Biden’s Antitrust Workforce Alerts a Massive Swing at Company Titans

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WASHINGTON – President Biden has assembled the most aggressive cartel team in decades, equipping his administration with three legal crusaders preparing to take on corporate consolidation and market power with efforts that could include blocking mergers and liquidating large corporations.

Mr Biden’s decision last week to appoint Jonathan Kanter to head the Justice Department’s antitrust division is the latest sign of his willingness to join forces with American businesses to foster more competition in the tech industry and across the economy. Mr. Kanter has spent years as a lawyer fighting giants like Facebook and Google on behalf of rival companies.

If the Senate confirms this, he will join Lina Khan, who reorganized the academic debate on antitrust law and now heads the Federal Trade Commission, and Tim Wu, a longtime advocate of the breakup of Facebook and other big companies, who is now the Special assistant from. is the President for Technology and Competition Policy.

The appointments show both renewed antitrust activism by the Democratic Party and the Biden government’s growing concern that the concentration of power in technology, as well as other industries such as pharmaceuticals, agriculture, healthcare, and finance, has harmed consumers and workers and slowed economic growth.

They also underscore that Mr Biden is ready to use the power of his office and not wait for tougher action from Congress, an approach that is both quicker and potentially riskier. That month it issued an order of 72 initiatives designed to increase competition in a variety of industries, strengthen control over mergers, and curb the widespread practice of forcing workers to sign non-compete agreements.

External groups and government ideological allies warn that if Mr Biden really hopes to follow in the footsteps of his antitrust idols, Presidents Theodore Roosevelt and Franklin D. Roosevelt, he must push for sweeping laws to give federal regulators new powers grant, especially in the technology area. The core federal antitrust laws, written more than a century ago, did not provide for the kind of trade that exists today, where large corporations may offer their customers low prices, but at the expense of competition.

The government has tacitly backed the legislation working its way through the House of Representatives, but it has not yet attempted an antitrust push by Congress in the way that Mr Biden did on infrastructure, childcare and other components of his $ 4 trillion economic agenda to advance.

This could prove problematic if judges continue to oppose action by the Department of Justice, the FTC, or other agencies.

Last month, a federal judge threw an FTC lawsuit against Facebook saying the agency had failed to make a convincing argument that the company was a monopoly and instructed it to better justify its claims. Ms. Khan faces her first major review when she re-files that lawsuit, and on Friday the agency asked the court for more time.

Mr Biden’s antitrust experts argue that Facebook, Google, and Amazon have monopoly power and have used their dominant positions in social media, search, and online retail to crush competitors, leaving consumers with fewer options, even if they haven’t leads to higher costs.

Businesses and some economists disagree. Facebook cites TikTok, Snap, and Twitter as examples of competitors, and Amazon argues that it makes only 5 percent of all retail sales in the United States, despite an eMarketer study showing 40 percent of all online retail sales are made on its platform.

The President and his staff have seen his adoption of a “trustbuster” mentality as a critical step in realigning the economy to not only lower prices, but also to encourage more competition and create high-paying jobs.

“I always thought the free market system wasn’t just competition between companies, but guess what: companies should have to compete for workers,” Biden told a CNN audience in Ohio on Wednesday, promoting his executive order. “Guess what – maybe they’ll pay more money.”

White House officials argue that putting stubborn regulators in positions of power can enable them to thrive in antitrust efforts in a way that President Donald J. Trump did, who also made an executive order on competition and talked about technology – and not to dissolve hospital mergers.

“We’re confident,” said Diana Moss, president of the American Antitrust Institute and advocate of stronger competition enforcement. “But when the rubber hits the streets, they have to juggle an aggressive agenda with the reality of the courts, Congress and outside pressure.”

Updated

July 23, 2021 at 5:42 p.m. ET

Some economists are warning that the staff Mr Biden appointed could go beyond efforts to break the focus that is really stifling competition and hurting consumers and getting into industries like restaurants or grocery stores. The entry of national players into local markets has in many cases opened up more opportunities for customers and created more jobs.

“I’m most concerned about rhetoric,” said Chang-Tai Hsieh, an economist at the University of Chicago whose research has shown that some corporate concentration in recent years has led to innovation that drives the economy. “You look at what you see in tech – and tech is different. And they extrapolate from the tech industry to all other industries. “

Corporate America is already fighting Mr. Biden’s efforts. Google, Facebook and Amazon have filled their legal teams with antitrust experts and have hired seasoned government antitrust officials in recent years. Facebook and Amazon have filed for Ms. Khan’s dismissal on antitrust matters related to their businesses. They say Ms. Khan, who worked on a House of Representatives antitrust investigation into digital platforms, comes with prejudice about her companies. Critics of Mr. Kanter, a private antitrust attorney, cite his previous representation for Microsoft and News Corp as a conflict of interest while the Justice Department leads its legal battle against Google.

Mr Biden’s moves reflect the growing influence of a movement to curb corporate power that has spread from progressive scholars and liberal leaders like Massachusetts Senator Elizabeth Warren to some of the most conservative Republicans in Congress.

Thomas Philippon, an economist at New York University, concluded in 2019 that increasing market concentration had damaged the US economy and cost the typical US $ 5,000 a year. Administrative officials repeatedly cite these statistics in support of Mr Biden’s recent order.

Tackling market concentration and promoting competition “can change the lives of millions of people in this country tremendously,” Bharat Ramamurti, associate director of Mr. Biden’s National Economic Council and former employee of Ms. Warren, said in an interview.

Mr. Ramamurti cited potential benefits not only from company dissolution, but also from giving consumers more and cheaper checking account options, selling hearing aids without a prescription, and limiting the company’s restrictions on whether employees can work for a competitor.

The approach is in stark contrast to the views of regulators during the Obama administration when Mr. Biden was vice president.

The number of hospitals that have merged has quadrupled during President Barack Obama’s first term, leaving millions of patients with fewer choices and higher health care prices.

In 2011, regulators cleared Comcast’s merger with NBCUniversal – the merger of a powerful cable and internet company with a media giant – on terms that the company’s own executive vice president, David Cohen, dismissed as not “particularly restrictive.”

Only one in three Democrats at the Federal Communications Commission turned down the deal, and Christine Varney, director of the Justice Department’s antitrust division, said the deal would “bring new and innovative products to market and give consumers more program choice.”

In 2016, Tom Vilsack, Mr Obama’s Secretary of Agriculture who has taken that role back for Mr Biden, downplayed the harms of agricultural mergers.

“I don’t think that just because some of the key players may merge or are considering some other type of arrangement, I don’t think farmers absolutely guarantee that farmers will have less choice in the long run,” Vilsack said in an interview with USA Today.

Mr Biden has directed federal regulators to consider a tougher line against corporate consolidation in hospitals, health insurance, meat processing and technology, which could include reviewing previous mergers that have been approved.

And its antitrust authorities are trying to reverse mergers that were approved during the Obama years. The Federal Trade Commission’s recent lawsuit to liquidate Facebook focuses on the company’s 2012 purchases from Instagram and WhatsApp in 2014. The agency did not block the mergers because it did not see enough evidence of harm to consumers and competition.

These decisions have come back to keep the FTC prosecuted. The federal judge, who dropped his Facebook complaint in June, questioned the U-turn and why the commission had waited so long to try to resolve these deals.

The courts have become more and more conservative in cartel cases and are more firmly convinced that higher prices are the strongest sign of competition violations.

Administration officials acknowledge this challenge and say they are reviewing the antitrust views of potential justice candidates in hopes of moving the courts to a more benevolent view of the government’s efforts to block mergers and dissolve monopolies.