Key Highlights

• Ferguson said that he is “well and fully done” with Part 3 for conduct cases on both the antitrust and consumer protection sides of the agency’s docket. According to Ferguson, many of these cases involve claims that implicate private rights and are analogous to traditional common law causes of action, therefore exposing them to constitutional challenge under the Supreme Court’s decision in SEC v. Jarkesy. He described conduct cases as “where the teeth of Jarkesy are sharpest.”
• Ferguson recognized that merger enforcement presents a different constitutional calculus, noting that merger challenges have no historical counterpart in the common law. Even so, he said that the FTC would move away from Part 3 for mergers as well in light of evolving constitutional law, concerns about agency self-adjudication, and a goal of harmonizing the FTC’s approach with the Department of Justice (DOJ). When asked directly whether the FTC would stop filing Part 3 merger complaints, however, he answered: “Not while I’m chairman.”
• Ferguson observed that taking merger cases to federal court would resolve a long-running procedural asymmetry: the FTC has historically sought preliminary injunctions while the DOJ seeks permanent ones. In his view, the practical difference is small because courts in both contexts ultimately assess the merits, but adopting a uniform framework would reduce an unnecessary source of divergence between the two federal antitrust enforcers.
• Ferguson also took aim at the structural dynamics of the Part 3 process itself, in which the same agency that authorizes a complaint also serves as the final adjudicator on appeal. He acknowledged that the FTC’s strong track record in its own forum is a logical product of that design, but questioned whether the public can have confidence in a system structured that way. “No man ought to judge his own cause,” Ferguson said.

Constitutional Backdrop

Ferguson placed the policy shift in the context of a broader doctrinal trend, explaining that the courts “are making it very clear that the era of agency adjudication of private rights is over as the private rights doctrine gets expanded.”

Central to his reasoning is the Supreme Court’s 2024 decision in SEC v. Jarkesy, 603 U.S. 109 (2024), which held that the Seventh Amendment entitled a defendant to a jury trial where the SEC sought civil penalties for securities fraud, a claim the Court found closely analogous to common law fraud. While Jarkesy arose in the SEC context, Ferguson reads the decision as supplying the key framework for determining when a case must go to an Article III court rather than an agency tribunal.

He also highlighted the Fifth Circuit’s decision in Intuit, Inc. v. FTC, No. 24-60040 (5th Cir. Mar. 20, 2026), in which the court struck down the FTC’s use of its administrative process to adjudicate deceptive advertising claims, holding that such cases must be brought in Article III courts. Ferguson viewed Intuit as underscoring that the consumer protection side of the FTC’s docket faces as much constitutional vulnerability as the competition side.

Finally, Ferguson pointed to the practical complications arising from Axon Enterprise, Inc. v. FTC, 598 U.S. 175 (2023), under which respondents can mount constitutional challenges to the Part 3 process itself in federal court. That dynamic has put the agency in the position of litigating its enforcement action while simultaneously defending the legitimacy of its chosen forum, a situation Ferguson dismissed as “a really silly way to run a railroad.”

Looking Ahead

Ferguson suggested that this is not a temporary posture, adding that the shift would likely endure given the direction of the case law. As a practical matter, companies facing potential FTC enforcement actions—whether involving antitrust or consumer protection claims—should anticipate litigating in federal district court rather than before an agency tribunal. That shift carries procedural implications: federal court proceedings are governed by the Federal Rules of Civil Procedure, the Federal Rules of Evidence, and presided over by an Article III judge. Moreover, depending on the nature of the claims and remedies at issue, defendants may be entitled to a jury trial. For merging parties, should the FTC ultimately shift entirely to litigating merger challenges in federal court, rather than following the traditional two-track sequence of seeking a preliminary injunction followed by a Part 3 administrative trial, may change the litigation timeline and strategic calculus when contesting an FTC challenge. At a minimum, it will eliminate a long-standing and meaningful procedural disparity by DOJ Antitrust Division and FTC merger investigations.