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Articles by Daniel Gilman
ICLE’s Amicus Brief Cited in Inside Radio’s Nielsen–Cumulus Supreme Court Coverage
Inside Radio cited an amicus brief filed by ICLE in an article on Nielsen’s request for Supreme Court review of its dispute with Cumulus Media. The piece covers the petition’s placement on the Court’s conference calendar and the case’s implications for bundled discounts. Read the full article here.
ICLE Amicus Brief Cited in Inside Radio on Nielsen–Cumulus Antitrust Case
Inside Radio cited an amicus brief filed by ICLE on behalf of antitrust law and economics scholars in an article on Nielsen’s request for Supreme Court review of its dispute with Cumulus Media. The piece examines the case’s implications for bundled discounts and discusses the scholars’ argument that the appeals court’s ruling leaves judges supervising prices without a clear economic standard. Read the full article here.
ICLE Cited in Norton Rose Fulbright Article on Foreign Subsidy Disclosure
Norton Rose Fulbright cited ICLE in an article on foreign subsidy scrutiny in US and EU merger review. The piece examines efforts to revise the FTC’s premerger notification requirements and cites ICLE’s comments on the statutory requirements to disclose foreign subsidies. Read the full piece here.
The New (Mexico) Math: Multiply the Violations and Never Mind the Harm
The big news in the competition-plus space—where competition policy meets broader policy concerns—isn’t an antitrust matter at all. It’s New Mexico’s announcement of its “Historic $25 Billion Penalty Against Facebook” (Meta Platforms). Here’s coverage from The New York Times, The Washington Post, The Wall Street Journal, and, for a bit of local flavor, the Albuquerque Journal. That’s a big number for most human folks, if not for the large language models among us, but I have a few questions.
Amicus Brief of Law & Economics Scholars to U.S. Supreme Court in Nielsen v Cumulus
Amicus Brief INTEREST OF AMICI CURIAE[1] Amici are scholars of antitrust law and economics at leading universities and research institutions across the United States. Their names, titles, and academic affiliations are listed in the Appendix. All possess relevant expertise and experience in antitrust law and economics. Amici share an interest in promoting the public interest through a body of antitrust law that remains grounded in sensible rules informed by sound economic analysis.
Antitrust at the Agencies: Pour One Out for Southern Glazer’s
The Federal Trade Commission (FTC) has settled a wine-and-spirits case, and its press release reads like a victory toast. The two commissioners who approved the deal write as if they’d rather send the bottle back. Consumers might want to check the tab. The settlement in Southern Glazer’s Wine and Spirits landed just after I’d put my last “little” 3,500-word agency comment to bed on Friday, Oct. 2.
Fraud, Platforms, and the Art of Getting Ahead of Yourself
The Federal Trade Commission (FTC) wants to stop impersonation scams. Fair enough. But calling a new regulatory venture an “update” doesn’t make it one, and spotting a real problem doesn’t tell you which rules—if any—will solve it. A little more homework would help. On Sept. 24, the FTC announced an advance notice of proposed rulemaking (ANPRM)—an early step toward a possible rule change—which appeared in the Federal Register on Oct. 1.
Dan Gilman Quoted in CEI Comments on FTC Personalized Pricing Guidance
The Competitive Enterprise Institute quoted ICLE Senior Scholar Daniel J. Gilman in comments on the FTC’s proposed enforcement policy statement regarding personalized pricing. The comments examine the agency’s authority to require disclosures and how personalized pricing affects consumers and competition. Read the full comments here. This guidance provides more questions than answers.
ICLE Calls for Stronger FTC Research Capacity and Clearer Limits on Enforcement
PORTLAND, Ore. (Sept. 29, 2026) — Congress should strengthen the Federal Trade Commission’s (FTC) research capacity and work to remove government barriers to competition while limiting the administrative discretion that can turn uncertain legal theories into costly investigations, settlements, and rules, the International Center for Law & Economics (ICLE) said in comments filed with the U.S. House Committee on Energy and Commerce.
