Trump team may inject populist agenda into antitrust decisions

Since the election, the antitrust community has debated the question of how antitrust enforcement under the Trump administration might differ from that of the past administration.  

Some have predicted a transition to a less-interventionist approach, in line, generally, with the posture of past Republican administrations.

{mosads}But others have pointed to statements and actions by President Trump as evidence that his administration might pursue a different path and incorporate some of the more populist themes he communicated on the campaign trail into his antitrust enforcement.  

Candidate Trump, for instance, stated that Amazon has “a huge antitrust problem” and that he would seek to block AT&T’s acquisition of Time Warner because it would create “too much concentration of power in the hands of too few.”  

Since his election, the president reportedly met with executives of companies contemplating mergers or with mergers under review by the Department of Justice or Federal Trade Commission, including a meeting a few days before his inauguration with the CEOs of Bayer and Monsanto.  

After the meeting, White House Press Secretary Sean Spicer announced a commitment by Bayer, if its proposed acquisition of Monsanto is approved, to add thousands of new jobs and to significantly increase its investment in the United States.

This raises the question of whether job numbers will become a factor the new administration’s DOJ or FTC will consider when it reviews mergers.

A populist antitrust policy that regards large size as necessarily bad, or that promotes policies and interests other than vigorous competition, would represent a significant departure from the policies of prior administrations — both Republican and Democrat. 

For decades, antitrust enforcement has sought to protect the competitive process and promote efficiency and consumer welfare. Invitations to consider other interests, such as the impact of a proposed merger on jobs or the environment, have been ignored.  

Employees of U.S. Airways and American Airlines, for example, publicly urged the Obama administration’s DOJ to approve a proposed airline merger in 2013 because the airlines promised the employees significantly higher wages.  

In spite of these pleas, the DOJ sued to block the merger because of its likely effect on airfares.

Courts also agree that prices, output, and innovation are the only appropriate considerations in antitrust cases. They reject even the most well-intentioned efforts to advance other important interests as defenses for anticompetitive activities.  

In one famous case, the Supreme Court considered a trade association policy that prohibited engineers from discussing their prices when soliciting work.

This was a policy the engineers said was needed to protect public health and safety because engineers seeking to win projects by competing on price might perform dangerously low-quality work.  

The Supreme Court recognized this policy for what it was — a ban on a key element of competition among engineers — and characterized the attempt to prioritize protecting public safety over competition as “nothing less than a frontal assault on the basic policy of the Sherman Act.”  

In another case, the Supreme Court refused to consider the good intentions of major oil companies that stockpiled oil during the Great Depression to increase prices and create jobs in oil production, condemning their conduct as illegal price-fixing. 

But even if courts might be unwilling to consider factors other than the impact that a challenged merger or alleged anticompetitive practice might have on competition, nothing can stop the Trump administration’s antitrust enforcers from considering other policies and interests as they evaluate whether to bring a matter to court.  

It remains to be seen whether they will pursue a cautious but conventional approach, like the DOJ and FTC under previous Republican presidents, or one with more populist goals in mind.  

Maureen Ohlhausen, recently tapped by President Trump to be acting chairwoman of the Federal Trade Commission, might have previewed the new administration’s direction when she expressed at a recent conference concern about “importing other values” into antitrust law.  

Only further appointments, investigations, and lawsuits will reveal whether this clue reflects reality.

David Kully is a partner at the Washington, D.C. office of Holland & Knight LLP, a firm that provides representation in litigation, business, real estate and governmental law. 

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