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‘Political Policy Ends’

Massie, Correa Share Bipartisan Concern over DOJ Antitrust Proposals

DOJ’s effort to update U.S. antitrust policies with the FTC could have the opposite intended effect and undermine competition, party leaders on the House Antitrust Subcommittee said Tuesday.

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Chairman Thomas Massie, R-Ky., and ranking member Lou Correa, D-Calif., spoke critically of DOJ’s potential updates to merger guidelines (see 2309180059) and the Hart-Scott-Rodino premerger notification process (see 2309280078) during an oversight hearing with DOJ Antitrust Division Chief Jonathan Kanter. Massie and Correa replaced Reps. Ken Buck, R-Colo., and David Cicilline, D-R.I., as party leaders on the subcommittee, which previously led House Judiciary Committee passage of six antitrust bills.

The revised guidelines “fly in the face of established antitrust precedent” and the consumer welfare standard, said Massie. The draft document signals an intent to use antitrust enforcement as “another tool of administrative fiat” to circumvent Congress and “bully” companies into following “aggressive and political policy ends,” he said.

Correa cited “significant” objections to the HSR proposal from a “wide variety of businesses,” including CTA and the Motion Picture Association. USTelecom, NetChoice and Computer & Communications Industry Association also objected to the proposed changes. Correa said he applauds the division’s work, but he urged Kanter to be careful not to “unintentionally harm competition.”

It’s DOJ’s job to enforce U.S. antitrust law in U.S. courts and the proposed changes will help enforcers achieve that end, said Kanter. He and Buck agreed during the hearing that the consumer welfare standard isn’t clearly defined in any statute. If you ask five different lawyers to define the standard, you’ll get six different answers, so there’s effectively no consensus standard, said Kanter. It’s a complex concept where enforcers must account for much more than consumer price, he said.

House Judiciary Committee ranking member Jerry Nadler, D-N.Y., applauded the division for trying to “reinvigorate” U.S. antitrust policies. The draft merger guidelines, written after 18 months of public outreach, reflect modern market realities, said Nadler.

Correa accused the Biden administration of failing to advocate for U.S. interests in EU policies that target dominant U.S. companies. He noted the EU’s designation of 22 core platforms as “gatekeepers” includes 21 American companies and TikTok. He asked why DOJ didn’t interject support of American interests during the drafting process.

Kanter told Correa it’s DOJ’s job to enforce U.S. law and the division coordinates with foreign partners when it needs to better understand how foreign policies might impact domestic enforcement. DOJ sent an “observer” to the EU after the gatekeeper rules were written to assess their ramifications for American policies. Correa criticized DOJ’s decision to “observe” and not “opine” on the process.

Rep. Pramila Jayapal, D-Wash., credited DOJ’s efforts to “revitalize” antitrust enforcement and said she’s disappointed bipartisan legislative efforts to update antitrust laws have stalled. She asked Kanter why it’s his preference to litigate cases to a decision rather than seek a settlement with alleged offenders. DOJ will agree to remedies when they are “sufficient to solve the competitive problem,” said Kanter: What DOJ won’t do is put the risk of a “failed remedy” on the “shoulders of the American public.”

Rep. Matt Gaetz, R-Fla., said Kanter is “doing a good job.” For example, he credited the division for pursuing antitrust enforcement action against Google. He encouraged the department to continue those efforts, saying American consumers should be concerned about Google’s vertical integration of search and ad brokering. The free flow of information is protected by the constitution, and monopolies controlling those avenues threaten the “marketplace of ideas,” said Kanter.