A Conversation with FTC Commissioner Melissa Holyoak Hosted by Alden Abbott

Recently appointed Commissioner Melissa Holyoak of the Federal Trade Commission (FTC) joined Alden Abbott, Mercatus Senior Research Fellow and former FTC General Counsel, for a conversation on the current landscape of antitrust enforcement and consumer protection.

Commissioner Holyoak shared her perspective on evolving antitrust policies and their implications for businesses and consumers, and highlighted the Commission’s major ongoing priorities. 

Transcript

Alden Abbott: Greetings. I'm Alden Abbott, Senior Research Fellow at the Mercatus Center, a research organization at George Mason University that advances knowledge about how markets solve problems and help us lead happier, healthier, and richer lives. I oversee Mercatus' research on competition policy and formerly served as a General Counsel of the Federal Trade Commission.

Today I'm delighted to host a webinar, Fireside Chat with Melissa Holyoak, who was sworn in on March 25, 2024, as a Commissioner of the Federal Trade Commission. She brings to her new position extensive experience as a litigator and leader. Most recently, she served as Solicitor General with the Utah Attorney General's Office, where she oversaw civil appeals, criminal appeals, constitutional defense and special litigation, and antitrust and data privacy divisions. She also managed multi-state matters, those involving consumer protection and antitrust claims. Before taking on that role, she served as President and General Counsel of Hamilton Lincoln Law Institute, a Washington, DC-based public interest law firm, and in other public interest attorney positions with the Competitive Enterprise Institute and the Center for Class Action Fairness.

Commissioner Holyoak graduated from the University of Utah S.J. Quinney College of Law in 2003 as a member of the Order of the Coif and the Law Review. She is a member of the Bars of Utah and District of Columbia and an inactive member of the Missouri State Bar. Okay, so let's get started. I'm going to ask Commissioner Holyoak several questions to which she will respond, I have no doubt, in brilliant fashion. First, Commissioner, what got you interested in the FTC and its work?

Melissa Holyoak: Thank you. I just want to start off by first saying, Alden, thank you so much, and thank you to the Mercatus Institute. I'm so happy to be here - Mercatus Center. I do want to mention a little bit about my-- before getting into my role as Solicitor General, which I think is why I really got interested in the FTC, that I've really always been interested in consumer protection issues and was really heavily focused on that with the Center for Class Action Fairness. My interest with the FTC and that work really was solidified when I was Solicitor General.

As Solicitor General, as you mentioned, I oversaw the antitrust and data privacy divisions. In that regard, became not only overseeing the state's work in our litigation with respect to anti-competitive practices but also became heavily involved in our merger review cases. That is where a lot of our FTC work, our coordination as a state with the FTC, where that came to be. It was a great experience working directly with the FTC on those matters. That's when I became very interested in that work and was able to see what the FTC did, and also gave me quite a good perspective, now that I'm at the Commission, on seeing how the state works on these issues and as we work with those partners on these types of cases.

Alden: That's very good. Certainly you have a very good litigation and appellate background, which I personally feel having been at the FTC is extremely important. Before turning to specifics, there's a big picture question. I noticed you recently gave a speech discussing the relevance of Adam Smith's Theory of Moral Sentiments to the FTC's responsibilities. For those who don't know, Adam Smith viewed himself as a moral philosopher, and actually people have heard of the wealth of nations, but The Theory of Moral Sentiments is a very important work. Commissioner, what takeaway do you get from this very philosophical tome that you might like to share with our audience?

Commissioner Holyoak: Thank you. I really love digging into The Theory of Moral Sentiments for that particular speech. My speech includes a few of his observations, but let me touch on just two that I think are really interesting. The first being that in the Theory of Moral Sentiments, Adam Smith talks a lot about how people form their opinions about different things, about people, subjects, other issues, and how that process is very iterative and evolutionary in how they form their opinions. Meaning that there's no hard and fast rules on how we evaluate like a movie or a book.

