An antitrust agenda that builds upon bipartisan ideas 

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When it comes to the nation’s competition policy, it’s better to fight fire with … something.

In recent months, antitrust activists have defined the debate with very aggressive proposals that break from the bipartisan consensus of the past 40 years. These ideas, popular in Europe, include: abandoning the venerable consumer welfare standard to encompass amorphous concepts such as “democratic ideals”; calling for structural separation of large companies; and adopting a “guilty until proven innocent” presumption for many common business practices, such as small acquisitions.

Rather than simply oppose these ideas, antitrust traditionalists — people on both sides of the aisle who believe in settled antitrust concepts and have concerns about upending decades of law and practice — should promote their own, alternate agenda. Tim Muris, one of the Federal Trade Commission’s most successful chairmen ever, developed and implemented a “positive antitrust agenda” to show people that established antitrust concepts could address competitive concerns.

Today, a positive agenda would build upon the bipartisan consensus and recognize that the antitrust laws must continue to focus on consumer welfare, rather than diffuse and amorphous social goals, and that enforcement actions must rest upon empirical evidence, rather than only theoretical speculation.

In a recent letter to Capitol Hill, several groups, committed both to free market principles and to vigorous antitrust enforcement, proposed just such an agenda: 

Improve scrutiny of mergers through additional resources and process changes

Antitrust authorities must have the necessary resources to identify, investigate, and — as appropriate — challenge mergers that raise genuine competitive concerns. As the economy has grown over time, enforcement resources have not kept pace. Some additional resources could come from higher filing fees for merger reviews.

Moreover, the antitrust agencies must enhance public transparency and accountability. They should explain in writing the bases for all enforcement decisions and more regularly conduct and publicize retrospective analyses on significant transactions. These actions would provide Congress and the public with a basis for evaluating the ongoing effectiveness of the antitrust laws.

Finally, certain process adjustments would improve the efficiency of merger review. For example, the Standard Merger and Acquisition Reviews Through Equal Rules Act would harmonize processes and review standards used at both DOJ and the FTC.  

Expand antitrust protections to more of the economy

Congress could enhance the role of antitrust in the economy by eliminating provisions of the FTC Act that exempt certain industries, particularly telecommunications common carriers and nonprofit entities. The nonprofit exemption, for instance, prevents the agency from examining the conduct of nonprofit hospitals, even when they raise healthcare costs for consumers. There has long been a bipartisan consensus in favor of ending both exemptions.

Promote private sector efforts regarding data portability and interoperability

Data portability and interoperability benefit consumers by giving them more control over their data and allowing them to move more easily among competitors. In many industries that involve consumer data, including social media platforms, financial services, and even health care, these tools may lower barriers to new entrants. 

For now, Congress should monitor and encourage private sector efforts to expand data portability and interoperability. In response to consumer demand, many companies have already committed to enhancing these tools, and as House Judiciary Committee Ranking Member Rep. Ken Buck (R-Colo.) has explained, legislation may be premature and perhaps even counterproductive to the extent that federal standards prove unwieldy or unattainable across industries. Nevertheless, through its oversight function, Congress should encourage the antitrust agencies to develop guidance on safe harbors that will facilitate the private sector’s work in enhancing data portability and interoperability.

Focus antitrust resources to reduce racial disparities and enhance labor mobility

Antitrust law protects all consumers, regardless of their race. Still, as the FTC’s Acting Chairwoman, Rebecca Slaughter, has stressed, antitrust law may play an additional, positive role in combating racial disparities and enhancing labor mobility. Congress could encourage the antitrust agencies to examine non-compete clauses and occupational licensing requirements that may unduly restrict competition. Both types of limits can, of course, promote competition in certain cases, but they also can limit opportunities for individuals who are trying to climb the economic ladder. For instance, certain laws require hair braiders to obtain an expensive license to service customers, even though the hair braiders use no chemicals that would raise any safety concerns. Both DOJ and the FTC should closely review and challenge these types of restrictions where appropriate.

Increase protection for consumers from fraud

Although not an antitrust issue, Congress should ensure that the FTC has a viable way to recoup money for victims of consumer fraud in federal court.

In AMG Capital Management v. FTC, the Supreme Court is considering whether the FTC Act confers remedial power for the FTC to obtain monetary relief for consumers in federal court, without having to jump through certain internal procedural hoops that can make recovery impractical. Depending on the Court’s decision, Congress should clarify the contours of the FTC Act: Simply put, the FTC should have an expeditious way to obtain monetary relief for victims of fraud that causes actual harm to consumers.

By pursuing this agenda, legislators who recognize the worth of traditional antitrust approaches could improve the nation’s competition policy and show voters that they care about competition in all markets. Antitrust traditionalists don’t want to break the wheel or reinvent the wheel — they just want to push the cart forward.

Asheesh Agarwal is Deputy General Counsel at TechFreedom, a 501(c)(3) non-profit that advocates for free-market principles in the technology sector and is supported with funding from a wide variety of foundations, corporations, and individuals. Agarwal formerly served in the Trump administration and as an assistant director in the FTC’s Office of Policy Planning.

Tags Business law Competition law Consumer protection Federal Trade Commission Ken Buck United States antitrust law

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