On December 15, 2023, the Fifth Circuit vacated a Federal Trade Commission order finding a merger illegal. Although Illumina—the party WLF supported on appeal—was victorious, the decision was a disappointment for WLF. WLF’s brief explained that FTC commissioners cannot enjoy for-cause removal protection because the FTC is (1) comprised of three members of the same political party; (2) has at least one non-expert commissioner; and (3) exercises executive power. The brief also argued that the FTC’s procedures violate due process. But the Fifth Circuit disagreed, holding that the FTC’s structure is constitutional and that most of the FTC’s legal analysis was correct.
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