Marina Lao Examines the FTC’s Untapped Antitrust Powers

Law professor Marina Lao argues the agency could use its Section 5 authority and rulemaking powers more broadly to address gaps in conventional antitrust law. 

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As debate intensifies over whether traditional antitrust law is equipped to address today’s economy, Seton Hall Law Professor Marina Lao is looking beyond the conventional boundaries of the Sherman and Clayton acts. 

In a keynote address at the 2026 Denver Law Review Antitrust Symposium, Lao examined two tools she argues could help recalibrate antitrust enforcement without waiting for Congress to act: the Federal Trade Commission’s distinct competition authority under Section 5 of the FTC Act and its authority to engage in competition rulemaking. Her remarks, titled “The FTC’s Competition Mandate: Its Scope, and Potential Reach Beyond Conventional Antitrust Doctrines,” are forthcoming in the Denver Law Review. 

For law students learning the foundations of antitrust, Section 5 presents an important distinction. While the Sherman Act and Clayton Act provide the traditional framework for federal antitrust enforcement, Section 5 prohibits “unfair methods of competition,” or UMC. 

Lao argues that courts have for decades treated Section 5 as essentially coterminous with the Sherman Act, limiting the FTC to established antitrust doctrines. She contends that interpretation is inconsistent with the history and language of the FTC Act. “There is little Section 5 competition law apart from the Sherman Act,” Lao said. “This is where I think some changes would be desirable and possible.” 

Congress created the FTC in 1914 after the Supreme Court’s landmark Standard Oil decision applied the rule of reason to Sherman Act enforcement. Lao argues that Congress believed the approach could leave some practices that harmed competition beyond the reach of antitrust law. “Congress left no doubt whatsoever that Section 5 was designed to be more expansive than the Sherman Act,” she said. 

The FTC initially brought “standalone” Section 5 cases that did not depend on Sherman Act theories. But after several appellate defeats in the 1970s, the agency largely retreated from that approach and generally followed the courts’ interpretation of conventional antitrust law. Lao argues that retreat was unwarranted and that the FTC should reconsider the broader authority Congress gave it. “A strong case can be made that Section 5 is not coterminous with the other principal antitrust laws,” she said. “Its UMC mandate is distinct, and it provides an independent basis for liability for anticompetitive conduct that may not otherwise violate the main antitrust laws.” 

Lao’s second focus is competition rulemaking. She argues that case-by-case enforcement is not always sufficient to address systemic or recurring competition problems. Section 6(g) of the FTC Act, she contends, gives the FTC rulemaking authority broad enough to include substantive competition rules. 
That authority is not unlimited. Lao acknowledges that the major questions doctrine, which has become increasingly significant in administrative law, may constrain the scope of rules the FTC can adopt. But she argues it does not categorically prevent the agency from using competition rulemaking. 

The broader antitrust debate provides the backdrop for both proposals. Lao points to concerns about economic concentration, narrow approaches to dominant-firm conduct, potential harms to workers and other market participants and the limits of relying exclusively on enforcement after anticompetitive conduct has occurred. 

For Lao, a broader reading of Section 5 and more robust use of rulemaking could give the FTC additional tools to address those concerns while staying within its existing statutory authority. “Section 5 could and should be read more expansively to reach conduct that falls outside of the Sherman Act’s doctrinal boundaries and restrictive confines,” she said. 

Her conclusion is also a challenge to the agency: Use the authority Congress gave the FTC more boldly, even when the outcome is uncertain. Bold agency action, she argues, can inspire change and ultimately move antitrust law forward.