Bedoya Defends FTC’s ‘Activist’ Antitrust Approach

Small businesses support the Biden administration’s “activist” antitrust enforcement approach at the FTC and DOJ, FTC Commissioner Alvaro Bedoya said Monday at a University of Utah antitrust event. Bedoya addressed claims the FTC’s approach under Chair Lina Khan has been “bad for business.” Bedoya said he has met with small-business leaders in agriculture, pharmaceuticals and consumer goods in red states like West Virginia, Iowa, South Dakota and Utah. “They’re not saying, ‘Please enforce less because it hurts us,’” he said. “They’re saying, ‘What took you so long?’ They’re saying, ‘We don’t have a level playing field. And for us to do our communities right, we need more enforcement.’” They’re in favor of this “radical idea” that the law should be enforced rigorously, said Bedoya. Facts and law dictate when enforcers bring antitrust cases, DOJ Antitrust Division Chief Jonathan Kanter said on a separate panel. Enforcers need to recognize that in tech markets, competition might not come in traditional forms like brick-and-mortar rivals but instead from a disruptive technology or service that “disintermediates” a platform. When a merger substantially lessens competition, DOJ is mandated to take action under Section 7 of the Clayton Act, he said. DOJ has to enforce the law as written, said Deputy Assistant Attorney General-Antitrust Manish Kumar. Whether it’s good or bad for business, DOJ reserves authority under Sherman Act Section 1 for prosecution of the “most egregious” antitrust violations where the conduct is “irredeemable,” he said: “I don’t think any reasonable person can argue that engaging in this type of conduct is somehow good for business. I think it’s quite the opposite.” He and Kanter noted four district courts have sided with the antitrust division in motions to dismiss under this administration. Restraining a company’s monopoly power is never a “bad thing,” said University of Utah economics instructor Hal Singer.