Recently, Chairman of the Committee on the Judiciary, Jim Jordan (R-OH), wrote a letter to the Federal Trade Commission (FTC) and Department of Justice (DOJ) alleging potential manipulation of data. In the FTC’s press release, the agency states, “The FTC and DOJ together filed 50 merger enforcement actions in fiscal year 2022, representing the highest level of enforcement activity in over 20 years.” A recent study by the American Consumer Institute (ACI) reveals issues with this statement, as well as issues with the agencies’ merger enforcement under the Biden administration.

A Dechert 2023 report on merger enforcement found discrepancies in documents released by antitrust agencies. When FTC Chair Lina Khan sent a letter to Congress, the appendix had different enforcement action totals than the Hart-Scott-Rodino (HSR) Annual Report over the same period. The difference may be the result of inconsistent definitions. Previous HSR reports from the agencies would identify the number of matters “challenged” by regulators, while in 2022, all matters “directly impacted” were identified instead. It is unclear what definition the letter Chair Khan sent to Congress used. However, it is telling that several “merger enforcement actions” listed by regulators in the letter had no official filing in the report.

These differences are somewhat intrinsic to a category as open-ended as “enforcement actions.” Although Dechert has used a consistent definition for their reports, antitrust agencies have not. ACI’s study, likewise, uses a consistent definition when evaluating each agency’s actions. Instead of looking at total “actions,” the ACI study narrows agency output to merger complaints. This helps prevent inflation of the number of abandonment/restructured transactions through changing definitions, as criticized by Dechert.

The results of ACI’s study do not bode well for the FTC’s claims. Not only are their total complaints for 2022 the lowest since 2005, but the outcomes of those complaints have been worse than the prior administration in terms of won litigations, settled outcomes, and number of complaints. While this administration has voiced skepticism of remedial solutions, litigated outcomes continue to go up while settlements go down. Despite this increase in litigated outcomes, court case successes have decreased substantially as novel legal theories are tested and reasonable remedies are denied.

After several years of failing to make headwind on changing the antitrust legal space and essentially bullying merging firms into abandonment, it appears both FTC’s Khan and DOJ’s Jonathan Kanter are resorting to historical revisionism. As Dechert explained, this is done by broadening the definition of “enforcement actions” to inflate numbers, but when it comes to merger complaints, antitrust agencies hit a wall.

Congress should stay vigilant and push back against any efforts to revise the facts on antitrust regulation under the Biden administration. Supporters of “big is bad” will likely latch on to the agencies’ claims about record “enforcement,” so it is up to others to arm themselves with the facts on the matter to counter these claims.

Isaac Schick is with the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, visit www.TheAmericanConsumer.Org or follow us on X @ConsumerPal