1. Introduction

On July 9, 2021, President Biden signed Executive Order 14036, "Promoting Competition in the American Economy" 1 (the "EO"). The sweeping competition EO, coupled with six competition bills 2 advanced by a bipartisan vote of the House Judiciary Committee in June, signals a sustained focus on competition policy from both the White House and Congress, and that focus is set to only intensify over the next year in the lead up to the midterms.

In announcing the EO, President Biden made clear that "bringing fair competition back to the economy" is a central tenant of his plan for the Nation's long-term economic recovery. 3 It represents a fundamental shift in federal competition policy, countering what reformers view as consolidation-friendly jurisprudence and under-enforcement of antitrust laws.

This EO serves primarily as an agenda-setting document to enliven the "whole-of-government" to use its full authority to improve economic competitiveness and innovation to the benefit of consumers, workers, and small businesses, and our country's long-term economic growth. It provides directives to key executive branch agencies to review and strengthen prior policy guidance, and to encourage agencies to promulgate rules to increase competition, with the EO specifically targeting aspects of the health care, transportation, agriculture, internet service, technology, and banking and consumer finance industries. And it serves as a green light to enforcement agencies to fully and aggressively enforce the existing antitrust laws.

Of note, President Biden provided a key role for his White House to lead the "whole-of-government approach" by establishing a White House Competition Council, chaired by the White House Director of National Economic Council ("NEC"). In addition to the NEC Director, Brian Deese, the NEC has key personnel who are charged with implementing the White House "whole-of-government" approach, including Tim Wu, a Columbia Law Professor and author of the "The Curse of Bigness," 4 and Bharat Ramamurti, a long-time policy advisor to Senator Elizabeth Warren.

President Biden issued the EO before naming a head of the Department of Justice ("DOJ") Antitrust Division, but just today the press is reporting that President Biden plans to nominate Jonathan Kanter to the position. 5 Kanter has recently represented companies pushing for aggressive antitrust enforcement against some of the largest technology companies. Together with Lina Khan, who was sworn in as Chair of the Federal Trade Commission ("FTC") on June 15, and is situated to be a leading voice in the Biden Administration on competition issues, these appointments signal an aggressive approach to antitrust enforcement and reform.

The alert analyzes the "whole-of-government" approach to competition outlined by the White House in the EO and offers a high-level analysis of each policy area addressed in the EO.

2. Whole-of-Government Approach

In addition to setting out industry- and transaction-specific policies, the EO attempts to increase coordination of competition policy across agencies in what it calls a "whole-of-government" approach. The EO appears designed to avoid piecemeal enforcement, reduce agency capture, and make facilitation of competition a baseline component of the policy process, such that the federal government can, in the view of the EO's proponents, respond effectively to well-coordinated industry lobbying and litigation. Moreover, the EO reflects the views of scholars-turned-Biden-appointees like Tim Wu, a technology and competition special assistant at the White House and one of the key architects of the EO, and Lina Khan, the FTC Chair, that consolidation is not only an industry-specific issue, nor does it cause only industry-specific harm. The EO sets forth a systemic approach to promoting competition, instead of focusing solely on consumer welfare. Notably, this approach is at odds with legislation introduced by Senators Mike Lee (R-UT) and Chuck Grassley (R-IA) and supported by many Republicans that would consolidate antitrust enforcement and expertise in the DOJ Antitrust Division.

The EO promotes a "whole-of-government" approach by:

  • Stipulating that industry-specific statutes should be read together as part of "broader policies" to support competition, and industry-specific statutes should be understood to provide "additional protections" above the baselines set by the "first line of defense" of the Sherman Act, Clayton Act, and FTC Act. Sec 2(a), (c).
  • Instructing agencies to "influence the conditions of competition" through rulemaking and procurement decisions, including by "rescinding regulations that create unnecessary barriers to entry." Sec. 2(f), (g).
  • Encouraging interagency enforcement cooperation in a manner that significantly increases the influence of the DOJ Antitrust Division and FTC, and the influence of the traditional "antitrust laws" over the interpretation and enforcement of industry-specific statutes, at other agencies.
  • Establishing the White House Competition Council, tasked with implementation of the EO. Chaired by the Director of the National Economic Council (currently Brian Deese), the Council includes key domestic Cabinet Secretaries and requires the Chair to invite the relevant independent agencies to participate in the Council, including the FTC, Federal Communications Commission ("FCC"), and Consumer Financial Protection Bureau ("CFPB"). Sec. 4.
  • Directing the Office of Information and Regulatory Affairs ("OIRA") at the Office of Management and Budget ("OMB") to incorporate pro-competition policies into its centralized review of major regulations, and encouraging OIRA to add consideration of effects on competition in regulatory impact analysis. Sec. 5(u).
  • Invoking Supreme Court precedent discussing how promoting competition is "conducive to the preservation of our democratic political and social institutions" implicitly tying this effort to a broader theme of existential threats to democracy that currently motivates Democratic policies in other areas such as campaign finance and voting rights. Sec. 2(b) (quoting N. Pac. Ry. Co. v. United States, 356 U.S. 1, 4 (1958)).

The DOJ, the FTC, and the FCC appear well coordinated on advancing the instant whole-of-government approach. Indeed, the same afternoon that President Biden signed the EO, the Acting Assistant Attorney General for the DOJ Antitrust Division, Richard Powers, issued a memorandum on the formation of a task force to determine, within 30 days, how the Division can assist other agencies in antitrust enforcement. Richard Powers and Lina Khan also issued a statement 6 announcing a joint review of whether current merger guidelines are "overly permissive," and both Khan and current Acting FCC Chair Rosenworcel accompanied President Biden at the EO signing.

Footnotes

1 Exec. Order No. 14036, Promoting Competition in the American Economy, 86 Fed. Reg. 36,987 (July 9, 2021), https://www.federalregister.gov/documents/2021/07/14/2021-15069/promoting-competition-in-the-american-economy.

2 Cecilia Kang, Lawmakers, Taking Aim at Big Tech, Push Sweeping Overhaul of Antitrust, N.Y. Times (updated June 29, 2021), https://www.nytimes.com/2021/06/11/technology/big-tech-antitrust-bills.html? action=click&module=RelatedLinks&pgtype=Article.

3 Remarks by President Biden at Signing of An Executive Order Promoting Competition in the American Economy, The White House, July 9, 2021, https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/07/09/remarks-by-president-biden-at-signing-of-an-executive-order-promoting-competition-in-the-american-economy/

4 Tim Wu, Curse of Bigness: Antitrust in the New Gilded Age (Columbia Global Reports, November 13, 2018).

5 Justin Sink & David McLaughlin, Biden Names Google Foe Jonathan Kanter as DOJ Antitrust Chief, Bloomberg News (July 20, 2021), https://www.bloomberg.com/news/articles/2021-07-20/biden-to-name-google-foe-jonathan-kanter-as-doj-antitrust-chief.

6 Press Release, FTC, Statement of FTC Chair Lina Khan and Antitrust Division Acting Assistant Attorney General Richard A. Powers on Competition Executive Order's Call to Consider Revisions to Merger Guidelines (July 9, 2021), https://www.ftc.gov/news-events/press-releases/2021/07/statement-ftc-chair-lina-khan-antitrust-division-acting-assistant.

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