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Biden Antitrust Enforcers Propose Unlawful Power Grab to Reshape the Economy in Draft Merger Guidelines

WASHINGTON—Today, NetChoice filed comments to the Federal Trade Commission (FTC) and Department of Justice (DOJ) on their proposed changes to their Merger Guidelines, which explain how the agencies interpret and enforce federal merger law. 

NetChoice’s comments focus on the Clayton Act’s text, which prohibits mergers only when they are reasonably likely to diminish competition so much that the public is injured or monopoly power is created. We explain that the agencies’ Draft Guidelines are not only inconsistent with the text, they are unlawful assertions of authority to reshape the economy as the FTC and DOJ see fit. 

By exceeding their statutory authority over questions of economic and political significance, the agencies will invite judicial backlash. 

“Biden’s antitrust enforcers are rewriting antitrust law to circumvent Congress and substitute their personal progressive beliefs for the policies Congress actually enacted,” said Chris Marchese, NetChoice Director of Litigation. “This unlawful power grab will hurt economic growth, chill innovation and undermine the rule of law.”

Marchese continued: “The FTC and DOJ’s hijacking of merger law to achieve their top-down restructuring of the American economy is a prime target for a judicial slapdown. The agencies’ refusal to follow the law as written and interpreted leaves the impression that their real goal isn’t to win in court; it’s to chill merger activity by intimidating businesses so that cases never even reach the court.” 

Our comments to the FTC and DOJ on their draft merger guidelines makes three key points:

  1. A textualist reading of Section 7 of the Clayton Act reveals that the Act bans only the mergers which are reasonably likely to choke off competition to the point of hurting the “public” through reduced output, higher prices, lower quality products and similar economic harms to consumers. 
  2. A further textualist reading of Section 7 forecloses the agencies’ interpretation of, and enforcement practices under, the statute. Simply, the agencies have exceeded Congress’ delegation of power by claiming for themselves the authority to reshape businesses, markets, industries and even the economy based on their personal beliefs about how competition should work. 
  3. In rewriting antitrust law and conjuring up authority they do not have, the agencies have exceeded Congress’ delegation of enforcement power and—in practicing what their draft guidelines preach—trigger (and fail under) the major questions doctrine of the Constitution. 

You can read NetChoice’s filing to the FTC and DOJ here

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