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GOP Federal Trade Commissioner Christine Wilson and Republicans in Congress said Tuesday they were concerned about Democrats changing antitrust laws to accomplish certain social goals and stray from the law's current focus to preserve fair competition.
Liberals — such as Lina Khan, the Democratic chairwoman of the trade commission, and House antitrust panel chairman David Cicilline of Rhode Island — have argued in the past that antitrust law enforcement has been lackluster and overly focused on consumer welfare and the price of goods.
The Democratic majority at the trade commission has consolidated agency power and expanded regulatory authority to challenge anti-competitive behavior more thoroughly in the past few months.
Republicans are worried Democrats are pushing a liberal social agenda that would create uncertainty and lack of objectivity to antitrust enforcement, Wilson said during a House hearing Tuesday regarding antitrust reforms for workers and labor issues.
“What is happening now, I believe, is going further afield and looking not at what happens for completion for labor, but for other social values,” Wilson said. “And I disagree with expanding the scope of antitrust beyond competition, which is the load that it is designed to carry. We are not equipped to evaluate the other factors that are now being shoe-horned into antitrust analysis."
In a letter to the House antitrust panel on Tuesday, Khan said the trade commission has largely neglected monopsony concerns and harm to workers in recent decades. She said she plans for the agency to scrutinize mergers that lessen competition and restraints on worker pay and mobility.
The two agencies that police companies for anti-competitive conduct, the FTC and the Justice Department, will create a new and more expansive version of the vertical merger guidelines. This comes after the Democrat-controlled trade commission revoked the Trump administration's guidelines on such mergers earlier this month.
Many Democrats support the "hipster antitrust" movement, which aims to broaden the current definition of antitrust law to “promote a host of political economic ends — including our interests as workers, producers, entrepreneurs, and citizens,” Khan stated in a famous paper she wrote while she was a student at Yale Law School.
Former President Donald Trump’s top antitrust enforcer at the Justice Department, Makan Delrahim, in 2019 even praised liberal anti-monopoly activists like Khan for making the case that antitrust enforcement isn’t limited to considering only consumer welfare and the price of goods and services.
However, some antitrust scholars say there is no fair approach to evaluate mergers and enforce antitrust law beyond its current focus on competition and consumer welfare.
"We have adjusted our enforcement procedures to actually look at product market and labor market issues, and I don't know what else you do if you want an evidence-based enforcement of the antitrust laws. You try to get the evidence,” said Bruce Kobayashi, a professor of law and economics at George Mason University and former director of the FTC’s Bureau of Economics.
Republicans in Congress are concerned about social issues and noneconomic analysis applied to merger reviews at the trade commission.
“There have been reports about the FTC sending companies questions that are far outside what traditional inquiries are about in regard to merger investigations, like how mergers would affect unionizations, as well as some environmental and social issues,” Republican Rep. Scott Fitzgerald of Wisconsin said during the antitrust hearing Tuesday.
“This is a departure from what you might see as traditional merger investigation questions,” he added.
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Original Author: Nihal Krishan