: good merger cases still exist, and agency staff remain fully capable of bringing them. Sometimes, the hard cases really are the right ones to litigate.
An Appeal in Search of a Theory
The FTC announced Jan. 20 that it had filed a notice of appeal with the U.S. Circuit Court of Appeals for the D.C. Circuit in the aforementioned Meta case. The appeal itself is not yet public, but I look forward to reading it—with interest, if not amazement.
Daniel Guarnera, director of the FTC’s Bureau of Competition, offered the following reassurance:
The Trump-Vance FTC will continue fighting its historic case against Meta to ensure that competition can thrive across the country to the benefit of all Americans and U.S. businesses.
I have nothing against Guarnera as BC director (or otherwise), and I have no idea who ultimately decided to appeal. But the agency’s best hope is that the appeal proves less “historic” than advertised.
Spoiler alert: the agency is very likely to lose—again.
We are now more than a decade removed from the Instagram (2012) and WhatsApp (2014) acquisitions alleged to form part of Meta’s monopolization strategy, and five years past the FTC’s initial complaint. Agency resources are finite. There are good and difficult cases to bring. This is not one that justifies continued expenditure. My International Center for Law & Economics (ICLE) colleague Brian Albrecht has made the same point.
It is worth lingering on that conclusion, if not by rehashing Judge Boasberg’s careful 89-page opinion or recapping my earlier critiques of the FTC’s case (here and here), or summarizing others’ analyses (Brian Albrecht, Alden Abbott, Joe Coniglio). The opinion and the commentary already cover the FTC’s market definition, monopoly-power arguments, network-effects claims, and related shortcomings in detail.
Instead, I’ll repeat—with redundant apologies for redundancy—the part of my April 2025 discussion that struck me as least interesting then: the FTC’s reliance on “hot docs”:
C-Suites Say the Darndest Things, But So What?
This is the “hot docs” question, with the FTC spending a good deal of time attending to hoary emails in an attempt to show anticompetitive intent. Such evidence is not necessarily irrelevant, to the extent it might provide a circumstantial bolster for allegations of effects.
Still, effects matter directly, and intent is not an element of a Section 2 claim: there’s no mens rea issue here. Moreover, a decade or more post-merger, that sort of evidence can cut both ways, as it underscores the question of why there isn’t better direct evidence of competitive effects.
The problem with email generally is that C-suite executives, like kids, can say the darndest things. Indeed, they should say and consider many things. Selected excerpts from a multitude of documents (and discovery yields multitudes) might suggest any number of things about intent. What dated excerpts show about current intent is anyone’s guess.
More than that, the excerpts in question seem suggestive of complex concerns and interests, just as one might expect. It’s not at all obvious that they signal an intent to acquire instead of competing. The deals were not “killer acquisitions”; Instagram and WhatsApp were nurtured, not killed. But for some unpacking of the complexity of the concerns that were voiced, see Will Rinehart’s 2023 discussion. And more generally, see this article by Geoff Manne and E. Marcellus Williamson. Maybe the docs are not that hot after all.
None of this supplies a plausible basis for concluding that Judge Boasberg got the case wrong.
To illustrate why the appeal reflects a misallocation of resources, it might help to revisit the timeline and the decision points at which the FTC might reasonably have changed course.
Facebook acquired Instagram in 2012 and WhatsApp in 2014. Both transactions were reported to U.S. antitrust agencies and reviewed by the FTC. The commission raised no objections, demanded no remedies, and filed no complaints. The 2012 vote to issue closing letters was unanimous (5–0). UK and EU authorities also cleared the deals. The transactions closed as proposed.
Issuing a closing letter does not bar post-consummation review. Still, it provides as much assurance as merging parties typically receive. Many observers were therefore surprised when the FTC opened a new investigation in 2020, and even more surprised when it filed a complaint in the final days of the first Trump administration—surprise across the antitrust bar and, for that matter, inside the agency itself.
Equally striking was the FTC’s choice to proceed under Section 2 of the Sherman Act—framing the acquisitions as part of a broader monopolization scheme—rather than as discrete Clayton Act Section 7 violations. Judge Boasberg dismissed the initial complaint in June 2021 as legally insufficient, ruling that the FTC had failed to plead enough facts to plausibly establish monopoly power in a relevant market—necessary elements of its Section 2 claims.
