Amidst the flurry of overreaches — or even abuses — of federal power by the hopelessly corrupt Biden administration, it's easy to lose track of everything it's doing to undermine America: culturally, politically, criminally, and of course economically. Enter the Federal Trade Commission (FTC).
I have been a critic of some corporate mergers and acquisitions. Specifically, I was not a fan of the Microsoft acquisition of Activision, yet I don't believe that all mergers and acquisitions are bad. It seems like the FTC disagrees with me and is setting up a scenario to block all future mergers.
"At times, regulatory action related to antitrust can feel capricious, arbitrary, or unnecessary," as I noted in a prior piece, yet I concluded that the Microsoft-Activision merger was an example of the government doing something good.
With recent news that the FTC is moving forward with thirteen new guidelines to assess mergers and acquisitions, I believe that the current "capricious, arbitrary, unnecessary" system will get even more subjective and open to the interpretation by bureaucrats.
The new proposed guidelines are a dramatic departure from traditional antitrust analysis that assesses the welfare of the consumer.
The FTC's draft guidelines include this description: "Guidelines 1-8 identify several frameworks that the Agencies use to assess the risk that a merger's effect may be substantially to lessen competition or to tend to create a monopoly. Guidelines 9-12 explain issues that often arise when the Agencies apply those frameworks in several common settings.
"Guideline 13 explains how the Agencies consider mergers and acquisitions that raise competitive concerns not addressed by the other Guidelines." If this sounds like a recipe for every merger and acquisition to be flagged as a violation of antitrust law, you would be correct.
The presumption of guilt is palpable, and these vague guidelines will empower unelected bureaucrats at both the FTC and Department of Justice to second guess the decisions of consenting companies to engage in a contract to either merge or for one to acquire the other.
One other big problem with these new guidelines is the person in charge at the FTC, Chair Lina Khan — someone who has made it her mission to singlehandedly undermine American innovation.
In 2017, Khan wrote a legal analysis for the Yale Law Journal titled "Amazon's Antitrust Paradox" where she made the case that the traditional standard of consumer-welfare was not as much of a concern as "the broader set of ills and hazards that a lack of competition breeds." Also, she argued "as Amazon continues both to deepen its existing control over key infrastructure and to reach into new lines of business, its dominance demands the same scrutiny."
Khan called for a revision of antitrust law for "platform markets" to determine how dominant a company is in the internet economy and what forms of power are a threat to competition.
These radical ideas were a departure from traditional antitrust law, and we are seeing that Khan's twisted vision is becoming a reality.
If the antitrust law is going to shift from a focus on consumer welfare to a vague set of guidelines that focus on a bureaucrat's assessment of competitive markets, our nation's economy is cooked.
Our nation abandoned standards from the Progressive Era that embraced the idea that all bigger companies were inherently bad, and, thankfully, President Ronald Reagan led us to a more reasonable standard that assessed consumer harms. That rational analysis considered prices and availability as factors.
The presumption that all big companies acquiring or merging with other companies is bad; the concept is value neutral. Khan's philosophy ignores the economic fact that many mergers are good and make consumers' lives better. I'm not sure that matters to her.
Jared Whitley is a longtime politico who has worked in the U.S. Congress, White House and defense industry. He is an award-winning writer, having won best blogger in the state from the Utah Society of Professional Journalists (2018) and best columnist from Best of the West (2016). He earned his MBA from Hult International Business School in Dubai. Read Jared Whitley's reports — More Here.
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