1. GAL COMPETITION PROJECT UNITED STATES Institutional Performance Norms Harry First, Eleanor Fox, and Daniel Hemli February 5, 2011

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

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

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

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

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

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