Enforcers Roundtable

Like 3,700 or so other folks, I spent a few days last week at a world-class nerdfest—the Spring Meeting of the Antitrust Law Section. You can see my notes from a couple of the half-dozen sessions I attended here and here. You can also see the insights of Matt Stoller, Director of Research at the American Economic Liberties Project and publisher of BIG on Substack, on his experience as a panelist here.

The four days in D.C. again reminded me of the strongly pro-defense orientation of Section members. Many of them spend their days pushing mergers through the Hart-Scott-Rodino Antitrust Improvements Act process. Many others litigate civil and criminal lawsuits charging their clients with price-fixing, abuse of market power, and other violations of antitrust law.

No wonder they believe Robert Bork—the patron saint of trusting in the beneficence of behemoths—hung the antitrust moon.

Nor do I doubt that their numbers have grown with the upsurge in their clients’ market power. More market power means more money to spend on lawyers (and economists) to defend a dominant position and greater reason to spend it on them.

Comments by the enforcers themselves put me in mind of a clarifying scene in Jaws. Riding in the back of a fishing vessel, the local mayor gets his first up-close look at the enormous great white shark plaguing a seaside village. “You’re gonna need a bigger boat.”

Federal Trade Commission Chair Lina Khan ticked off a list of initiatives—including a rule banning noncompetes, an investigation into pharmaceutical benefit managers, and broad revival of the Robinson-Patman Act—that could vastly increase the Bureau of Competition’s workload. Assistant Attorney General Jonathan Kanter offered a slightly less ambitious agenda, citing a jump in the Antitrust Division’s merger challenges, an uptick in trials and conduct investigations, and ongoing focus on labor effects and criminal monopolization cases. Both also stressed the importance of adding expertise and knowledge regarding competitive and market realities in a digital world.

All that will cost a ton of money. While a funding increase in December 2022 will provide some of it, both agencies need still more. AAG Kanter said he currently has 20 percent fewer people today than the AD employed in 1979. The FTC likewise estimates it had 627 fewer “full-time equivalent” employees in 2022 than the 1,746 who worked there in 1979. And just to get back to the GDP equivalent of 1979 funding levels, the Antitrust Division and FTC would need a total appropriation of more than $1 billion in 2023—almost 40 percent (about $365 million) more than they will get.*

So it looks like the antitrust-enforcement agencies will have to either trim their ambitions or implement approaches that will enable them to do more with less. I myself prefer the latter—and will offer thoughts on how they might accomplish it in later posts.