ICLE Comments on the FTC’s Personalized Pricing Proposed Enforcement Policy Statement
Regulatory Comments I. Introduction and Summary of Recommendations The International Center for Law & Economics (ICLE) is a nonprofit, nonpartisan research center based in Portland, Oregon. In comments to the Federal Trade Commission (FTC) in 2014,[1] 2018–19,[2] and 2022,[3] and to the Canadian Competition Bureau in 2025[4] and 2026,[5] we have explained why price differences that expand output and lower prices for price-sensitive consumers should not be deemed presumptively harmful.
ICLE Amicus to U.S. Supreme Court in Apple v Epic Games
Amicus Brief Interest of Amicus Curiae[1] The International Center for Law & Economics (ICLE) is a nonprofit research organization that applies economic analysis to legal questions, with particular expertise in competition, intellectual property, and digital markets. ICLE has participated as amicus in earlier stages of this litigation, including the original appeal, the ensuing rehearing and certiorari proceedings, and the appeal from the district court’s contempt order.
Checkout Error: A Bad Grocery Plan Meets a Weak Antitrust Case
I’ve criticized plenty of private antitrust cases. This may be the first in which the plaintiffs sued to stop a genuinely bad idea—and I still think they should lose. That is the odd posture of the antitrust challenge to Mayor Zohran Mamdani’s plan for subsidized grocery stores in New York City. On Sept. 9, the National Supermarket Association and two New York supermarkets filed suit in the U.S. District Court for the Southern District of New York.
Fine Print for Every Price: The FTC’s One-Size-Fits-All Guidance
My first post at Truth on the Market—where I called myself a “Refugee from the FTC”—briefly discussed an advance notice of proposed rulemaking (ANPR) published in the Federal Register by the Federal Trade Commission (FTC) under Chair Lina Khan. This one bore the expansive title “Trade Regulation Rule on Commercial Surveillance and Data Security.” I had more to say in a later post.
Self-Preferencing: The Zelig of Competition Policy in Digital Markets
Scholarship (ICLE) Self-preferencing is often described as a ubiquitous feature of digital markets. The emergence of artificial intelligence (AI) services is expected to further intensify attention and concerns regarding the strategies that large online platforms may adopt to grant preferential treatment to their own products and services.
The FTC’s AI Accuracy Statement Needs a Fact Check
A policy statement about accuracy should, at minimum, be precise. The Federal Trade Commission’s (FTC) Proposed Policy Statement Concerning the Suppression of Accuracy in Artificial Intelligence Systems (AI Policy Statement) struggles with that assignment. The International Center for Law & Economics (ICLE) submitted comments in response to the FTC’s request for input, and this post is, in part, a digest of those comments.
The FTC’s AI Accuracy Statement Needs a Fact Check
A policy statement about accuracy should, at minimum, be precise. The Federal Trade Commission’s (FTC) Proposed Policy Statement Concerning the Suppression of Accuracy in Artificial Intelligence Systems (AI Policy Statement) struggles with that assignment. The International Center for Law & Economics (ICLE) submitted comments in response to the FTC’s request for input, and this post is, in part, a digest of those comments.
ICLE Comments to the FTC on AI Suppression
Regulatory Comments Introduction We thank the Federal Trade Commission (“FTC” or “Commission”) for the opportunity to comment on its proposed Policy Statement Concerning the Suppression of Accuracy in Artificial Intelligence Systems (“AI Policy Statement” or “Statement”).
Dan Gilman Discusses FCC Quorum Rules and Commissioner Removal
Communications Daily quoted Daniel Gilman, ICLE Senior Scholar, in a piece examining how quorum requirements could complicate any White House effort to remove the FCC’s sole Democratic commissioner. Read the full piece here. Dan Gilman, a senior scholar of competition at the International Center for Law & Economics, told us that the administration’s March 2025 firings of FTC Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya was seemingly not necessary.
ICLE Amicus to the Supreme Court in NHK Spring v. Seagate Technology
Amicus Brief QUESTION PRESENTED Whether the mere domestic negotiation of parts of contracts for foreign transactions between foreign companies performed in their entirety outside the United States is sufficient to bring all ensuing commerce from those negotiations within the Sherman Act when the alleged price-fixing injuries occurred outside the United States and the preceding negotiations had no intervening “effect * * * on trade or commerce which is not trade or commerce with foreign...
