The Judiciary Is Skeptical of FTC Power Grabs in Meta/Within Case

The FTC tried to stop a merger between Facebook’s parent company Meta and the virtual reality app developer Within Unlimited. A court recently ruled against the FTC, resoundingly. While that isn’t necessarily the final word, it is the latest in a series of court setbacks for the agency’s ideologically-charged leadership. Alex Reinauer and I have more on this in National Review:

While Meta currently enjoys 78 percent of new augmented-reality (AR) and virtual-reality headset sales, the devices are still far from ubiquitous. Sony and Apple are coming out with VR headsets and apps of their own as soon as this year. They have plenty of capital and software experience to compete with Meta, and some app developers might find their platforms more appealing.

There are other holes in the FTC’s case too. For starters, the virtual-reality dedicated-fitness-app market barely exists. Dominance by Meta, or any other company, is purely hypothetical at the moment, and judges tend not to look kindly on hypotheticals.

The FTC is trying to revive the incipiency doctrine, which takes antitrust action against such hypothetical markets that might be dominated by a big company at some point in the future — a weak enforcement standard for cases that can potentially affect billions of dollars of value for consumers and for investors.

Read the whole thing here. Alex and I previously wrote about the case here.