For example, my favorite movie might seem really silly to others. Right now I'm trying to find a scary movie for my kids to watch at Halloween. Some might find my choices pretty silly. Another good example right now, it's a very timely example, is our different views on our favorite political candidate and how we come to those views. It's a very evolutionary iterative process. All that to say that because of that and because we have these different manners and different methods to come to those views, as Adam Smith pointed, he suggests that government intervention should be very limited to those areas where we do have very broad support and very broad agreement, and those areas being property and contractual rights and the like, similar things.

The second observation, I think, that Smith made that I found very interesting and pointed out was he pointed out that the greatest threat of monopoly comes from the government. In Smith's time, the government was the one giving monopoly privilege to certain corporations, and those corporations with political connections, and so doing would eliminate competition. I think the lesson for us, the FTC, is to be looking out for those government privileges. It's not always going to be, as in Adam Smith's time, a specific monopoly given, but it could be in other forms, through regulation or enforcement or whatever, that we are benefiting certain companies and entrench companies or benefiting companies that are favored politically at the expense of competition.

What I should say-- let me mention one other thing. If others are interested in Smith and some of the Theory of Moral Sentiments, I found the podcast, Russ Roberts' podcast with Dan Klein, really, really interesting and fascinating. I think that would be a good place to start if anyone else is interested in pursuing that.

Alden: That's very helpful, Commissioner. Certainly, the role of governance and petitioning the government for -- There's this Noerr-Pennington doctrine in antitrust, which gives some antitrust protection to parties who were petitioned for anticompetitive actions by the government. That's quite interesting. Now to some nuts and bolts. Now, recently, the FTC finalized its new Hart-Scott-Rodino prenotification rule, which was agreed to by the Justice Department. The final rule represents a dramatic change in the proposal with several specific proposals, chief about them, a labor screen, rejected in the final rule. Can you walk us through the final rule and how the agencies got to where they got?

Commissioner Holyoak: Yes, absolutely. I will say it was quite the journey. We can start with the NPRM. The NPRM looks nothing like the final rule. The NPRM was very problematic and, in my view, would have been an unlawful rulemaking. I should say, and we didn't start this conversation, but I'll throw it out right now that the views that I expressed today are my own. They don't necessarily represent those of the commission or my fellow commissioners. In my view, the NPRM would have been an unlawful rulemaking if we had proceeded that way.

One of my priorities when I joined the commission was to work with the Bureau of Competition to try and see if we could get the final rule in a better place. On that front, I do want to say that Henry Liu, who's the Director at the Bureau of Competition, and everyone at the Bureau of Competition were extraordinary partners in this regard and worked with us on trying to pare back the rule to where it is. I should also mention that I'm really grateful for all my fellow commissioners for coming to the table to work on this and being willing to agree to a lot of my proposals.

As you mentioned, you mentioned labor were some of the issues. My dissent lays out a lot of my thoughts about the NPRM versus the final rule. I laid out some of the three issues that I thought were most concerning that came out, which were labor, as you mentioned, drafts (draft documents), and cutting back the request for prior acquisitions from the 10 to the 5-year status quo.

Let me talk a little bit about labor. The NPRM, what it proposed was to seek information and disclosures about workplace violations, SOC codes, that's the Standard Occupational Classification, and that's how they classify different jobs, and then ERS commuting zones, like looking at -- You might have a particular county with geographic lines, but that doesn't necessarily mean where people are commuting. These commuting zones try and show where people are commuting.

Of course, the ones that the NPRM talked about were over decades old, which is another issue, but getting back to the SOC codes, they've never been used to draw legitimate antitrust markets. It's interesting to have included that in the NPRM, and also the SOC codes they've never been used in any antitrust case by the agencies. Same is true for the commuting zones as well. Then I should also mention on the workplace violations, absolutely zero connection to evaluating whether a merger violated antitrust laws.

