Supreme Court Kills Humphrey's Executor, Antitrust Experts Say FTC's Days as Dual Enforcer May Be Numbered

The Supreme Court has overturned Humphrey's Executor and explicitly confirmed that the president may remove FTC commissioners at will — and a panel of veteran antitrust enforcers now says the traditional understanding of the agency's structure and autonomy has been permanently altered.

The U.S. Chamber of Commerce reconvened its antitrust expert panel — senior enforcers spanning seven administrations, from both the Justice Department's Antitrust Division and the FTC — to assess what the ruling in Trump v. Slaughter means for antitrust enforcement, the viability of maintaining two federal competition agencies, and the FTC's operational stability. Their verdicts, collected in the Chamber's latest installment of "The Prompt," range from warnings of practical gridlock to blunt predictions that the FTC's competition function will migrate to DOJ.

Gridlock at the transitions

Several experts highlighted how the elimination of the independent commission structure risks heightened partisan volatility and practical paralysis during presidential transitions. One expert focused squarely on the mechanics of the agency:

"To my prior comments, I would add that it is unclear how the FTC will function during changes of administration. If the new President fires existing members, there is no one who can act on new matters. If the new President leaves individuals in place, they may be concerned that the Chair/Commissioners from another party will resign (leaving no one to act) or that the individual won't follow the Administration's general policies. That also leads to the risk of no FTC."

Another expert pointed to the loss of institutional moderation built into the commission model, observing: "The commission structure encouraged compromise. In principle the majority could vote 3-2 on most matters and basically ignore the minority, but the value of a 5-0 vote encouraged the majority to find ways to work with the minority. Without an independent minority, there will be no checks on the majority, and we will see policy swings from one administration to another."

A defender of the FTC's mandate

Not every panelist signed on to the agency's dismantlement. One expert declined to revise anything written in November 2025, "except the tense":

"It is a sad day for American governance that, at the precise time when we should be insulating agencies from political pressure, a theory-over-empiricism Supreme Court majority did precisely the opposite. Under a future president (and perhaps a Senate controlled by the opposition), we may still see a bipartisan FTC exercising independence to benefit consumer welfare. Moreover, the FTC's 'unfair methods of competition' authority, which was specifically designed by Congress to be broader than the DoJ's antitrust jurisdiction, is critically important now when the Supreme Court's reading of antitrust is unquestionably cramped. So while I recognize that there is an argument for moving antitrust jurisdiction to the Division, that strikes me as a misguided idea. Particularly now."

The consensus: two agencies no longer make sense

Despite that defense, a strong consensus emerged among other experts that the rationale for maintaining two federal antitrust agencies has effectively collapsed. One respondent assessed the agency's political vulnerabilities in stark terms:

"The FTC has a target on its back. If there is Republican control in the next Presidential election with both Senate and House, the competition function might move to DOJ."

Another expert pointed to the inefficiencies of the status quo: "At this point, there is no reason to finance two agencies with overlapping enforcement responsibilities. In addition to the periodic friction associated with determining which agency should undertake a particular investigation, the business community must operate in a world where the rules and how they are enforced can vary depending on luck of the draw. Minimum standards of due process deserve better."

A further expert tied the structural question to constitutional and legislative realities: "The practical implications are that it makes even less sense now for the FTC to maintain antitrust authority, since the notion of a point of view that is 'independent' from that of the Administration no longer exists. What's more, constitutional concerns about FTC Part III antitrust proceedings and concerns about divergent DOJ-FTC injunction standards still exist. Also, the problem of an ill-defined Section 5 UMC remains. I suspect (but am not certain) that at some time (when I have no idea) some version of Senator's one agency act will pass and all federal antitrust enforcement will center in DOJ. There would still be a solid argument for having the FTC remain the primary federal consumer protection agency, given its deep expertise."

Merger headaches

Integrating the two agencies' competition functions would pose its own cultural and policy hurdles. One expert reiterated a view expressed last year: "If each administration has the power to remove commissioners and appoint their successors, the distinction between the Antitrust Division and the Commission's competition mission would turn principally on institutional cultures and the personal predilections of the various appointees, and the already-thin justification for multiple agencies with parallel authority would be largely eliminated."

The same expert cautioned that the best way to combine the agencies is not obvious. The Antitrust Division's civil authority sits alongside criminal authority, shaping its policy judgments on collective action by competitors. The FTC's civil antitrust authority sits alongside consumer protection authority, shaping its judgments on competitive actions with consumer consequences beyond competitive effects. "Those non-overlapping activities result in real cultural differences, and sometimes policy differences in the overlapping civil competition enforcement, and real thought needs to be given to how to optimize a combined agency and where in government it would best be located," the expert wrote.

The Gorsuch wildcard

Multiple experts revisited their past predictions to argue that structural changes have fundamentally reshaped constitutional power dynamics. One extended an earlier forecast that once the FTC is held to be just another executive agency, "the 'independence' rationale for having two antitrust agencies will have fallen too," and that as fiscal deficits accumulate, "even relatively small budgets like the FTC's will come under increasing scrutiny and will be hard to defend."

The same expert singled out Justice Gorsuch's concurrence in Trump v. Slaughter as significant: the executive powers Congress impermissibly assigned to the FTC will now be controlled by the president — but so will the substantial legislative and judicial powers Congress also delegated to the agency. "I suspect a bipartisan majority of the Court will agree with Gorsuch that the Constitution requires that those powers be restored to Congress and the courts. The 'headless fourth branch' has been eliminated, but unless Gorsuch is heeded, the result will be an even more powerful executive branch that is already threatening to subsume the other branches in a way that the Founders could not have intended."

For businesses, the practical stakes are immediate: which agency enforces, and under what standards, may soon depend on a single DOJ shop — or on the outcome of the next election.