Onyeka Aralu - Concurrences
International Center for Law & Economics - ICLE (Portland) Competition Policy Fellow Onyeka Aralu is a competition policy fellow at International Center for Law & Economics, based in Portland office. His research focuses on antitrust enforcement, competition policy, and the economics of innovation, with particular attention to digital markets, platform regulation, and the institutional design of competition regimes.
Daniel Gilman Quoted in MLex on FTC’s Section 5 Authority Over AI Marketing
MLex quoted Daniel Gilman, ICLE Senior Scholar, in a piece examining the FTC’s potential use of Section 5 authority to regulate AI marketing claims.
Much Ado About Removal: The Supreme Court, the FTC, and the End of Independent-ish Agencies
For roughly 90 years, Humphrey’s Executor had been the constitutional law equivalent of a load-bearing antique: an awkward, if still functioning, architectural kludge, much admired in certain circles, but increasingly hard to rationalize. Earlier this week, finally, the U.S. Supreme Court replaced it. In Trump v. Slaughter, the Court overruled that 1935 opinion.
AICOA Rises from the Grave, Still Looking for a Theory of Harm
AICOA is back from the dead, and this time it has learned a few new tricks—mostly how to lower liability thresholds, raise defense burdens, and keep treating “Big Tech” as if capitalization were a theory of harm. The American Innovation and Choice Online Act has failed twice before. Its latest incarnation is not so much a fresh start as a sequel nobody ordered. Sen. Chuck Grassley (R-Iowa) and Sen. Amy Klobuchar (D-Minn.) “introduced” AICOA last week. Co-sponsors include Sens.
The FTC’s Robinson-Patman Hangover
There is no special virtue in seeing a bad case through to the bitter end. At some point, persistence looks less like principle and more like a sunk cost with a docket number. Last week, I wrote about the Federal Trade Commission’s (FTC’s) appeal in FTC v. Meta Platforms. The appeal seems to me a bad idea. I quarreled with several points raised by the commission in its opening brief.
The FTC’s Robinson-Patman Hangover
There is no special virtue in seeing a bad case through to the bitter end. At some point, persistence looks less like principle and more like a sunk cost with a docket number. Last week, I wrote about the Federal Trade Commission’s (FTC’s) appeal in FTC v. Meta Platforms. The appeal seems to me a bad idea. I quarreled with several points raised by the commission in its opening brief.
The FTC’s Sunk-Cost Social Network
The first rule of holes is supposed to be: stop digging. The sunk-cost fallacy is realized when we keep digging anyway—and then call it resolve. We—people—often have a hard time letting a bad thing go. That’s true even for those who are well acquainted with the sunk-cost fallacy and should know better. I’ve been there. I’ve felt that misguided determination, and I’ve felt the consequences.
ICLE Comments to FTC and DOJ on Premerger Notifications
Regulatory Comments I. Introduction and Legal Baseline The International Center for Law & Economics (ICLE) is a nonprofit research center based in Portland, Oregon, that applies economic analysis to legal and regulatory policy.
Antitrust at the Agencies: National Nanny Hangover Edition
The Federal Trade Commission’s (FTC) rulemaking machinery is humming again. Is it being tuned for optimal performance—or revved for another trip into the ditch? Most of the current action has to do with consumer protection. That’s par for the course, really.
ICLE Comments on DOJ/FTC Guidance on Business Collaborations
Regulatory Comments I. Introduction The International Center for Law & Economics (ICLE) submits these comments in response to the U.S. Department of Justice Antitrust Division (DOJ) and Federal Trade Commission (FTC) Joint Public Inquiry for Consideration of Guidance on Collaborations Among Competitors (Docket No. ATR-2026-0001).[1] Both agencies have acknowledged that new guidelines are needed. These comments therefore focus on what those guidelines should contain.
ICLE Comments to FTC on Online Food-Delivery Service Fees
Regulatory Comments I. Introduction and Background The International Center for Law & Economics (ICLE) is a nonprofit, nonpartisan research center that applies economic analysis to legal and regulatory questions. These comments respond to the Federal Trade Commission’s (FTC) Advance Notice of Proposed Rulemaking (ANPRM) on unfair or deceptive fee practices by online food-delivery platforms, published April 16, 2026.