To have these three things in the request, in the NPRM, to gather that labor-related information, it would have been very burdensome on filers. Filers don't necessarily collect this information or know this information. They would have had to go out and collect this, but more importantly, it would have been burdensome on staff to take this information. I should say, but even with those burdens, they wouldn't have been very, very helpful. The problem is that information, as I'd mentioned, not used in different cases, not used for legitimate antitrust markets wouldn't have been very helpful for the commission in evaluating whether a merger had anti-competitive risk.

As I set forth in my statement, to me, when we're evaluating whether we should include things, the key should be, is this information actually going to assist the commission in evaluating a merger for anti-competitive risk? That's what we need to be thinking about when we're including information. Though that information clearly was not helpful and would have been burdensome, and so I'm very pleased that we were able to take that out. I will say, like, any compromises, there were some things that are still in the final rule that don’t necessarily represent my preferences, but I'm happy where it landed. I think it's defensible and lawful, and I think it really gets to a better place.

I guess the other thing I would mention is that I think now that it has imposed different requirements on companies and filers that we should be thinking as a commission, now prospectively, like making sure that we're gathering that information about how that rule affects people. We often do retrospectives at the FTC. I think after filing this rule, we should be thinking about - how does this rule work? Let's think about the burden. Let's make sure that now we assess, with this new rule when it comes into effect, what is the burden that we are now imposing on filers? What is the burden that we are now imposing on the staff? Is this information helpful to staff? We should be looking at that from now on and then reassessing whether we should make additional changes to the rules so that we can properly tailor them and assess whatever burdens there are.

Alden: Oh, that's very helpful. I note that until the 2023 guidelines, prior merger guidelines always made it clear that the commission and the justice department only wanted to focus on those mergers and were likely or had a high probability of harming competition. It seems to me related to that is the question about burden. If you have imposed burdens not related to the likelihood of harm to competition, then that is really inconsistent with the idea of a neutral approach, it sounds like.

Commissioner Holyoak: Yes, I agree that, first and foremost, we should be thinking, what are we trying to accomplish here? What does the law say, and what are we trying to accomplish at the FTC when we're trying to gather this information?

Alden: Absolutely. Switching topics a little bit, I know I'm going to have to tread carefully here. It's something in litigation. If I may, are you able to share any of your views on the reasoning in Judge Ada Brown's opinion a couple of months ago on the non-compete rule?

Commissioner Holyoak: Yes, it is in litigation, so I won't discuss the litigation. What I can discuss is my dissent and what I talk about in that, which Ada Brown's opinion actually is very consistent with, which is the idea that the commission lacked authority to pass this rule, to promulgate this rule in the first place. We saw that in the district opinion a few months ago when she talked about it.

I guess before we even get into that, let me just step back and say, I don't think that all non-compete restrictions are beneficial, are pro-competitive. The problem here is that this rulemaking was just the wrong path for this. Rather than spending years and years on a rule that is not going to withstand litigation challenge, we should have been devoting those resources to actually litigating and enforcing other cases. For example, we could have brought a case against investigating and brought a case, if the facts were there, against non-competes that were impacting low-income workers. That would have been really great relief for consumers and would have certainly been a better use of resources than devoting significant resources to a rule that will likely not withstand judicial scrutiny.

I think it's important to think about the opportunity costs that come with every sort of decision that we're making, rulemaking or otherwise, because we don't have unlimited resources. In fact, our budget is under scrutiny right now. This is not the time to be making unforced errors, and certainly like the non-compete rule, which I don't think is going to withstand legal scrutiny here.

Getting to the substance of this, and I think the opinion in the district court lines up with my dissent, is looking at, what is the basis for this rule? The argument that the rule puts out is that it takes Section 5 and Section 6 working together to try and come up with an authority for the Commission to promulgate legislative competition rules. Here, I just think it falls flat. You look at the text and structure of Section 5. What does Section 5 do? Section 5 is setting forth a comprehensive adjudication framework. How do we adjudicate cases? It's a case-by-case basis. Section 5 provides no mechanism whatsoever for enforcing a Section 5 rule.

