Whole Foods Delayed Again
Earlier today the U.S. Court of Appeals for the District of Columbia Circuit granted the FTC's request for an emergency stay against Whole Foods and Wild Oats, thwarting the companies' plan to consummate their merger following last Friday's ruling by the district court that rejected the Commission's motion for a preliminary injunction. The stay allows the FTC and Whole Foods to file briefs regarding the Commission's demand to enjoin the merger pending a full review of the district court's decision.
It's worth noting that this "emergency" stay benefits nobody except FTC lawyers trying to salvage the credibility they lost before the district court. The FTC stubbornly maintains that consumers will be irreparably harmed if Whole Foods and Wild Oats join forces for even a single day. Furthermore, the FTC insists that it must be allowed to review the merger in minute detail--for years if necessary--in administrative proceedings controlled entirely by the Commission. All of this to "protect consumers."
The FTC's "consumers," however, are not real people; they are not "acting man." Rather, they are abstractions conjured by lawyers and state-sponsored economists (in this case, Kevin Murphy of the University of Chicago). Antitrust prosecutors claim to represent these non-acting men against imagined offenses by real-life acting men. All of antitrust exists in a parallel universe--actually, an infinite number of parallel universes--where the earthly confines of economics and law do not apply.
The rule of law truly ceased to exist in the United States when prosecutors were given a free hand to preemptively violate the liberty and property of citizens. The FTC, an agency whose very existence violates the Constitution, not only claims the right to stop mergers at will; it demands the abolition of due process. The Fourth Amendment has already been violated, since antitrust law required Whole Foods and Wild Oats to make all of their records open to FTC inspection without warrants or probable cause. And if the D.C. Circuit ultimately grants an injunction, Whole Foods will not be permitted to exercise its right to a jury trial under the Seventh Amendment--an FTC administrative law judge will hear the case, and his decision is subject to final review by the commissioners themselves, the same people who appoint the prosecutors and approved the initial complaint.
An extra-constitutional judicial proceeding that upholds the rights of non-existent people to restrict the liberty of actual people engaged in social cooperation. That's just what the Constitution's framers had in mind, I'm sure.
Comments (1)
I have been a shopper at Wild Oats in West Hartford, CT for many years. Last year Whole Foods opend up a store very close to the Wild Oats store. One of the rare liberties we enjoy in CT is the right to purchase raw milk from a retail establishment. Both stores provided raw milk but Whole Foods was much better at consistancy, freshness, and quality (milk from grassfed local cows). Other issues further advanced my perception of Whole Foods as a superior vendor.
If Whole Foods were to aquire Wild Oats it would be great example of the marketplace and private enterprise advancing real quality.
Published: August 21, 2007 8:49 AM