A Survey of President Biden’s Executive Order on Promoting Competition in the American Economy | Hogan Lovells

Unlike judicial precedent or legislative action, President Biden’s Executive Order cannot change the antitrust laws that the administration is entrusted to enforce. However, it has led to increased consideration of competition factors by federal agencies across the government as they carry out their regulatory activities. The Executive Order emphasizes for regulators the issues of competition and concentration in the U.S. economy. While prior administrations have also sought to call attention to competition issues among federal regulators, beyond the activities of the Department of Justice’s Antitrust Division (DOJ) or Federal Trade Commission (FTC), the Biden Executive Order is unique in its breadth and scope. The Executive Order reflects the administration’s intense focus on concentration as a serious risk to the U.S. economy, and an assumption that this issue resonates broadly for Americans and is not just an area of concern for the two U.S. antitrust agencies, business community, and antitrust practitioners. The Executive Order has prompted information-sharing, training, and various other collaborative efforts across agencies that in the past may have had little reason to interact. When all of the main federal agencies convene and exchange perspectives on competition, it has the potential to lead in new directions. To understand these potential new directions and assess the impact across industries, it is important to stay abreast of the various reports and other initiatives that have resulted from the Executive Order. We summarize the key ones below.

The Department of Justice Antitrust Division (DOJ or the Division), the Federal Trade Commission (FTC) and the Biden Administration commemorated the anniversary of the Executive Order and praised the responses of federal agencies during the past year to the various directives enumerated in the order. On 11 July 2022 DOJ touted what it asserted was the agency’s “most productive year of interagency competition policy engagement in recent history,” and pledged to continue “institutionalizing and routinizing its newly expanded interagency partnerships.” Meanwhile, the FTC recognized the one-year mark by promoting its efforts over the past year to work with “agencies around the federal government and tak[e] aggressive steps to bolster competition.” FTC Chair Lina Khan highlighted the agency’s joint, ongoing effort with DOJ to update the federal merger guidelines2 to “accurately reflect modern market realities and equip us to forcefully enforce the law against unlawful deals.”

Below we provide an overview of actions and initiatives taken by U.S. federal agencies over the past year in response to the various mandates outlined in the Executive Order related to increasing competition in the economy.3

Published Reports

The Executive Order directed a number of agencies to submit reports to the White House Competition Council on a range of topics related to the state of competition across various sectors in the economy. To date, the following five reports have been published:

  • Comprehensive Plan for Addressing High Drug Prices: A Report in Response to the Executive Order on Competition in the American Economy—Department of Health and Human Services (HHS), Office of the Assistant Secretary for Planning and Evaluation

  • State of Competition within the Defense Industrial Base—Department of Defense (DOD)

  • The State of Labor Market Competition –Treasury Department

  • Competition in the Market for Beer, Wine, and Spirits—Treasury Department

  • Agricultural Competition: A Plan in Support of Fair and Competitive Markets—U.S. Department of Agriculture (USDA)

Comprehensive Plan for Addressing High Drug Prices: A Report in Response to the Executive Order on Competition in the American Economy

In September 2021, the U.S. Department of Health and Human Services (HHS) published a report intended to “present[] the principles for equitable drug pricing reform through competition, innovation, and transparency; describe[] promising legislative approaches; and summarize[] actions already underway or under consideration across HHS.” The report posits that drug prices have increased significantly in the U.S. because of a number of factors stifling competition, including lack of new market entrants; incentives for list price inflation to increase rebates and fees; price hikes on single-source generics; research and development spending not focused on new treatments and cures; legal abuses including pay-for-delay, patent thickets, product hopping, and exploitation of Risk Evaluation and Mitigation Strategy (REMs) provisions, and “other monopolistic or oligopolistic behavior.”

The report lays out three “guiding principles” for drug pricing reform:

  • Supporting drug price negotiation with manufacturers and stopping unreasonable price increases to ensure access to drugs that can improve health for all Americans;

  • Supporting market changes that strengthen supply chains, promote biosimilars and generics, and increase transparency; and

  • Fostering scientific innovation by supporting public and private research and making sure that market incentives promote discovery of valuable and accessible new treatments, not market gaming.

The report supports “bold legislative action” to reform the American pharmaceutical market and reduce drug prices. This includes legislation that would accomplish the following:

  • Cap out-of-pocket costs and other reductions in cost-sharing for Medicare Part D beneficiaries and incentivize Part D plans to promote drugs that offer the most value at the lowest cost;

  • Authorize HHS to negotiate Medicaid supplemental rebates on behalf of states that voluntarily choose to participate in such a program;

  • Ban spread pricing (under which pharmacy benefit managers (PBMs) receive more for drugs than they pay the pharmacies that dispense them in Medicaid contracts);

  • Allow states to apply the Medicaid Drug Rebate Program requirements to bundled drugs provided as part of outpatient hospital and physician services;

  • Promote the development and availability of lower cost biosimilar and generic drugs;

  • Promote the prompt approval of generic drugs and provide federal support for development of nonprofit generic drug manufacturers to increase availability of generic drugs;

  • Encourage utilization of biosimilars and generics;

  • Prohibit reverse patent settlements; and

  • Increase the speed and flexibility of the review process for biosimilars and generics.

