Differences in institutional design, economic expertise and regulatory mandates play a significant role in shaping enforcement outcomes across sector regulators and antitrust authorities, according to former assistant attorney general Gail Slater.
Differences in institutional design, economic expertise and regulatory mandates play a significant role in shaping enforcement outcomes across sector regulators and antitrust authorities, according to former assistant attorney general Gail Slater.Speaking at a conference* in Washington, DC, Slater said a lot of the differences between the US Department of Justice’s Antitrust Division and the Federal Communications Commission are driven by personalities and the administration, but institutional capacity makes a big difference, too.
A central factor is how economic analysis is incorporated into enforcement work, Slater said. Antitrust agencies typically rely on large teams of PhD economists who are closely integrated into investigative units and involved in case analysis. That level of integration allows economic reasoning to directly inform theories of harm, evidentiary approaches and case development.
“The division has hundreds of PhD economists, the FCC has some, but they're not being integrated into investigative teams. They're not doing the day-to-day analysis in the same way that division economists are. And I think a lot even just also on the relationship that the regulator has with the industry versus what the antitrust enforcers are doing,” Slater said.
Institutional mandates further distinguish the two approaches. Antitrust enforcers apply competition laws across the entire economy, rather than focusing on a single sector, she said. Companies are not subject to continuous oversight, and enforcement tends to occur in specific cases where concerns arise.
Sector regulators, on the other hand, oversee particular industries on an ongoing basis. That sustained relationship with regulated entities creates a different dynamic, influencing both how issues are approached and how regulatory tools are used, Slater said.
She explained that while the DOJ’s and the FCC’s standards overlap, they are divergent: one is the antitrust consumer welfare standard and the other is the public interest standard.
“Those dynamics and those standards can really impact outcomes,” Slater said. They shape how standards are applied and, in turn, influence the types of remedies that may emerge from regulatory or enforcement action.
*American Bar Association Antitrust Spring Meeting 2026. Washington, DC. March 25-27, 2026.
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