When a new product or service appears, some public officials default to helicopter regulation. The instinct to “do something, anything” rarely pays off—just ask helicopter parents and their kids. An overbearing approach drains the finite resources of lawmakers, enforcement agencies, and innovators. The public bears the cost: officials fixate on a single issue instead of more pressing problems, and consumers wait longer for innovations held up by regulatory hurdles.
The White House’s AI Action Plan takes a lighter touch. It directs the Federal Trade Commission (FTC) to prioritize innovation, which has translated into more measured enforcement and fewer regulatory burdens. So far, the FTC and the U.S. Justice Department (DOJ) have resisted calls to recast the agencies as all-purpose AI regulators.
Algorithms Aren’t the Enemy—Overreach Is
In a recent case, the DOJ took a tailored approach that preserved room for innovation in data and technology. In its dispute with RealPage—which uses algorithms to generate recommended pricing—the DOJ reached a measured settlement. It allows the company to continue offering pro-competitive services, rather than imposing a scorched-earth remedy that could have chilled the use of algorithms in a wide range of neutral, benign applications.
As one former DOJ appointee put it, the settlement:
…offers the first substantive signal from federal enforcers about how they intend to approach algorithmic pricing going forward. For the many industries in the economy today that utilize algorithmic pricing, … the settlement itself … does not treat algorithmic pricing as inherently unlawful under U.S. antitrust law.
The agreement reflects a basic economic reality: well-structured data-sharing arrangements can promote innovation, efficiency, and the development of complex products. Businesses can use reasonable agreements to tackle common challenges without undermining competition. Sharing historical, aggregated, or anonymized data—especially through independent third parties—can improve industry standards and streamline supply chains. Done right, these arrangements benefit consumers; benchmarking reports, for example, can sharpen insight into market trends and consumer preferences.
The settlement also stops short of condemning the underlying technology. It includes no finding that algorithmic rent-setting violates the Sherman Act and leaves much of RealPage’s business intact. Courts have likewise resisted the theory that independent use of sophisticated pricing software satisfies the “contract, combination, or conspiracy” required under Section 1. Earlier this year, the 9th U.S. Circuit Court of Appeals reaffirmed that using the same vendor or pricing tool does not establish an agreement or transform parallel conduct into collusion.
Stay in Your Lane (and Let Congress Drive)
New technologies do not require Congress to sweep aside centuries-old legislative frameworks. Congress exists to act as a level-headed lawmaker. As the people’s representatives, legislators have both the authority and the institutional capacity to craft clear, durable rules.
FTC Chairman Andrew Ferguson recently underscored the point: “Congress has to set the rules of the road.” That tracks with the FTC’s design. From the start, it was meant to be a small, nimble regulator. President Woodrow Wilson, who signed the FTC Act into law, described the commission as a body that could provide industry with “the advice, the definite guidance and information” it needed. The mandate was straightforward: learn, measure, and correct.
The FTC largely follows that roadmap today. It has leaned on its convening power to gather expert input on emerging issues. In recent months, the commission has brought together scholars, policy analysts, and technologists to weigh in on artificial intelligence, Section 230, and more. That deliberate, information-gathering approach gives Congress a stronger foundation for legislation than any rush to regulate.
The FTC has also focused its enforcement where it counts: bad actors. Last year, the commission settled with an AI company that made false claims about its products’ capabilities. Chairman Ferguson has signaled that the FTC will continue to police similar conduct—without drifting into the kind of regulatory helicoptering that keeps innovation stuck in the garage.
Other agencies have shown similar restraint. The U.S. Labor Department, for example, recently launched an AI-literacy initiative aimed at easing adoption and helping workers build new skills. A more skeptical agency might have reached for barriers instead. This administration has taken the opposite tack, instructing agencies to stay in their lanes and avoid stifling development.
Technological change always tempts regulators to consolidate power. But durable governance depends on preserving institutional roles, not collapsing them. Congress should set the rules of the road. Agencies like the DOJ and the FTC should keep learning from markets, measuring real-world effects, and acting with precision under existing authority.
That division of labor may lack drama. It also works.
