September 21, 2022

DOJ and FTC Leaders Testify on Antitrust Enforcement

In testimony before the Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights, DOJ Assistant Attorney General Jonathan Kanter and FTC Chair Lina M. Khan described challenges in the current enforcement of federal antitrust laws.

Mr. Kanter reported that the DOJ is on pace to litigate more merger trials in 2022 than any previous year. He said that the DOJ pursued antitrust litigation in industries including construction, defense contracting, transportation, poultry, aerospace and healthcare. Mr. Kanter said that the DOJ is working with state attorneys general to pursue antitrust litigation and with FTC to strengthen merger enforcement guidelines.

Mr. Kanter urged the subcommittee to pass proposed legislation to help the DOJ protect consumers from anticompetitive conduct, such as (i) the Merger Filing Fee Modernization Act, (ii) the State Antitrust Enforcement Venue Act, (iii) the Foreign Merger Subsidy Disclosure Act and (iv) the American Innovation and Choice Online Act.

Ms. Khan echoed Mr. Kanter's remarks, emphasizing the need for strong interagency coordination to ensure that FTC's enforcement fully captures the anticompetitive effects from mergers. She touted increased engagement with the public on policymaking, highlighting FTC's requests for comment on topics such as (i) practices that undermine fair competition, (ii) pharmaceutical merger analysis and (iii) the impact of non-compete clauses. Ms. Khan said that FTC is shifting its focus from enforcement actions to the root causes of competitive harm. Unlike looking at one-off violations, she said, the shift in focus could limit the effects of harmful misconduct by tackling the problem at its source.

Ms. Khan urged Congress to take action to ensure that FTC receives the resources necessary to carry out its mission. She said that despite Congress increasing FTC's budget each year, the agency still "lacks sufficient funding." She added that recent decisions in cases challenging FTC's statutory authority have made it increasingly difficult for FTC to operate under its current conditions.

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