Then we look at Section 6. Section 6, this small rule buried in the middle of that, and Section 6 is all about our investigatory powers, talking about being able to go out and look at corporations. In the middle of that, saying that we can make rules. What kind of rules? The question is, are they legislative rules? Here, I drew on the scholarship from Professor Merrill, who talked about how historically, when giving legislative rulemaking authority, Congress gave the authority to sanction. Section 6, completely absent, devoid of any discussion of the ability to sanction for these types of rules that it talks about.

Then just talking a little bit more broadly, when the Supreme Court has really given us some guidance recently in terms of Loper in West Virginia, in terms of approaching rulemakings and our authorities. We need to have an extremely good basis for asserting that we have the legal authority that we have. We need to have solid legal authority for whatever we're trying to do. Then I should also mention that in the district court opinion, she talks a bit about the rule being arbitrary and capricious. I think here this is a good lesson for the commission in terms of thinking about our economic evidence. We need to have strong, robust economic evidence to support what we're doing. There, the court question whether that actually existed there as well.

Alden: Right. That's helpful to have. I think getting to first principles is extremely important. I know from my own background that sometimes the general counsel's office has to point that out to enthusiastic litigators. Now, switching back to mergers.

Commissioner Holyoak: Absolutely.

Alden: The FTC and the Justice Department issued new merger guidelines, as mentioned, late in 2023. I wonder, dear, do you have any particular concerns about the new guidelines and a role they should play in merger assessment at the commission? Do you think consideration should be given to mending the new guidelines or rescinding them and rewriting them entirely?

Commissioner Holyoak: It's a great question. No, I do have a lot of concerns about those guidelines. Stepping back for a moment, what are the guidelines supposed to be doing? They're supposed to be helpful for a court who's sitting here looking at a merger and trying to figure out what's important and what it should be thinking about. The new guidelines, what they do is they cite a lot of old case law. The case law is still good case law, but then it stops there. It doesn't talk about like some of the newer cases that might be more helpful to understanding how some of those general principles have been applied.

I think there's a reason for that. There's a reason also that every folks will say, "Well, look, Brown Shoe, National Bank, those are still good law." True, that's right. There's Supreme Court opinions that we cite, all true. It's also important to understand why those are the last of the Supreme Court opinions. Until the '70s, the Expediting Act allowed the parties to go right to the Supreme Court. Then an amendment changed that. Now we don't have more modern Supreme Court guidance as we did for mergers as we do now with the district courts and the appellate court cases that help us here.

From a perspective of, are we being helpful for court in the merger guidelines? Not necessarily. It doesn't really describe some of the newer cases that I think would be more helpful. In general, it's also not very helpful because it strips out some of the economics. It downplays the role of economics. Which I find not very helpful for courts also because the staff, we're continuing to use economics very strongly and requiring a strong economic analysis in our cases. The idea that it's downplaying that seems to be more PR motivated than really being helpful on anything.

As for whether we should revise them, yes, I would strongly consider rescinding or revising them. What they should look like, I don't know. They could probably be updated from the 2010 guidelines. We'd want to look to see; that would certainly be a good starting point. I think we would want to make sure that we include a strong emphasis on good economic analysis and look to helping the courts understand how to approach these mergers beyond just those older cases.

Alden: Excellent. Speaking of economic analysis, that brings us to the Antitrust Consumer Welfare Standard, which has been supported by the Supreme Court since 1979 and endorsed by all federal antitrust enforcers on a bipartisan basis going back to the Reagan administration until the current Biden administration, which the current administration supported consideration of a wide range of factors apart from consumer welfare. What are your thoughts on the continuing vitality of the Consumer Welfare Standard?

Commissioner Holyoak: It's a great question. First and foremost, I should emphasize the Supreme Court precedent states unequivocally that consumer welfare standard is the goal of antitrust. From a practical matter, if the commission wants to win cases, we need to focus on this. We need to present evidence of harm to consumers and harm to competition consistent with that standard. I also think it's important to take a step back for a moment. Why do we have this standard? Where did this come from? I think first the statutes, we go back to the statutes. The statutes talk about promoting competition. So having a standard that talks about promoting competition, obviously is logical coming from that statute.