The dismissal came shortly after Lina Khan’s appointment to the commission and her designation as FTC chair, as did the FTC’s amended complaint and, shortly thereafter, its substitute amended complaint. Those filings were predictable, if not persuasive, given Boasberg’s explicit skepticism regarding the FTC’s market definition and market-share allegations.
One might have expected the case to continue under new leadership at the start of the second Trump administration—perhaps even more so given the new leadership’s rhetoric about Big Tech (here and here, and given similar rhetoric from DOJ Antitrust Division leadership). New leadership often lets inherited cases run. At the same time, this case had always looked like uphill sledding.
The commission showed no similar hesitation in abandoning a poorly conceived Robinson-Patman Act case against Pepsi, doing so with notable bluntness:
The Biden-Harris FTC rushed to authorize this case just three days before President Trump’s inauguration in a nakedly political effort to commit this administration to pursuing little more than a hunch that Pepsi had violated the law.
Yet even the FTC’s substitute amended complaint still rested on an alleged pattern of monopolization as evidenced by exactly two acquisitions, both consummated more than a decade earlier. And by that point, the agency had not yet absorbed the costs of trying the case.
Another inflection point arrived in April 2025, when Judge Boasberg allowed the second amended complaint to proceed—barely:
Under the forgiving summary-judgment standard, the FTC has put forward evidence for a reasonable factfinder to rule in its favor. Prevailing here, however, does not obscure the fact that the Commission faces hard questions about whether its claims can hold up in the crucible of trial. Indeed, its positions at time strain this country’s creaking antitrust precedents to their limits.
Trial ran from April through May 2025. Boasberg issued his opinion Nov. 18 and a revised version Dec. 2. The differences were immaterial, aside from lifted redactions.
As Boasberg summarized:
In this fifth year of litigation, the Court held a lengthy bench trial, hearing from myriad witnesses throughout the industry, as well as from dueling sets of experts. As it has forecast in prior Opinions over the years, the FTC has an uphill battle to establish the contours of any separate PSN market and Defendant’s monopoly therein. The Court ultimately concludes that the agency has not carried its burden: Meta holds no monopoly in the relevant market. Judgment must therefore be entered in its favor.
The writing had long been on the wall; now it bore the judge’s signature.
After reflection, I stand by my earlier assessment:
The memorandum doesn’t exactly provide the law & economics analysis I would have produced, had anyone asked for it. But it is, nonetheless, a good decision by a thoughtful, generalist trial-court judge wrestling with both the evidence before him and relevant precedent. He got key things right, not least of which was the decision for the defendant.
The FTC expressed disappointment, as expected. More unusual was a quote from FTC spokesman Joe Simonson, who attacked the judge personally:
“We are deeply disappointed in this decision. The deck was always stacked against us with Judge Boasberg, who is currently facing articles of impeachment. We are reviewing all our options.”
That remark drew widespread criticism. The commission itself said nothing. Agency leadership should not, as a general matter, disparage its own staff, but Simonson’s attack on the integrity of a sitting federal judge seemed beyond the pale. Chairman Andrew Ferguson should have distanced the agency from the comment to preserve its credibility with the courts, and not just Judge Boasberg himself.
Time passed. Many assumed the case was over. Then, two months after the decision, the FTC announced:
Today, the Federal Trade Commission filed a notice that it will appeal the U.S. District Court for the District of Columbia’s November 2025 ruling in favor of Meta Platforms, Inc. (“Meta”) in the FTC’s monopolization case against Meta. The appeal will be heard by the U.S. Court of Appeals for the District of Columbia.
So it isn’t over.
Which brings us back to the question: what, exactly, is the FTC seeking—and at what cost?
A Section 7 do-over is unavailable. Further, no one expects the D.C. Circuit to review the Section 2 case de novo. Boasberg’s ruling rests not only on legal conclusions but on extensive factual findings that will be hard to reconcile with a viable Section 2 case—findings appellate courts rarely disturb.
Is the FTC arguing that Boasberg erred as a matter of law in assessing monopoly power? If so, at what point in time—2012? 2014? 2021? The district court’s findings cut against monopoly power across the board. And Section 2 requires more than monopoly power: it requires exclusionary conduct that harms competition and consumers. The findings suggest ongoing dynamism and competitively significant entry in social media, with new and improved features, no apparent reduction in output, and monetary prices holding steady at zero. Apart from a wan story about ad-load (also dissected by Boasberg), where’s the competitive harm?
