On April 15, the Obama Administration issued an Executive Order instructing Executive Branch departments and agencies to develop steps to enhance competition in their areas of responsibility and report back to the White House in 60 days. While the Order lauds antitrust enforcement by the FTC and DOJ, the recommended steps could include actions covered by the antitrust laws. Because the recommendations could include changes in regulations or information reporting, business clients should stand ready to examine any effects on their industries.
This Executive Order comes amidst a flurry of opinion pieces in the mainstream media bemoaning what is seen as increased concentration from lax antitrust enforcement and blaming it for reduced investment and anemic economic growth. A piece in the New York Times described the economy as "Robber Baron Recessions" with high corporate profits "reflect[ing] growing monopoly power" and not return on investment. For the New Republic, antitrust regulation, or lack thereof, is "the root of our economic evils." The Economist also lamented persistently high profits and suggested "the scientists of antitrust" could do more to increase competition if not hamstrung by the law's limited scope. Finally, Politico suggested a "reboot for the FTC" because it is currently "failing to address the structural lack of competition that afflicts our economy."
The Executive Order does not find fault with the antitrust enforcement of the FTC or DOJ Antitrust Division; indeed, the Order says the two agencies "have a proven record of detecting and stopping anticompetitive conduct and challenging [anticompetitive] mergers." But, the Order states, "[p]romoting competitive markets and ensuring that consumers and workers have access to the information needed to make informed choices must be a shared priority across the Federal Government."
Therefore, the Order instructs executive departments (and encourages independent agencies) to develop steps in the next 60 days that each department can take to promote competition. Such steps could include "pro-competitive rulemaking, ... providing consumers and workers with information they need to make informed choices, and … eliminating regulations that restrict competition without corresponding benefits..." In the first action under this new initiative, the Administration called for the Federal Communication Commission to "open up set-top cable boxes to competition."
At this early date, it is unclear what steps, if any, the executive branch or independent agencies will recommend and which of those recommendations will be adopted. Clients should pay attention to this process to see if any actions are proposed and approved that could affect their industries. The Schiff Hardin Antitrust and Trade Regulation team will follow the process and the firm stands ready to assist you with your ongoing regulatory needs.