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GAL COMPETITION PROJECT UNITED STATES Institutional Performance Norms

GAL COMPETITION PROJECT UNITED STATES Institutional Performance Norms. Harry First, Eleanor Fox, and Daniel Hemli February 5, 2011. OPERATIONAL EFFICIENCY. Overall investigations Merger review: a regulatory system agency clearance second requests: streamlining the process non-HSR reviews

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GAL COMPETITION PROJECT UNITED STATES Institutional Performance Norms

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  1. GAL COMPETITION PROJECTUNITED STATESInstitutional Performance Norms Harry First, Eleanor Fox, and Daniel Hemli February 5, 2011

  2. OPERATIONAL EFFICIENCY • Overall investigations • Merger review: a regulatory system • agency clearance • second requests: streamlining the process • non-HSR reviews • Litigation time • FTC: too slow? new 2009 rules • DOJ: too slow? few cases, no criticism • no internal data

  3. EXPERTISE • Staff • large staffs • economists: well-trained; integrated • DOJ: sometimes hires out for litigators • Leadership • DOJ: no formal qualifications • FTC Commissioners: sparse representation of economists or business executives • ALJs: appointment not controlled by FTC

  4. TRANSPARENCY • Ex ante • guidelines • public workshops and speeches • advisory opinions/business review letters • Ex post • settlements: consent decrees/orders • closing statements • But what do you see?

  5. ACCOUNTABILITY • Data availability • Executive branch control • removal of appointees • sporadic review of DOJ activities • Congressional control • legislation • budget • oversight • Judicial control: “the shadow of the law”

  6. RULE OF LAW • Criminal enforcement • Constitutional constraints • Civil enforcement • variability when Administrations change • dominance of economics • Political concerns • political elections • political values

  7. FLASHPOINTS • Merger review • Declinations • use of closing statements • Qualifications: ALJs • Institutional restructuring • DOJ as criminal cartel prosecutor • FTC as administrative agency

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