Also, we should look at historically how this has developed. For decades, antitrust enforcement was all over the place, inconsistent. I think that Justice Stewart's famous quote, "The only consistent thing about antitrust case law is that the government always wins." It tells you where things were. I think look at how the development of antitrust law from that point and what the courts did is they went to the consumer welfare standard, because it was very administrable. It gave the court something to be able to assess, but I also think it also makes sense to be looking at consumers from the perspective of, if we don't look at consumers, what do we look at? What are we going to protect?

The default typically is protecting competitors. We know when we're protecting competitors what happens there. Who gets to pick the winners and losers on the competitors? Often it leads to rent-seeking. This is similar to what we had talked about with Adam Smith and the government, and who gets to pick the winners and losers. That certainly would happen with agencies. If we're not focused on consumers, it could more readily lead to agencies being captured by whatever industry of the day has its ear. I think having enforcers have that lodestar, that north star to consider in terms of what actions they should be taking is critical so that they aren't captured by industry.

Alden: That's excellent. I'm glad you mentioned Adam Smith again, Commissioner, because he said in the Wealth of Nations that the interest of producers is appropriate to the extent that it benefits the consumer. Actually, if you want to look for the founder of the consumer welfare standard, you might want to go back to Adam Smith, I think.

Commissioner Holyoak: Absolutely. I also want to mention with the consumer welfare standard, I think a lot of the times the critics say, "You only care about price. That's all that matters." Certainly price is easily quantified so that is something that should be looked at. I think it's much more than that. It looks at innovation, looks at quality, it looks at all of those things and really is flexible enough to get to other things as well. I think understanding that flexibility is critical, particularly how we see that standard being applied to new evolving industries like digital and online markets. Understanding that that standard can be flexible enough to address those.

Alden: Right. That's great. Keeping on the subject of consumer welfare, it's interesting. The FTC's 2022 policy statement on unfair methods of competition, which has a particularly strong dissent by Commissioner Wilson, if anyone's interested in reading it, rejects a primary focus on any one standard in characterizing particular business conduct as unfair. What are your views? Is it arguably at odds with case law and sound statutory interpretation to take such a broad approach?

Commissioner Holyoak: Great question. I do think Commissioner Wilson, she does a fantastic job. Very thorough in talking about the concerns with the 2022 statement. Some of the things she mentions is that it replaces the rule of reason and consumer welfare standard with these vague theories that ignore precedent, frankly. The risk here is that it really would allow the commission to just condemn whatever it wants. That's a really scary thing for someone in the business world with no certainty there. It's scary for the rule of law in general in being able to have such a flexible standard or such a broad, vague standard to not understanding what the law is there.

There's a few other thing that's interesting about the 2022 statement is that the term unfair in Section 5, when we're talking about unfair acts or practices, it comes with a cost-benefit analysis, but the 2022 statement completely disclaims a cost-benefit analysis for unfair methods of competition. It seems to be at odds with the Unfair Trade Acts or Practices in that section. I guess probably my greatest concern with the 2022 statement is that it does not require any sort of competitive effects analysis. It doesn't require any sort of consideration for pro-competitive benefits or efficiencies of whatever the challenged conduct is. Whatever people think of the 2015 statement, I know there's lots of differing views on that. I think the 2015 statement was at least based on bedrock antitrust principles. I think that's where the 2022 statement just really lacks any sort of tether to the law.

Alden: Interesting. You mentioned unfair or deceptive acts or practices, which I would say is the consumer protection side of Section 5. Now, the FTC has teed up nearly 10 potential rulemakings, not yet two rulemakings, dealing with unfair or deceptive acts or practices. Do you think it would be a sound use of Commission resources to devote substantial resources to such rulemakings instead of, say, greater focus on Internet fraud or other consumer protection enforcement initiatives where there seems to be a really clear harm to consumers?

