This short article analyzes the "pure" Section 5 allegations in the recent FTC complaint against Intel. It first shows that Section 5 of the Federal Trade Commission Act is more encompassing than the Sherman Act and why this breath is in the public interest. It next analyzes allegations from the Intel Complaint, showing why each appears to be in the public interest yet might not be permitted by the Sherman Act. It also discusses other advantages that would arise if these charges were litigated under Section 5 rather than the Sherman Act.
The article notes assertions by Intel and others that any interpretation of Section 5 that goes beyond the Sherman Act is unduly or even unconstitutionally unpredictable and without principles. As a reaction, in its final section the article briefly explains the "consumer choice" approach to antitrust. The article concludes by demonstrating that if the Commission employs the consumer choice framework, any violation of Section 5 will be both in the public interest and not unduly standardless, regardless whether that conduct also would violate the Sherman Act.
FTC v. Intel: Applying the "Consumer Choice" Framework to "Pure" Section 5 Allegations, 2 The CPI Antitrust Journal 2 (2010)