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Antitrust Modernization Commission: Dominated by Corporate Interests

The Congressionally-established Antitrust Modernization Commission announced in January 2005 that it would study a number of issues, including whether Congress should repeal criminal penalties under the Robinson-Patman Act. Other issues include whether Congress and regulatory agencies should set industry-specific standards for particular antitrust violations, whether or not "new economy" industries raise new antitrust questions, what role state attorneys general and private parties should play in merger enforcement, and how intellectual property affects competition.

An additional issue that was "deferred for additional development" is whether and how the commission might "undertake a comprehensive empirical examination of the effects of antitrust enforcement on consumers and the economy."

See the AMC's list of Issues Selected for Study.

Background on the commission:

Congress established the Antitrust Modernization Commission (AMC) in 2002, under the "21st Century Department of Justice Appropriations Authorization Act," (Pub. L. No. 107-273, 116 Stat. 1758 (2002).) The law is also known as the Antitrust Modernization Commission Act of 2002.

As defined by the law, the specific duties of the AMC include:
1) to examine whether antitrust laws should be modernized;
2) to solicit views of all parties concerned with the operation of antitrust laws;
3) to evaluate the advisability of proposals and current arrangements with respect to any issues so identified; and
4) to prepare and submit to Congress and the President a related report.

James Sensenbrenner, Jr. (R-WI) sponsor of the law creating the AMC, has suggested that the AMC look at three specific areas: 1) the role of intellectual property law in antitrust law; 2) how antitrust enforcement should change in the global economy; and 3) the role of state attorneys general in enforcing antitrust laws.

One issue the AMC should have taken up is how to restore Section 7 of the Clayton Act, which was amended in 1950 to specifically be an obstacle to merger-induced industry and market concentration in the U.S. economy. The failure of Section 7 of the act (as originally enacted in 1914) to arrest merger-induced trends in economic concentration was precisely the reason the statute was re-written in 1950 by the Celler-Kefauver amendment. The legislative purpose in 1950 -- clearly and explicitly expressed in House and Senate Reports at the time -- was to make merger policy preventative -- to head off trends toward greater concentration early on, "in their incipiency," before concentration became a problem. The emphasis was deliberately put on blocking mergers that "might" substantially lessen competition. Instead, over the past two decades the act has been profoundly re-interpreted as applying only to mergers that will with virtually absolute probability eliminate competition -- precisely the meaning and interpretation that Congress rejected in rewriting Section 7 in 1950.

(For more background, we recommend The Bigness Complex by Walter Adams and James W. Brock.)

The Commission has been soliciting public input on the topics it should study and will continue to take public comments on the specific issues it examines in the future. To learn more, click HERE

Although members of the commission have been appointed by both parties, none represent state attorneys general, consumer advocates, family farmers small business interests or other groups concerned about the failure of antitrust policies -- despite expectations that the commission will tackle the issue of state antitrust authority and private antitrust actions. Instead, the commission is stacked with lawyers and other representatives of companies involved in recent mergers and other antitrust matters.

Substantial concentration in certain industrial sectors over the last twenty years -- including oil, airlines, broadcasting and media, food production/processing/retailing, defense weapons, banking, pharmaceuticals, and gaming -- suggests the importance of this and other questions.

The Commission did solicit public input on the topics it should study and will continue to take public comments on the specific issues it examines in the future. To learn more, click HERE

Although members of the commission have been appointed by both parties, none represent state attorneys general, consumer advocates, family farmers small business interests or other groups concerned about the failure of antitrust policies -- despite expectations that the commission will tackle the issue of state antitrust authority and private antitrust actions. Instead, the commission is stacked with lawyers and other representatives of companies involved in recent mergers and other antitrust matters.

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