On July 9, 2021, President Biden signed the Executive Order on Promoting Competition in the American Economy (EO), which states that "excessive market concentration threatens basic economic liberties, democratic accountability, and the welfare of workers, farmers, small businesses, startups, and consumers."1 The EO does not impose any specific new rules, but it gives wide-ranging instructions to many parts of the federal government to promote and increase competition in a number of industries.2 If fully implemented, these directives could materially change the standards that the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) use to decide whether to bring antitrust enforcement actions. The directives could also result in meaningful new regulations affecting many industries, including technology, pharmaceuticals, aviation, and telecommunications.
This alert highlights the EO's provisions that are most relevant to antitrust enforcement:
- Focus on certain markets, including technology, healthcare, and labor:3 The EO states that it is the policy of the Biden administration to "enforce the antitrust laws to combat the excessive concentration of industry … especially as these issues arise in labor markets, agricultural markets, Internet platform industries, healthcare markets (including insurance, hospital, and prescription drug markets), repair markets, and United States markets directly affected by foreign cartel activity." The EO also states that the Biden administration also wants to use the antitrust laws to "meet the challenges posed by new industries and technologies, including the rise of the dominant Internet platforms, especially as they stem from serial mergers, the acquisition of nascent competitors, the aggregation of data, unfair competition in attention markets, the surveillance of users, and the presence of network effects."
- Establishment of a White House Competition Council (WHCC):4 The EO establishes the WHCC within the Executive Office of the President, which includes cabinet secretaries, independent agency heads, and others as members. The WHCC is to "work across agencies to provide a coordinated response to overconcentration, monopolization, and unfair competition in or directly affecting the American economy." However, the EO provides that the WHCC "shall not discuss any current or anticipated enforcement actions," presumably to avoid White House involvement in prosecution decisions and matters that are the responsibility of independent agencies, including the FTC.
- Analyze changes to DOJ/FTC guidelines:5 The Attorney General and FTC Chair are directed to assess certain policies, including the Horizontal and Vertical Merger Guidelines, Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments,6 and the Antitrust Guidance for Human Resource Professionals.7 Consistent with this guidance, shortly after the White House issued the EO, FTC Chair Lina Khan and Acting Assistant Attorney General Richard Powers issued a joint press release stating that the Merger Guidelines "deserve a hard look to determine whether they are overly permissive" and announced that the DOJ/FTC will undertake a joint review of the Merger Guidelines.8
- Encourage FTC rulemaking:9 The FTC is directed to consider statutory rulemaking on non-compete clauses and various "unfair methods of competition," including data collection, third-party "right to repair," "agreements to delay the market entry of generic drugs," and occupational licensing. The FTC recently made changes to its rulemaking practice that gave the FTC Chair more power over the process.
- Evaluate competition in beer, wine, and spirits:10 The Secretary of the Treasury is directed to submit a report to the WHCC "assessing the current market structure and conditions of competition," including (a) "any unlawful trade practices in the beer, wine, and spirits markets," (b) "patterns of consolidation in production, distribution, or retail beer, wine, and spirits markets," and (c) "any unnecessary trade practice regulations of matters such as bottle sizes, permitting, or labeling."
- Encourage new net neutrality rules:11 The FCC is encouraged to consider adopting "net neutrality" rules similar to the ones previously adopted by the FCC in 2015, along with conducting future spectrum auctions to "help avoid excessive concentration of spectrum license holdings." The Republican-led FCC repealed the net neutrality rules in 2017, which was largely upheld by the D.C. Circuit.12 For now, the FCC is split 2-2 between Democratic and Republican nominees; once a new Democratic commissioner is appointed, these initiatives can be expected to proceed.13
- Evaluate competition in aviation:14 The Department of Transportation is directed to establish a working group to "evaluate the effectiveness of existing commercial aviation programs, consumer protections, and rules of the Federal Aviation Administration," including consulting "with the Attorney General regarding … competition in air transportation and the ability of new entrants to gain access" and considering "measures to support airport development and increased capacity and improve airport congestion management, gate access, implementation of airport competition plans … and 'slot' administration."
- Pharmaceuticals and healthcare:15 The HHS Secretary is directed to "continue to promote generic drug and biosimilar competition," including, with the FTC, "identifying and addressing any efforts to impede generic drug and biosimilar competition." The HHS Secretary is further directed to communicate with the Under Secretary of Commerce for Intellectual Property and the Director of the United States Patent and Trademark Office to ensure that "the patent system, while incentivizing innovation, does not also unjustifiably delay generic drug and biosimilar competition beyond that reasonably contemplated by applicable law."
The EO constitutes another step by the Biden administration to increase antitrust enforcement and issue new regulations for key industries. We will continue to monitor U.S. policy and legislative changes affecting antitrust enforcement and provide further updates.
For more information on the EO or any related matter, please contact any member of Wilson Sonsini's antitrust practice.
[1]Executive Order on Promoting Competition in the American Economy, The White House, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/ (“Executive Order”).
[8]Press Release, “Statement of Acting Assistant Attorney General Richard A. Powers of the Antitrust Division and FTC Chair Lina Khan on Competition Executive Order’s Call to Consider Revisions to Merger Guidelines” (July 9, 2021), https://www.justice.gov/opa/pr/statement-acting-assistant-attorney-general-richard-powers-antitrust-division-and-ftc-chair.
[9]Executive Order § 5(g), (h).
[12]Cecilia Kang, “F.C.C. Repeals Net Neutrality Rules,” The New York Times (Dec. 14, 2017), https://www.nytimes.com/2017/12/14/technology/net-neutrality-repeal-vote.html David McCabe, “Court Upholds Net Neutrality Repeal, With Some Caveats,” The New York Times (Oct. 1, 2019), https://www.nytimes.com/2019/10/01/technology/net-neutrality-repeal-broadband.html.
[13]David Shepardson, “Groups urge Biden to nominate FCC commissioner to speed net neutrality reinstatement,” Reuters (June 14, 2021), https://www.reuters.com/technology/groups-urge-biden-nominate-fcc-commissioner-speed-net-neutrality-reinstatement-2021-06-14/.