Competing Against Competition: The COMPETE Act’s Antitrust Overreach
ICLE Issue Brief Executive Summary California Assembly Bill 1776, the COMPETE Act, would expand the state’s Cartwright Act to reach single-firm conduct for the first time in the Act’s 119-year history. It would create state-law liability for monopolization, attempted monopolization, maintenance of monopoly power, and monopsonization, moving California well beyond federal Section 2 doctrine.
The Wrong Track: How the Railway Safety Act Risks Derailing Innovation
ICLE Issue Brief Executive Summary American freight railroads are safer today than at any point in their history. Accident rates, hazardous-material releases, and employee fatalities have all declined over the past two decades, driven largely by private investment and innovation.
ICLE Brief to the Third Circuit in Reading Hospital v Hill-Rom Holdings
Amicus Brief INTEREST OF AMICI CURIAE[1] The International Center for Law & Economics (“ICLE”) is a nonprofit, non-partisan global research and policy center aimed at building the intellectual foundations for sensible, economically grounded policy. ICLE promotes using law and economics methodologies and economic learning to inform policy and has expertise evaluating antitrust law and policy.
Dan Gilman Quoted in Chamber of Progress on California’s BASED Act
Daniel J. Gilman, ICLE Senior Scholar was quoted in a Chamber of Progress article on California’s BASED Act and the risks it poses to competition, consumers, and integrated digital services. Read the full article here. Daniel J. Gilman, International Center for Law & Economics: “SB 1074 would instead impose a de facto ‘guilty-until-proven-innocent’ regime. That approach will generate false positives—many of them—condemning conduct that is procompetitive and pro-consumer.
The COMPETE Act: California’s Hostile Takeover
TL;DR TL;DR Background: California Assembly Bill 1776, known as the COMPETE Act, would amend the state’s Cartwright Act by regulating single-firm conduct. It expands the definition of an illegal trust to include actions by “one or more persons” that monopolize a market and directs courts to reject federal antitrust standards. The bill eliminates the need to prove market-power thresholds and relaxes requirements for establishing predatory pricing.
California’s BASED Act: Flawed Antitrust Economics
TL;DR TL;DR Background: California Senate Bill 1074, known as the BASED Act, seeks to stop large digital platforms from favoring their own products over those of competitors. Sen. Scott Wiener (D-San Francisco) introduced the bill. It applies to platforms with at least 100 million monthly active U.S. users and a market value above $1 trillion, targeting practices such as search ranking, use of third-party data, and limits on data portability.
California Dreamin’ or an Antitrust Nightmare?
California is about to run a live-fire experiment in antitrust—and the working hypothesis appears to be that decades of case law and economic learning were optional. In January, I published a short post—“Rewriting Antitrust, California Style”—that touched on the inner workings (machinations?) of the California Law Review Commission (CLRC). I flagged concerns about the staff’s recommendations on single-firm conduct. I was hardly alone.
California Dreamin’ or an Antitrust Nightmare?
California is about to run a live-fire experiment in antitrust—and the working hypothesis appears to be that decades of case law and economic learning were optional. In January, I published a short post—“Rewriting Antitrust, California Style”—that touched on the inner workings (machinations?) of the California Law Review Commission (CLRC). I flagged concerns about the staff’s recommendations on single-firm conduct. I was hardly alone.
ICLE Comments to the FTC on Unfair or Deceptive Rental Housing Fee Practices
Regulatory Comments I. Introduction and Background The International Center for Law & Economics (ICLE) is a nonprofit, nonpartisan research center that applies economic analysis to legal and regulatory questions.
Speech, Section 5, and Some Curious Scribbling: A First Amendment Story
The line between regulating conduct and regulating speech can be thin—and sometimes, suspiciously convenient. Last week, my International Center for Law & Economics (ICLE) colleagues Ben Sperry and Jeff Westling published a post here at Truth on the Market titled “The FCC’s Sleeping Power over the Press.” It’s not about antitrust, but it’s well worth your time.
