By Jeffrey May, J.D.
Proposed "One Agency Act" consolidates antitrust enforcement authority at the Department of Justice.
Calling the two-agency approach to antitrust enforcement inefficient and confusing, Sen. Mike Lee (R., Utah) has introduced the proposed "One Agency Act" to consolidate antitrust enforcement authority at the Department of Justice. The proposal would remove the FTC’s "unfair methods of competition" authority and transfer all FTC antitrust matters, personnel, and resources to the Justice Department. Lee noted that the bill would not change the FTC’s ability to police "unfair and deceptive acts or practices" pursuant to its consumer protection mission under Section 5 of the FTC Act.
"When no one knows who is in charge, bad things happen, and sophisticated players like Facebook, Twitter, and Google—who can afford an army of lawyers, lobbyists, and consultants—can game the system to their own advantage, and thereby avoid accountability for engaging in anticompetitive behavior," Lee said. "It’s clear that our current dual agency antitrust enforcement arrangement isn’t working. The Justice Department is more politically accountable, and its structure is better suited to decisive enforcement."
"The One Agency Act will improve and strengthen antitrust enforcement by eliminating inefficiencies, waste, and delays, and by ensuring a single, consistent voice on antitrust policy that is accountable to the public," added Lee. "Putting all antitrust enforcers under one roof will also make it easier to share expertise across industries and case teams. Antitrust enforcement will no longer hinge one which agency reviews a deal or investigates a target."
Lee cited the FTC's antitrust case against Qualcomm and the differing positions of the two federal antitrust agencies on the case as reasons for consolidating enforcement in one agency. The senator explained that the FTC sued Qualcomm in the final days of the Obama administration, with just two commissioners voting for the complaint, but the Justice Department later sided with Qualcomm on appeal. The Ninth Circuit ruled that the FTC failed to meet its burden of proving that Qualcomm’s business practices caused anticompetitive harm.
In a Wall Street Journal op-ed on November 17, announcing his plan to introduce the measure, Lee said that even the Justice Department and the FTC do not advocate separate enforcers when helping other nations set up their own competition authorities.
SMARTER Act. Lee is also the sponsor of the proposed Standard Merger and Acquisition Reviews Through Equal Rules Act, or SMARTER Act, which would change FTC practice in merger enforcement, but would not take away enforcement authority altogether. The bill (S. 4876), co-sponsored by Sens. Thom Tillis (R., N.C.) and Chuck Grassley (R., Iowa), would require the FTC to follow the same procedures and adhere to the same injunction standard as the Antitrust Division when suing to block a proposed merger. The measure is intended to align the procedures used by the FTC and the Department of Justice Antitrust Division in challenging unconsummated acquisitions and mergers.
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