Senator Warren, Rep. Balint, and Lawmakers Urge FTC and DOJ to Finalize Merger Guidelines, Strengthen Antitrust Enforcement to Protect Consumers
In the last quarter century, over 75 percent of American industries have become more concentrated. Without robust competition, large corporations dominate industries to the detriment of consumers, workers, and entrepreneurs of all backgrounds.
FTC and DOJ’s proposed guidelines are responsive to current economic conditions and rooted in statutory text, the congressional intent of the antitrust laws, and binding Supreme Court precedent.
Washington, D.C. - United States Senator Elizabeth Warren (D-Mass.) and Representative Becca Balint (D-Vt.), along with a bicameral group of lawmakers, submitted a public comment to the Federal Trade Commission (FTC) and the Department of Justice (DOJ) in support of the agencies’ proposed merger guidelines. In the letter, the lawmakers endorse the agencies’ reading of antitrust law, praising the guidelines as necessary to prevent harm to workers, consumers, and small businesses. The lawmakers also encourage the agencies to go further to fight consolidation and inequality.
“We write in support of the Federal Trade Commission (FTC) and Department of Justice (DOJ) Antitrust Division’s draft merger guidelines. The proposed guidelines align with the congressional intent of the antitrust laws, are rooted in statute and binding Supreme Court precedent, and are necessary at a time of excessive consolidation and inequality. We urge the FTC and DOJ to move rapidly to finalize these guidelines, and consider additional ways to strengthen antitrust enforcement and protect consumers as your agencies do so,” the lawmakers wrote.
Signers include: Senators Mazie Hirono, Bernie Sanders, and Peter Welch, and Representatives Jamaal Bowman, Cori Bush, André Carson, Greg Casar, Chris Deluzio, Pramila Jayapal, Barbara Lee, Jim McGovern, Joe Neguse, Summer Lee, Katie Porter, Ayanna Pressley, Delia Ramirez, Mary Gay Scanlon, Rashida Tlaib, Jill Tokuda, and Bonnie Watson Coleman.
Congress enacted bold, transformative legislation to address economic concentration during the late nineteenth and twentieth centuries – and this legislation continues to serve as the foundation of modern antitrust law. The Sherman Act of 1890, Clayton Act of 1914, and Celler-Kefauver Antimerger Act of 1950 each reflected legislative agreement that unchecked consolidation threatens democracy, economic vitality, individual liberty, and the well-being of local communities. DOJ and FTC issued the first merger guidelines in 1968 to inform regulated entities of the standards used to review and potentially challenge transactions under antitrust law. While the 1968 guidelines adhered closely to the congressional intent of the laws, subsequent revisions marked a severe and unjustified shift in enforcement policy, resulting in a merger control regime that has facilitated rising concentration and diminished competition.
The new FTC and DOJ merger guidelines represent a return to the statutory text and congressional intent of antitrust laws, outlining a path for robust antitrust enforcement at a time when it is sorely needed. In the last quarter century, over 75 percent of American industries have become more concentrated. Without robust competition, large corporations dominate industries to the detriment of consumers, workers, and entrepreneurs of all backgrounds. Excessive market power costs American families $5,000 per year on average. In concentrated markets, prices increase by at least three times, wages decrease by nearly 20 percent, and workers are likely to be forced into restrictive employment agreements. In their comment letter, the lawmakers specifically applaud the proposed merger guidelines’ focus on serial acquisitions, entrenchment or extension of market dominance, and labor efforts as particularly powerful to prevent harm to workers, consumers, and small businesses. In addition, the lawmakers encourage the agencies to rely on clear – and lower – market share thresholds, reject the use of efficiencies defenses, and abandon the use of structural and behavioral remedies.
“The FTC and DOJ’s proposed merger guidelines are critical to addressing the ever-changing and complex American economy. Federal antitrust laws were intended to promote competition in order to protect democracy, promote economic growth and innovation, secure individual liberty, and safeguard the well-being of workers and communities. The draft guidelines address those still-vital goals. We urge you to finalize the proposed guidelines expeditiously, and make the additional modifications suggested . . . to strengthen them and ensure they are consistent with the letter and intent of antitrust law,” concluded the lawmakers.
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