Sen. Klobuchar Looks to Tighten Clayton Act Triggers

Legislation would take Clayton beyond "substantially lessen" competition trigger
Author:
Publish date:
Updated on

Possible presidential candidate Sen. Amy Klobuchar (D-Minn.) is reviving a legislative effort to revise antitrust law to raise the bar for merger approvals, pointing to the $10 trillion in merger activity in the U.S. since 2008 and lowering of that bar via court decisions.

Klobuchar is the ranking member of the Antitrust Subcommittee.

Sen. Amy Klobuchar

Sen. Amy Klobuchar

The senator is reintroducing two bills whose co-sponsors include Sens. Ed Markey (D-Mass.), Richard Blumenthal (D-Conn.), Dick Durbin (D-Ill.) and another presidential hopeful, Corey Booker (D-N.J.).

The Consolidation Prevention and Competition Promotion Act of 2019 would, among many other things, include revising the Clayton Act to eliminate the trigger that a merger must "substantially" lesson competition to "clarify that the Clayton Act prohibits mergers that, as a result of consolidation, may materially lower quality, reduce choice, reduce innovation, exclude competitors, increase entry barriers, or increase price.

The Merger Enforcement Improvement Act would, likewise among many other things, require merged parties to submit to the Federal Trade Commission or Justice, whichever vetted the deal, data that would allow them to assess the impact of the merger, including pricing of service, the cost-saving benefits claimed in the merger, and the effectiveness of any divestitures.

DOJ antitrust chief Makan Delrahim has signaled he would be interested in vetting the impact of past merger approvals to help decide if antitrust enforcement needs to be updated. For one thing, he is a bigger fan of divestitures than behavioral conditions. The data dump required in the Competition Promotion Act would make that easier.

It is unclear whether the bills will move in this Congress, either, given that the Senate remains in the hands of Republicans generally not looking to make it harder for companies to merge.

But Klobuchar suggests the changes are in the interests of both sides. “Antitrust enforcement affects more than just price and output—it’s part of our everyday lives, from the price of groceries at the market to the cost of prescription drugs,” she said.

“Tackling concentrations of power is a linchpin to a healthy economy. These aren’t partisan issues, they’re consumer issues, and these bills will protect consumers by modernizing antitrust enforcement and promoting competition.”

Related