While 2022 ended with the congressional passage of two 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) — those bills don’t signal the end of legislative antitrust efforts. The newly introduced Tougher Enforcement Against Monopolies Act (TEAM) offers a moderate approach compared to other proposals but still risks falling victim to the myth that “big is bad.”
Brought forth by Sen. Lee, TEAM’s primary action is to eliminate the scattered enforcement of antitrust law and consolidate it under the Department of Justice (DoJ). The original legislation also includes changes to merger filing fees, which have already been adopted through the MFFM.
The bill has a wide reach, ranging from calling for reports to making changes to occupational licensing. It even reaffirms aspects of the Consumer Welfare Standard (CWS), a legal tool that helps measure the anti-competitiveness of a behavior by the consumer impact. TEAM references this standard by establishing a federal office to monitor occupational licensing with the requirement that rules and policies “benefit consumers and do not serve the private interests of providers of goods and services regulated by the board.”
The primary focus of TEAM is to consolidate antitrust enforcement into one agency. Currently, the DoJ, FTC and, to some extent, the Federal Communications Commission have overlapping jurisdiction when it comes to antitrust enforcement. Moving enforcement entirely to one agency would prevent the possibility of different standards of enforcement and, on the surface, would appear to create a fairer antitrust system. However, according to a report from the Government Accountability Office, disagreements about enforcement are rare.
The agencies largely work well together. Switching enforcement wouldn’t circumvent the emergence of changing ideas regarding mergers and acquisitions, as shown by the joint effort to rewrite merger guidelines. Therefore, consolidating enforcement would likely be more procedural than impactful, while still failing to avoid some of the ideological pitfalls of previous legislation.
Where TEAM stumbles is by setting an irrebuttable threshold at which a merger or acquisition would be considered anti-competitive. If enacted, any post-transaction concentration of 66 percent or higher of market share would be considered anticompetitive and illegal.
Despite being more lenient than the 50 percent market share threshold found in the proposed Competition and Antitrust Law Enforcement Reform Act, the presumption of non-competitiveness at a market share of 66 percent is still stringent. In the lawsuit Epic Games brought against Apple for its alleged anticompetitive behavior regarding its app store, Apple asserted the Supreme Court had never found a company to have monopoly power with less than 75 percent of market share.
Additionally, market share alone is not enough to determine anticompetitive behavior. Reliance on the CWS helps to balance the multiple factors that determine competitiveness, with market share only being one of many. Establishing size thresholds ignores the consumer benefits derived from economies of scale.
The legislation also includes an irrebuttable assumption that a merger or acquisition is anti-competitive if “the transaction would combine persons that compete, would compete, or would attempt to compete against each other absent the transaction,” In essence, this provision serves as a ban on horizontal mergers and acquisitions — mergers and acquisitions where the two companies compete in the same industry. Examples include Estée Lauder’s acquisition of Tom Ford, as well as Disney’s acquisition of National Geographic. The latter added increased programming and consumer benefits for viewers, demonstrating that these mergers should not automatically be regarded as harmful.
The piecemeal approach of TEAM means its exact impact is hard to predict. However, the permeation of the belief that big is bad runs the risk of punishing success and arbitrarily establishing thresholds that aren’t closely tied to competition or consumer harm. Ultimately, the purpose of antitrust shouldn’t be to punish competitive companies, but rather to protect the consumer from anti-competitive behavior. Creating broad rules fails to achieve this.
Tirzah Duren is a policy analyst at the American Consumer Institute, a nonprofit educational and research organization. You can follow her work on Twitter @ConsumerPal.