Commissioner Holyoak: Such an important question. I will say the most important decisions that the Commission makes is how to devote its resources, because we don't have unlimited resources and we want to make sure we're protecting Americans the best we can. We do have certain rulemaking authorities on the CP side, and so I'm not completely against using rulemakings, but I do think that the agency is at its best when it's robustly enforcing the law. With respect to consumer protection, there's plenty to do there. There is just no end to fraud in the world, and there's so much misconduct of fraudsters and scammers, no shortage of that. I do think that the agency is at its best when it is attacking that and really focusing on that.

This will continue in new industries, new fields, and we're seeing this now. Recently, we had a sweep on some of the AI fraud that's happening, and I suspect that that will continue and grow, and I think we need to be focused on that and understanding the new technologies and new industries and making sure we're investigating those and bringing appropriate enforcement. Yes, I think we should be thinking about how we're deploying those resources and using them in smart ways. For example, I talked about the non-compete. Again, I think we don't have authority there, so I do think that those resources could have much better been used in enforcing the law.

On the CP side as well, we have some law-makings that I don't think comply with the authority that has been provided to us. For example, on the health breach notification rule, I think I dissented there, and I think it exceeds the commission's authority there. I just recently dissented on the negative option rulemaking. Again, I think that also exceeds our rulemaking authority there. These broad rulemakings, they come at an expense. They come at an opportunity cost to being able to bring some of the enforcement action. We just need to be mindful that when we're doing that, when we are devoting all these resources to these ultra vires rulemakings rather than enforcement, we are just confusing our role. We are not the legislature, and we should be thinking about that and our use of resources.

Alden: That's certainly right, and I can think of a number of these rulemakings that would seem to expand the activity of the FTC very broadly. They haven't been pursued yet, but pretty daunting. Now, speaking of the authority of the FTC, the Supreme Court held several years ago the FTC does not have the authority to pursue monetary relief for consumers under its injunctive authority, Section 13(b) of the FTC Act. A nine-to-nothing vote, and by the way, my name was on that brief, submitted to the Supreme Court.

Commissioner Holyoak: Fantastic.

Alden: Well, the result was nine-to-nothing. Would you support legislation to give the FTC monetary relief authority? If so, should such legislation limit the types of claims eligible for relief, for example, say, solely claims involving hardcore deception?

Commissioner Holyoak: Yes, and that's a great question. I think there's a strong bipartisan basis for legislation that would authorize the FTC to seek redress, disgorgement for consumers, similar to what the FTC was doing before AMG. From my perspective, with whatever guardrails that Congress thinks is appropriate. I have expressed my concerns about the FTC exceeding its authority in trying to obtain monetary relief before. Just recently, there was a settlement in Lyft. In that case, what the FTC was doing was sending out these letters called a notice of penalty to thousands of companies. The letter would just say, "Be careful on what you're doing, what your business practice is. Here are a bunch of actions that the FTC has taken before, and you might be violating the law."

A very general description of some of these business practices. Then what would happen is the FTC would use that letter as a basis to argue that the company knew that whatever they were doing was in violation of Section 5. They did that because that would allow an ability to get relief that you couldn't otherwise get. Now, in my dissent, what I argued was we're basically trying to circumvent the problem with AMG. What we're doing it's almost like a rulemaking by creating this general rule for folks of, "Hey, you have notice of this. We're going to come after you for monetary relief because of this."

The problem is that it's so broad the letter that it really couldn't provide any sort of real notice and was not similar enough to the business practices that were actually being challenged there. We need to be careful. That's another instance of the FTC trying to go beyond its authority to try and circumvent and this sort of effective rulemaking for these reasons. The better thing is, it so defeats the process because we all agree we want more authority, but now we're showing we're certainly undermining our actions to Congress. We're not making them feel any better about what we're doing when we're exceeding the authority Congress gave us and certainly not giving them any confidence that they should give us more authority.

