Newly passed antitrust legislation will enable a harmful, arbitrary approach to competition

Just before the end of last year, two seemingly innocuous antitrust bills — the Merger Filing Fee Modernization Act (MFFM), introduced by Senator Amy Klobuchar (D-MN), and the State Antitrust Enforcement Venue Act (SAEV), introduced by Senator Mike Lee (R-UT) — passed Congress. While largely procedural and bureaucratic, the bills are a minor win designed to stack the deck in favor of antitrust enforcement agencies. What’s in the legislation isn’t nearly as problematic as the agendas of the agencies it’s empowering.

The provisions of the SAEV are limited to legal procedural rules that allow for some consolidation of pre-trial proceedings when the issues being addressed in different cases overlap. These cases would go back to their original districts following pre-trial proceedings.

Federal Trade Commission (FTC) chair Lina Kahn argues that the SAEV will simply put state enforcers on equal footing with federal agencies. While the change may streamline proceedings, it’ll also create a disadvantage for defendants. For companies that may face multiple complaints, the lack of consolidation will create duplicative efforts and increased legal costs. Uncertainty also arises over whether the change will allow prosecutors the ability to venue shop.

The MFFM also makes largely bureaucratic changes. This legislation would update the merger fee structure. Previously the fee structure had a top fee of $280,000 for mergers valued at over $1 billion. The new structure would lower existing fees, but create additional tiers with fees up to $2.25 million for transactions valued over $5 billion. Essentially, mergers under $1 billion will see their fees decrease and mergers over $1 billion will see increased fees. Additionally, the legislation allocates $418 million to the FTC and $252 million to the Department of Justice (DoJ).

The fee structure itself is about as fair as a tiered structure can be. The fees equal about 0.02-0.03% of the largest mergers per category and 0.04-0.06% for the smallest mergers in each category. Overall, the fees are as close to being calculated as a percent of the merger value as can occur in a tiered system.

Together, the bills slightly stack the deck against companies that could face complaints. Merger fees can be substantially higher for some mergers than others, and Klobuchar designed the bill so that the additional funding to federal agencies is used for further complaints. These seemingly small changes create tweaks that support agencies’ adversarial approaches to antitrust.

Under Kahn’s leadership, the FTC has taken a broader approach to antitrust enforcement. This approach includes a more expansive interpretation of Section 5, which would mean that the agency looks at behavioral impacts beyond competition and consumers and considers the impact on a company’s competitors. Given current efforts to target large tech companies, analyzing the competitive impacts on a company’s competitors is akin to government inference against large platforms and in favor of small competitors.

Additionally, the agency has decided to revise its merger guidelines, and the questions asked on its request for information suggest that a company’s size will play an increasing role in determining the competitiveness of its behavior. This focus on size is not new for Kahn. In her article Amazon’s Antitrust Paradox, she claims that the integration of such a large platform is anti-competitive in ways that aren’t captured by looking at inputs and outputs. She argues that the scope of harm needs to be expanded for these types of companies beyond the traditional scope of prices, competition and consumers. This outlook would mark a change in the current enforcement of antitrust laws.

Klobuchar’s bill granting antitrust agencies additional resources can be linked to the history of Kahn’s efforts to expand agency authority and enforcement. The concern isn’t that these resources will be used to enforce existing law, but rather that the resources will be used in efforts to expand existing law to target large companies for their size and success through agency action rather than legislation.

If agencies like the FTC decide to use additional funds to pursue complaints of alleged anticompetitive behavior based primarily on a firm’s size, the impact will be harmful to the competitive process.  The impact of the recently passed legislation will soon be seen through the way agencies choose to use the funding and authority it allocates. Unfortunately, it will likely add additional fuel to the adversarial antitrust fire.

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