Dear Readers,
Antitrust has been subject to an unusual degree of public attention of late. In the U.S., President Biden has made antitrust enforcement a key pillar of his agenda. New appointees at the Federal level (notably Jonathan Kanter & Lina Khan at the DOJ & FTC, respectively) have pledged to aggressively enforce the antitrust rules, including in areas that have not been a focus for several decades.
The pieces in this Chronicle provide an overview of the Biden administration’s ambitions, its achievements so far, and critiques of aspects of new shifting antitrust policy in the U.S.
Eleanor M. Fox provides historical context by setting out the foundational role the U.S. has had in pioneering the very notion of antitrust law. Throughout the 20th Century, U.S. enforcers and courts developed a set of rules that was harsh on price-fixing, powerful firms’ exclusionary practices, and mergers that would consolidate power. In recent years, however, certain observers have been critical of developments in U.S. antitrust enforcement. As the article notes, there is a perception (held rightly or wrongly) that the U.S. has been less active than needed in key new sectors of the economy, while Europe (and others) heeded a call to action. The piece sets out the characteristics of U.S. law (and in particular the enforcement of Section 2 of the Sherman Act) that may be responsible for this perceived loss of thought leadership, and points out how the new administration may be able to bring about change.
Karen Hoffman Lent & Michael Sheerin outline how the new leadership teams at the DOJ and FTC have been more than willing to heed the president’s call. There is at present a clear ambition to reshape antitrust enforcement practices, and perhaps even the structure of the antitrust laws themselves. Nonetheless, the DOJ and FTC face significant hurdles to doing so. Recent public promises by enforcers will likely test the already taxed resources at the agencies.
Sandeep Vaheesan provides an overview of how the DOJ’s enforcement and advocacy have in practice operated in the first year of the current administration. The DOJ has filed several criminal cases against employers for colluding against workers, challenged a merger that would allegedly harm workers, and deemed certain methods of competition unfair. If the agencies build on the DOJ’s first steps, there is the potential to, as the author puts it, revive an historical antitrust tradition that seeks to protect consumers, workers, suppliers, and competitors from powerful economic actors, based on bright-line rules (as opposed to a “rule of reason”).
Jay Ezrielev & Joseph J. Simons turn to the substance of certain of the laws and guidelines that the new administration is seeking to reshape. Specifically, in January of this year, the FTC and DOJ announced a joint public inquiry aimed at amending the agencies’ merger guidelines, which were last revised in 2010. The article offers a number of recommendations relating to the structure, underlying principles, goals, and overall content of any proposed revised set of Guidelines. Notably, the authors argue that preserving and enhancing dynamic competition should be a core goal of merger policy and that any new Guidelines should reflect this principle.
Steven Cernak & Luis Blanquez reflect on the meta-context for the Biden administration’s ambitions to reform antitrust laws. As the piece notes, unlike previous administrations, the changes proposed by this administration amount (at least in principle) to a fundamental transformation of antitrust enforcement. As noted above, the administration has attempted to begin this process and has made some steps toward achieving its goal. Nonetheless, any reform to the antitrust status quo faces opposition from vested interests and skepticism from a judiciary trained in it. The article ponders the likelihood of whether the administration’s changes are truly the beginning of a permanent alteration to the antitrust landscape.
Finally, Sean P. Sullivan analyzes the new agency appointees’ approach to the key issue of market definition, which is an existential step in almost any antitrust analysis. As the article notes, this is an appropriate target for review but also potentially perilous territory. Even slight missteps in an enforcer’s approach market definition could spell potential disaster for broader objectives. To contribute to a solid foundation for any new policy direction, the article identifies seven common myths of market definition and explains how best to avoid them.
The selection of articles in this Chronicle should be of interest to any practitioner, academic or interested party seeking to understand how a recently changed political environment will influence the direction of antitrust law as it evolves into the 21st Century.
As always, many thanks to our great panel of authors.
Sincerely,
CPI Team
