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House Judiciary Committee Chairman F. James Sensenbrenner Jr. is preparing legislation that could result in the biggest overhaul to the antitrust laws since enactment of the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The bill, still being written, would create a blue-ribbon commission to study how the U.S. antitrust laws should be reformed, sources said. The group’s report would become the foundation for legislation. The commission would focus on applying the antitrust laws to the new economy, the intersection of antitrust and intellectual property law and international antitrust enforcement. It would also be free to delve into other areas of competition law, including politically hot topics such as agribusiness and energy consolidation. “There are no restrictions,” said one source who was briefed on the legislation. House Judiciary Committee spokesman Jeff Lungren said Sensenbrenner has not decided when to introduce an antitrust bill, but he confirmed that the Wisconsin Republican is studying the issue. “Antitrust was an issue included in the committee’s oversight plan, and it is an important part of our jurisdiction,” he said. Sensenbrenner assumed the House Judiciary leadership in January after Republican caucus rules forced Henry Hyde from Illinois to surrender the committee chairmanship. The former chairman of the House Science Committee has little experience with antitrust laws. The legislation would come while a large faction of lawmakers are voicing disapproval over the rapid pace of business consolidation. The Senate Commerce Committee last year passed an unprecedented resolution opposing UAL Corp.’s acquisition of US Airways Group Inc. Also, Senate Finance Committee Chairman Charles Grassley, R-Iowa, has discussed re-introducing a bill that would give the Department of Agriculture a say in agribusiness mergers. Several House members have also called on the Department of Justice and Department of Transportation to impose a moratorium on all airline mergers, while Sen. Paul Wellstone, D-Minn, is considering re-introducing a bill that would impose an 18-month ban on agribusiness mergers. One lawyer suggested the commission gives Sensenbrenner a way to satisfy lawmakers upset with consolidation in the agriculture, media and transportation industries without having to deal with more drastic options, such as merger moratoriums. Sources said the panel will be modeled after the National Bankruptcy Review Commission, which Congress created in the mid-1990s to recommend changes to the bankruptcy laws. The NBRC held meetings across the country and solicited reams of comments from lawyers, judges and consumer advocates. The group took about two years to organize, hold hearings and issue its recommendations. The review commission’s recommendations are the basis for bankruptcy reform legislation that passed both chambers last year but was vetoed by President Clinton. It also is at the heart of legislation approved last week by the House Judiciary Committee. Under Sensenbrenner’s plan, the White House, House leaders and Senate leaders each would select three to four members to the antitrust commission. The bipartisan panel would consist of experts in the antitrust field. Sensenbrenner appears to be testing the waters for the bill. If not enough support materializes, he could drop the plan altogether. So far, reaction to the proposed legislation is mixed. “The issues that Sensenbrenner has identified are clearly important issues,” said William Baer, a former director of the Federal Trade Commission’s competition bureau who is now a partner in the Washington, D.C., office of law firm Arnold & Porter. “To have a balanced thoughtful group of people advising Congress is certainly sensible.” Baer urged Congress to keep the proposed commission’s focus as narrow as possible, saying that is the best way to ensure it creates workable solutions to any antitrust problems that surface. Yet Baer and other lawyers noted that other commissions have covered much of this territory. The FTC did a study in 1996, shortly after Robert Pitofsky become chairman, that examined the interaction of antitrust laws and high technology. In addition, the International Competition Policy Advisory Committee, a Justice Department-created commission, issued a study last year examining international competition issues. “Why try to re-create the wheel on these things,” one Washington, D.C.-based antitrust lawyer said. “There might be room for legislation, but an awful lot of research and effort went into these other projects.” The lawyer also worried that the commission could spark partisan bickering over antitrust laws. Until now, antitrust enforcement has remained largely apolitical. Copyright (c)2001 TDD, LLC. All rights reserved.

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