On July 9, President Joe Biden issued an executive order on Promoting Competition in the American Economy. According to the fact sheet that accompanied the order, in over 75% of U.S. industries concentration is higher than 20 years ago. Markups have tripled. Advertised wages have decreased by as much as 17%. Higher prices and lower wages cost the median American household $5,000 per year. The rate of new business formation has fallen almost 50% since the 1970s. Productivity growth has slowed. Business innovation has declined. Income wealth and racial inequality has widened. To remedy the situation, the executive order proposes a raft of initiatives at more than a dozen agencies to foster more competition across the economy. We focus here on the order’s recommendations to the Antitrust Division of the Department of Justice and the Federal Trade Commission in particular because the FTC has had a Biden-selected chair for a considerable time. The new head of the Antitrust Division, Jonathan Kanter, just arrived this November.
The president asks the DOJ and the FTC to reconsider the scope of certain of their guidelines, including the Horizontal Merger Guidelines, the Vertical Merger Guidelines and the Antitrust Guidance for Human Resource Professionals of October 2016. The president also recommended rules relating to the use of non-competes and other clauses that may limit worker mobility, data collection and surveillance that may harm competition, restrictions by manufacturers that prevent farmers from repairing their own equipment, agreements to delay market entry in the pharmaceutical industry by generic and biosimilar suppliers, unfair competition in the Internet marketplace, unfair occupational licensing restrictions and exclusionary practices in real estate brokerage.