Alden: Right. It's sort of we're here from the government, and we're here to help you and be careful.

Commissioner Holyoak: The scariest words. Yes.

Alden: Okay. Now the FTC and justice department have different statutory and injunction standards, and the justice department lacks the FTC's ability to pursue administrative remedies in competition cases before an administrative law judge. Now, of course, some have argued this disparity is in tension with a rule of law because it may affect substantive outcomes in merger reviews and possibly, other antitrust suits as well. What do you think about this apparent disparity?

Commissioner Holyoak: It's a great question. I think, like you had mentioned, let's get back to first principles, what's an important feature of our legal system. It's that we have certainty that we have a rule of law and that the parties understand they understand how the law applies. The problem with a system where you have businesses that are not sure how the law is going to really apply to them based on a clearance process. For those not familiar, when a case comes in, there's a process where it might go to the DOJ; it might go to the FTC. For some parties, maybe they know where they might end up, but for others, they're not quite sure.

It certainly seems inconsistent with the rule of law when it's the same law. It's supposed to be the same laws that are being applied. These antitrust laws will be applied in very different means depending on which agency they get in front of. That just seems to me to be inconsistent with the rule of law. Certainly, it can affect the parties. It also just increases the complexity of the executive branch trying to figure this out and spend, I think, unnecessary time on that.

Alden: Right. It's interesting the different injunction standards applying to the same statute. It's sort of an interesting phenomenon we've got here. Yes.

Commissioner Holyoak: I should say, and I'll just mention one other thing is, I don't think in the end it would make really a big difference. I'm fully confident the Commission staff can meet and comply with whatever standard that the Department of Justice is also having to satisfy.

Alden: Right. That's good to know. Commissioner, you've been very enlightening for our audience. Any additional topics you might want to address?

Commissioner Holyoak: One other topic, and I think this comes from my speech that I talked about with Adam Smith and The Theory of Moral Sentiments and the FTC's role in that. In that speech, I described that I think one of our most pressing concerns is a relationship between large tech and individual liberty. I still think that's true today. I think some of the problem is when technology or financial service companies when they use opaque terms and conditions for subjective evaluations of consumer conduct, something that may seem inconsistent in a consumer's reasonable expectations, that raises real concern for me from a consumer protection standpoint.

It's important to recognize that when we deny financial services or de-platforming or something, what we're doing is treating consumers like second-class citizens. This is so concerning to me. Cancel culture, it's rampant. These concerns are real, and we need to be thinking about them. I think it's critical that we understand the role that platforms are playing in this. Specifically in the speech that I talked about in this Adam Smith speech, I talked about the commission using the authority to look at this more closely and to better understand what platforms are doing.

In that regard, when I'm talking about it from a consumer protection standpoint, looking at the terms of service and the terms that consumers are agreeing to and how the enforcement of those terms are impacting consumers. I think this would be a really important study for the Commission to pursue. I'm hoping that is something that we could be looking at in the near future.

Alden: Right.

Commissioner Holyoak: Oh, go ahead. I'm sorry.

Alden: Oh, go ahead.

Commissioner Holyoak: Oh, no, no. It's fine.

Alden: No, I'm just going to say I'm glad you raised that because Section 6(b) can impose burdens, but it's important, as you mentioned, I think, having the opportunity cost and considerations about the degree of the burden. If you want to choose a topic where there may be potentially huge impact and huge effects on consumers or the competitive process in starting Section 6(b), instead of just scattershot a lot of investigations, to have something that really counts a lot.

Commissioner Holyoak: Absolutely. No, I absolutely agree.

Alden: Well, good. Is that it? As Bugs Bunny would have said--

Commissioner Holyoak: I think that's it for today. Well, thank you so much. Thank you for having me, Alden.

Alden: Well thank you. As Bugs Bunny said, show on the older generation. We've learned a lot today, but for now, that's all, folks. Thank you for your time, Commissioner Holyoak, and very best of luck at the commission.

Commissioner Holyoak: Appreciate that. Thank you so much.