On March 16, Senator Elizabeth Warren and Representative Mondaire Jones introduced the Prohibiting Anticompetitive Mergers Act in the Senate and the House. The bill provides the Federal Trade Commission (FTC) and Department of Justice (DOJ) with the authority to reject what they refer to as the most “anticompetitive” mergers without requiring a court order, aligning the agencies with their international counterparts in Europe that already retain the power to block mergers without external assistance.
Specifically, the Prohibiting Anticompetitive Mergers Act authorizes the FTC and DOJ to reject any deals (1) valued over $5 billion, (2) resulting in market shares of more than 33% for sellers or 25% for employers, or (3) resulting in highly concentrated markets under the 1992 agency guidelines. The bill would apply retroactively, requiring the FTC and DOJ to “review every prohibited merger consummated on or after January 1, 2000 …” that “resulted in a post-acquisition market share of greater than 50% of any relevant market.” This would require a complete overhaul of the agencies’ current merger review processes.
By seeking to promote a “whole-of-government” approach, it involves state agencies and attorneys general in the enforcement process. On the federal level, it requires enforcement by the FTC and DOJ, but on the state level, it allows state attorneys general to scrutinize the deals further by enabling them to file lawsuits to block and break up harmful mergers.
Although the bill is backed by a coalition of Democrats in both chambers, it lacks not only Republican support, but also the support of the Senate and House antitrust panel chairs — Senator Amy Klobuchar (D-MN) and Representative David Cicilline (D-RI) — who are advancing their own antitrust measure in the Senate.
Senator Klobuchar and Representative Cicilline introduced and co-sponsored the American Innovation and Choice Online Act bill last fall. The bill seeks to regulate and rein in big tech platforms by prohibiting big tech from favoring its own products and services over its competitors. The bill generated bipartisan support during its committee vote and recently received DOJ’s support. Peter Hyun, acting assistant attorney general for legislative affairs, praised the bill in his letter to the Senate Judiciary Committee, saying: “If enacted, we believe that this legislation has the potential to have a positive effect on dynamism in digital markets going forward.”
Both antitrust bills come at a time when merger filings are at a record high, with a 70% increase in recent years, and some feel a handful of large corporations dominate their respective industries as key players. The bills’ proponents claim that anticompetitive tendencies have resulted in higher costs, and with inflation at a record high, the bill timely seeks to promote competition.
Over the years, despite efforts by several members of Congress to pass antitrust reform legislation by introducing various bills, none have passed both chambers. But given the recent traction and support generated, the American Innovation and Choice Online Act may get Congress across the finish line.