Federal Trade Commission Chairman Lina M. Khan testified today before the Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights. FTC Testimony presented to the subcommittee described the agency’s work to ensure strong antitrust enforcement that takes full account of the harm mergers and anti-competitive behavior cause to honest businesses, workers and consumers.
“Strong enforcement of antitrust laws is essential to the growth and strength of our economy, and to our shared prosperity and freedom. The past few decades have clearly illustrated how Americans lose out when markets become more consolidated and less competitive. Prices are rising, wages are falling and our markets are becoming more fragile and less resilient,” President Khan said. “These facts prompt us to reevaluate how we can apply antitrust laws to ensure maximum effectiveness. At the FTC, we do this by reactivating the full set of powers that Congress has granted us and ensuring that we are faithful to the law and the case law. We are also updating our tools to better reflect new market realities.
FTC testimony details how the agency took numerous steps to vigorously enforce the law over the past yearincluding the challenges of major transactions in semiconductors, defense, energy , Health careand digital markets. The testimony notes that many of these cases reflect the broader perspective the FTC takes to ensure that its enforcement takes full account of the anti-competitive effects of mergers, including its focus on non-horizontal and prospective harms as well as on the impact on workers.
In a year full of law enforcement success, testimony highlights a handful of cases, including the FTC’s successful challenges to shut down the U.S. chip supplier The proposed $40 billion acquisition of Nvidia Corp. British chip design supplier Arm Ltd., which represented the largest semiconductor merger ever attempted when it was announced, and The planned acquisition of Aerojet by Lockheed, a defense merger that would have eliminated the nation’s only remaining independent supplier of key missile propulsion inputs and given Lockheed the ability to cut off competitors‘ access to these components critical to our national defense. The testimony also notes the recent FTC lawsuit to block the social media giant The planned acquisition of Meta of independent virtual reality development studio In Unlimited. The complaint argues that the merger prevents future competition between the merging parties, reducing consumer choice, innovation and competition to attract the best employees.
The testimony also describes the steps the Commission has taken to update its enforcement tools in accordance with the set of powers that Congress has provided to the agency. Examples include reinstating its long-standing practice of requiring parties proposing illegal mergers to receive pre-approval and give advance notice for future transactions. The Commission has also begun to include in its orders measures aimed at curbing roll-up strategies.
According to testimony, the Commission and the Department of Justice have begun the process of revising the Merger Guidelines Manual to better reflect modern market realities. The two agencies are also exploring how to revise merger notification forms to obtain additional information that will streamline the merger review process by effectively and efficiently identifying transactions that warrant further investigation.
In its work on anticompetitive practices, the testimony explains how the Commission directs its limited enforcement efforts towards targeting and correcting root causes to avoid a heavy-handed approach. The FTC has successfully amended its complaint against Meta, the company formerly known as Facebook, in a lawsuit that, in addition to other forms of relief, seeks divestment from Instagram and WhatsApp. In January of this year, the federal court denied Facebook’s motion to dismiss the FTC’s case and the trial is ongoing.>
Testimony says the Commission also prioritizes action against business practices that unlawfully restrict consumers’ ability to repair their products, costing them more in the long run. In July 2021, the FTC voted unanimously to issue a statement signaling its intention to strengthen enforcement against illegal redress restrictions that prevent small businesses, workers, consumers, and even government entities from repair their own products. Since the release of the statement, several major tech companies changed their repair policies, and the FTC pursued enforcement actions against several large companies that had imposed restrictive repair policies. The Commission is also closely monitoring the growing use of non-competition clauses across the economy.
Despite these many successes, the testimony explains that the agency also faces headwinds. Significantly, despite a mandate covering a wide swath of the US economy, the FTC continues to lack sufficient funding. He notes that the number of full-time employees at the FTC is about two-thirds of what it was at the start of 1980, while the country’s GDP has increased sixfold during this period, along with the demands of our agency’s limited resources. The agency is committed to working with Congress to ensure it has the resources and tools it needs to protect the American people from mergers and anti-competitive behavior.
The Commission’s vote to approve the testimony was 3-2, Commissioners Wilson and Phillips dissenting and issuing a dissenting statement.