How the FTC Could Address Its Concerns About Google Without a Lawsuit

If the Federal Trade Commission brings an antitrust case against Google, the company has two fundamental courses of action: Settle or fight. If it settles, the result will be a negotiated order that applies to Google, and Google only. The same will happen at the end of a lawsuit, assuming the FTC wins, which isn’t exactly certain. There is another course of action the FTC could take, and has been known to take before: Issue guidelines.

David Balto, a former FTC litigator during the Clinton Administration, says enforcement actions can be messy, and even when they’re successful they only apply to the target, not to anyone else. “Antitrust law is a really narrow tool,” he told me. “It doesn’t really fit in a lot of situations.” Guidelines would apply to everyone and would set ground rules for every participant in the market, including Google, Microsoft, Yahoo and whoever else might be affected. And all parties would benefit from participating in the dialogue leading up to the crafting of the guidelines: In the end, there would be a more informed consensus, and everyone involved will know the rules of the road. It would be more complex and would take longer than it did 10 years ago, Balto says, but in the end, the FTC’s mission is to protect consumer welfare, not bring big and costly lawsuits.