Giving FTC & DOJ tools to block monopolistic mergers through pathbreaking research on the original meaning of the Clayton Act
In April 2022, Farm Action submitted a public comment to the Federal Trade Commission (FTC) and the Department of Justice (DOJ) setting out the legal and factual case for ending a 40-year failed experiment in antitrust law enforcement, which was drafted by Antimonopoly Counsel attorneys Basel Musharbash and Sonia Paauwe and Farm Action Policy Director Sarah Carden. The comment was submitted in response to the joint FTC-DOJ merger enforcement request for information. Antimonopoly Counsel Managing Attorney Basel Musharbash and Associate Attorney Sonia Paauwe were retained by Farm Action to draft
The FTC-DOJ request for information came at the direction of President Biden’s executive order on competition, which was itself guided by Farm Action recommendations. The agencies launched this joint review in early 2022 with the stated goal of strengthening enforcement against illegal mergers.
Farm Action’s comment demonstrated that Congress enacted antitrust laws in order to protect competition, and that the shift in enforcement policy over the past 40 years to prioritize consumer welfare not only contradicted the original intent of the law, but also “facilitated unprecedented concentrations of corporate power in our economy,” thus failing farmers, workers, small businesses, and consumers themselves.
“[W]e urge the Agencies to turn the page,” Farm Action’s comment stated. “Instead of continuing the past forty-years’ ‘experiment of letting giant corporations accumulate more and more power,’ the Agencies should adopt new merger guidelines that apply the antitrust laws as written and intended by Congress.”
Farm Action concluded with several recommendations for reconstructing merger enforcement to accord with the law and congressional intent: 1) to streamline the FTC and DOJ’s enforcement of antitrust law with clear, objective, and straightforward rules; 2) to define markets by their practical and geographical natures; and 3) to prioritize competition above all else by prohibiting unlawful corporate mergers.