The FTC holds rulemaking authority to regulate unfair methods of competition (UMC), and one of the regulatory goals it has set for 2022 is to use that power to enact ex ante rules of per se illegality.

The FTC’s plan violates settled case law, ignores statutory language, and overlooks the fact it lacks any congressional mandate to engage in UMC rulemakings. Its only mandate is to engage in rulemaking for consumer-protection matters.

The FTC’s plan to engage in UMC rulemaking activity is not just illegal, but also economically harmful as it embodies the logic of the precautionary principle—preemptively banning innovative and disruptive behaviors.

Antitrust through preemptive rules of per se illegality—or “precautionary antitrust”—borrows from the European school of precautionary antitrust already at play with the Digital Markets Act.

U.S. antitrust agencies should push back, rather than endorse European precautionary antitrust, given the costs such a static approach impose on American innovation and consumers.