For that matter, what did the FTC even seek to establish at trial with regard to the WhatsApp deal, which was one of two planks of the allegedly ongoing course of unlawful monopolization?
Appeals are not trivial. Suppose briefing proceeds in 2026, argument follows, and a decision arrives in early 2027. Suppose—against the odds—the D.C. Circuit reverses and remands. The case returns to Judge Boasberg.
More process. More money. And still no clear path to a meaningful remedy.
Divestiture now seems implausible. Behavioral remedies would require years of supervision, perhaps a decade. To what end? What would plausibly improve competition or consumer welfare in 2027—or in 2037? Are consumers lacking for social media? Photo-sharing apps? Messaging options?
We shall see what we shall see.
Rewriting Antitrust, California-Style
In 2022, the California Legislature adopted Assembly Concurrent Resolution 95 (2022 Cal. Stat. res. ch. 147), directing the California Law Revision Commission (CLRC) to undertake a substantive review of the state’s antitrust laws. The mandate was broad—perhaps too broad. The CLRC was asked to report on:
(1) Whether the law should be revised to outlaw monopolies by single companies as outlawed by Section 2 of the Sherman Act, as proposed in New York State’s “Twenty–First Century Anti–Trust Act” and in the “Competition and Antitrust Law Enforcement Reform Act of 2021” introduced in the United States Senate, or as outlawed in other Jurisdictions.
(2) Whether the law should be revised in the context of technology companies so that analysis of antitrust injury in that setting reflects competitive benefits such as innovation and permitting the personal freedom of individuals to start their own businesses and not solely whether such monopolies act to raise prices.
(3) Whether the law should be revised in any other fashion such as approvals for mergers and acquisitions and any limitation of existing statutory exemptions to the state’s antitrust laws to promote and ensure the tangible and intangible benefits of free market competition for Californians.
I see little need for California law to replicate Section 2 of the Sherman Act, which already applies in California as elsewhere. More troubling is the CLRC’s apparent inclination to untether the state’s Cartwright Act from settled Section 2 jurisprudence. I am also skeptical that sector-specific—or narrower—revisions to state antitrust law will advance competition or consumer welfare, in California or beyond, at least as framed here.
But I am getting ahead of myself. The CLRC was tasked with studying and reporting, and it has done—and continues to do—exactly that. The process has produced a great deal of paper. A useful first collection of links—covering staff memoranda, tentative recommendations, commission decisions, and public comments—can be found here.
By way of example, in March 2025, CLRC staff released a memorandum proposing draft language on single-firm conduct. I will have more to say as this process continues. For now, I recommend ICLE’s comments on that memorandum, which echo several of my own concerns—particularly the CLRC’s apparent “intent to distance California law from federal antitrust jurisprudence.” As ICLE explains:
There are important reasons to believe that it would be unwise to untether California antitrust law from U.S. antitrust law’s error-cost framework, effects-based analysis, and consumer welfare standard. Abandoning these principles in favor of a more interventionist (or European-inspired) approach would likely chill innovation and harm consumers in the long run . . .
These comments further caution against expanding antitrust enforcement to protect “trading partners” (such as suppliers or workers) as a distinct objective. Using antitrust law to shield an idiosyncratic selection of rivals and other trading partners, rather than focusing on protecting competition and consumers, would risk politicizing enforcement and undermining economic efficiency.
Such shifts would not stop at California’s borders. They would export risk nationally.
From a more recent round of comments on proposed amendments to California’s unilateral-conduct rules—this time styled as a “Tentative Recommendation”—I also recommend submissions from Bilal Sayyed and TechFreedom, Joe Coniglio and the Information Technology and Innovation Foundation (ITIF), and Daniel Francis of NYU School of Law.
And there is more. Single-firm conduct is only one of eight CLRC working groups. The others address: (1) Mergers and Acquisitions, (2) Concerted Action, (3) Consumer Welfare Standard, (4) Technology Platforms, (5) Enforcement and Exemptions, (6) Concentration in California, and (7) Artificial Intelligence.
I have not yet begun to kvetch.
