Administration's Tough Talk Belies Cautious Approach on Antitrust

Taking over his agency four years ago, Jon Leibowitz was at the head of a group of Obama appointees seeking a tougher line on antitrust violations. But the action by the Federal Trade Commission against Google is the latest example of how enforcement has generally remained cautious and within the mainstream of antitrust law.

The administration has caused some pain for large corporations including AT&T, which abandoned its bid for rival cellphone provider T-Mobile USA after a Justice Department lawsuit. That case and others like it, though, relied on time-honored antitrust principles about avoiding excess concentration in an industry. "Being aggressive on antitrust enforcement is a lot harder in practice than it looks," said David Wales, a former antitrust regulator now at the law firm Jones Day, in part because regulators must ultimately win their cases in courts that have proved skeptical of expansive interpretations of antitrust law. The FTC was once eager for the Google probe, successfully pushing for jurisdiction over the Justice Department, with which it shares antitrust enforcement duties. As the investigation picked up steam, the agency enlisted high-profile corporate litigator Beth Wilkinson to help lead the effort. But even with three Obama nominees on the five-member commission, the FTC ultimately decided against moving ahead with a case.