Brief of Former Antitrust Enforcers to the 9th Circuit in Epic v Apple
Amicus Brief INTEREST OF AMICI CURIAE[1] Amici curiae are former government officials with significant experience enforcing federal antitrust laws on behalf of the United States Department of Justice and/or the Federal Trade Commission. Amici are leading voices in the antitrust field; they have testified as experts before Congress, taught at top-tier educational institutions, published leading antitrust articles, and been cited in federal antitrust decisions.
Section 5 Soup: The Still-Secret Recipe to the FTC’s PBM Case
The Federal Trade Commission (FTC) just announced a “landmark” settlement with one of the nation’s largest pharmacy benefit managers (PBMs). The problem is that it doesn’t actually end the PBM case—and it raises as many questions as it answers. In its settlement with Express Scripts Inc.
Antitrust at the Agencies: Vacaturs and Vacancies Edition
Gail Slater has left the building. And that’s a shame, I think. On Feb. 12, Slater posted the following on X: It is with great sadness and abiding hope that I leave my role as AAG for Antitrust today. It was indeed the honor of a lifetime to serve in this role. Huge thanks to all who supported me this past year, most especially the men and women of @justiceatr That was a short tenure. The Senate had confirmed her only 11 months earlier. Some reports said she resigned or “stepped down” (here and here).
Antitrust at the Agencies: Vacaturs and Vacancies Edition
Gail Slater has left the building. And that’s a shame, I think. On Feb. 12, Slater posted the following on X: It is with great sadness and abiding hope that I leave my role as AAG for Antitrust today. It was indeed the honor of a lifetime to serve in this role. Huge thanks to all who supported me this past year, most especially the men and women of @justiceatr That was a short tenure. The Senate had confirmed her only 11 months earlier. Some reports said she resigned or “stepped down” (here and here).
Former Antitrust Enforcers Letter to Attorney General Pam Bondi on Merger Review Standards for Netflix-Warner Bros
Regulatory Comments As former federal antitrust enforcers, we have devoted significant portions of our careers to protecting consumers and competition and we continue to support vigorous enforcement. We are writing to encourage the Department to review the pending Netflix-Warner Bros. merger based on proven standards that evaluate deals based on their impact on consumer welfare, rather than the progressive analytic framework fabricated during the prior administration.
ICLE Comments to Competition Bureau Canada on Anti-Competitive Conduct and Agreements
Regulatory Comments Executive Summary The International Center for Law & Economics (ICLE)[1] submits these comments on the Competition Bureau’s draft Anti-Competitive Conduct and Agreements Enforcement Guidelines, which consolidate enforcement approaches following substantial amendments enacted through Bill C-56 (2023) and Bill C-59 (2024).
Antitrust at the Agencies: More Process, Mo’ Money Edition
The White House announced a slate of administrative nominations Jan. 13, including David MacNeil—founder and CEO of WeatherTech—to fill the Federal Trade Commission (FTC) seat vacated by Melissa Holyoak, who left last November to serve as interim U.S. attorney for the District of Utah. MacNeil made his fortune by importing and later manufacturing (here in the United States) aftermarket auto floor mats and accessories.
Antitrust at the Agencies: The Business We Have Chosen Edition
These are interesting times and competition policy—let alone Federal Trade Commission (FTC) style consumer protection—may not top most people’s list of urgent concerns. But as a certain film character put it, this is the business we have chosen. So with that: Happy New Year! A Good Day at the Bureau of Competition The FTC’s Bureau of Competition kicked off 2026 with a win in a medical-device merger case.
ICLE Reply Comments to FCC on Eliminating Barriers to Wireless Deployments
Regulatory Comments I.
The Google Search decision: The merits, fate, and potential impact of the U.S. District Court's decision on the question of liability – Concurrences
Nominee Daniel Gilman, The Google Search decision: The merits, fate, and potential impact of the U.S. District Court’s decision on the question of liability, 1 January 2025, Concurrences N° 1-2025, Art. N° 122583 Click here to read the full article online In August 2024, Judge Amit P. Mehta ruled in United States v. Google that Google illegally maintained monopolies in general search and text advertising through exclusionary contracts, while dismissing claims on search advertising.
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