The FTC’s Amazon Case: Transparency Owed, Answers Overdue

By Paul Lekas, Executive Vice President, Global Public Policy & Government Affairs

After nearly a decade of investigation and litigation involving Amazon, the Federal Trade Commission (FTC) has yet to answer a fundamental question: what relief does it actually seek? Recently, a federal judge ordered the agency to enumerate "each and every remedy and form of relief" it intends to pursue in its monopolization case against Amazon. That a court must extract this basic information from a federal regulator, years into an enormously resource-intensive proceeding, is difficult to fathom - and warrants serious scrutiny.

The FTC opened its Amazon investigation in 2019 and filed suit in 2023. By any reasonable measure, the agency has had ample time to develop a coherent theory of the type(s) of remedy it plans to seek. Its continued refusal to disclose one leads to one of two conclusions, neither one of which reflects well on the agency.

The first is that the FTC has not yet determined what it wants. If so, it is prosecuting one of the most consequential antitrust cases in a generation without a settled view of its own objectives. That raises legitimate and serious questions about the stewardship of public resources committed to this effort over many years.

The second is that the FTC has formed a remedial view but has determined that transparency would be too politically costly. A look at the options under consideration lends some credibility to this latter inference.

Structural relief - potentially including divestiture of Amazon's logistics network - has long featured prominently among some of the more strident advocates in favor of bringing the case in the first place. In practice, however, such relief almost certainly would threaten Amazon's two-day delivery guarantee, which is a service that consumers have come to embrace. The consumer welfare implications, in other words, are real and deserve honest public deliberation before the agency commits to this course.

Conduct remedies raise similar concerns. Restrictions on how Amazon surfaces product listings - an approach already pursued by regulators in Germany - could result in consumers encountering less competitive pricing. And whatever the underlying legal theory, the practical effect on everyday shoppers is not a secondary consideration; it is central to any responsible remedial analysis.

A third option - mandating separation of Amazon's first-party retail operations from its third-party marketplace - carries its own complications. Amazon itself attempted this model in 1999 before launching its integrated marketplace in 2000. The integrated structure prevailed because it served sellers and consumers more effectively. Re-imposing that separation would likely suppress third-party seller visibility and, with it, the opportunities for small businesses - opportunities the FTC ostensibly seeks to protect.

Taken together, the remedies under consideration risk undermining the core attributes consumers value most about Amazon's platform: broad selection, competitive pricing, as well as reliable and fast fulfillment. These are consequential tradeoffs, and the FTC has an obligation to engage with them openly rather than allow them to surface only through litigation.

The Senate's upcoming FTC oversight hearing - the first such hearing in nearly six years - presents a timely opportunity to press for answers. The FTC should be prepared to identify, on the record, the specific relief it seeks and offer a candid assessment of its likely impact on consumers and businesses. After nearly a decade, that level of transparency is not an unreasonable demand - it is what sound and accountable regulatory practice requires.