The report also describes administrative actions across HHS and other agencies to lower drug process and promote competition. The report says that the Centers for Medicare & Medicaid Services (CMS) will continue to prioritize payment and service delivery models that test ways to reduce program and beneficiary spending on prescription drugs, support increased utilization of biosimilars and generic drugs, and lower overall spending while improving quality and beneficiary health. CMS will also use information from two data collections to improve prescription drug price transparency.

The report stresses that competitive markets for biological products, including biosimilars and interchangeable biosimilars, are essential for improving patient access to medicines and facilitating the reduction of health care costs. HHS is exploring ways to provide greater flexibility regarding the data and information needed to support licensure of a proposed biosimilar or interchangeable biosimilar to expedite the development and approval process.

The Food and Drug Administration (FDA) is executing the Drug Competition Action Plan whereby it will continue to clarify and improve the approval framework for generic drugs to make approval more transparent, efficient, and predictable. The FDA intends to bring greater transparency to the generic drug review and approval process, and remove barriers to generic drug development and market entry. The report also expresses support for the 340B Drug Pricing Program, which requires drug manufacturers participating in the Medicaid drug rebate program to provide outpatient drugs to eligible safety net providers at reduced prices.

With respect to pharmaceutical patent settlements, the report states that HHS will continue to support FTC “in its mission to ensure that any settlements do not infringe on competition and will remain vigilant to combat all forms of anticompetitive behavior by working with federal and state partners on enforcement.”

State of Competition within the Defense Industrial Base

In February 2022, the Office of the Under Secretary of Defense for Acquisition and Sustainment at the DOD issued a report on the State of Competition within the Defense Industrial Base. The report reviews “the state of competition within the [DIB], including areas where a lack of competition may be of concern and any recommendations for improving the solicitation process.”

The DOD asserts that competition is critical to national and economic security because “having only single source or small number of sources for a defense need can pose mission risk and, particularly in cases where the existent dominant supplier or suppliers are influenced by an adversary nation, pose significant national security risks.” With respect to the DIB, the report outlines a number of factors purportedly impacting competition, highlights what the DOB considers to be the potential effects of diminished competition, and makes the following recommendations to increase competition:

  • Strengthening merger oversight. The report analyzes what it describes as a the trend towards consolidation in the DIB due to vertical and horizontal integrations and the entry of private equity firms performing roll ups. According to the report, consolidation “can reduce the availability of key supplies and equipment, diminish vendors’ incentives for innovation and performance in government contracts, and lead to supply chain vulnerabilities.” The DOD intends to assess its approach to evaluating horizontal and vertical mergers with a focus on risk to national security. It is also working with DOJ and FTC to examine the impact of consolidation on the functioning of the defense sector and to identify as well as to address potential impacts caused by anticompetitive risks that could result from a proposed transaction.

  • Addressing intellectual property limitations. The report discusses what it describes as the“tension” that the intellectual property (IP) statutory and regulatory framework creates between driving competition to create innovative technology and establishing a form of limited monopoly to commercialize that new technology. Suggestions to alleviate this tension include ensuring that IP exclusive rights are considered in awarding contracts, and utilizing approaches that allow the government to limit the impact of restrictions on privately developed components.

  • Increasing new entrants and increasing opportunities for small businesses. The report describes how efforts to push the DOD toward procuring commercial items has resulted in benefits to competition because commercial products and services are acquired on a competitive basis. The reports advocates for the DOD to work to remove barriers to entry for new entrants to the DIB by increasing outreach and engagement with the defense industry, simplifying information on opportunities to do business with the DOD, and providing support to small businesses that seek to enter the defense marketplace. The DOD is prioritizing improving award timelines for Phase 1 Small Business Innovative Research (SBIR) and Small Business Technology Transfer (STTR) programs to bring new entrants into the national security and technology industrial base as well as to enable awardees to mature more rapidly technologies that support mission requirements.

  • Implementing sector-specific supply chain resiliency plans. The report outlines what DOD views as vulnerabilities in five critical focus areas: castings and forgings, missiles and munitions, energy storage and batteries, strategic and critical materials, and microelectronics, and discusses how workforce constraints and shortfalls in each of these sectors is a global manufacturing concern.

Competition in the Markets for Beer, Wine, and Spirits

In February 2022, the U.S. Department of the Treasury issued a report on Competition in the Market for Beer, Wine, and Spirits in response to a directive in the Executive Order that the Secretary of the Treasury, in consultation with the Attorney General and Chair of the FTC, probe threats to competition in this market. According to the report, it is intended to be an assessment of “the current market structure and conditions of competition, including an assessment of any threats to competition and barriers to new entrants, including: (i) unlawful trade practices . . . such as certain exclusionary, discriminatory, or anticompetitive distribution practices, that hinder smaller and independent businesses or new entrants from distributing their products; (ii) patterns of consolidation in production, distribution, or retail beer, wine and spirits markets; and (iii) any unnecessary trade practice regulations of matters such as bottle sizes, permitting, or labeling that may unnecessarily inhibit competition by increasing costs without serving any public health, informational, or tax purpose.”

The report identifies two major industry trends in the beer, wine, and spirits industries: the significant growth of small and “craft” producers, and increased consolidation at the distribution/retail levels. The report alleges that this combination has led to exclusionary behavior by large producers, distributors, and retailers that includes paying “slotting fees” to gain access to preferential display space, engaging in tying arrangements that require a retailer to purchase a manufacturer’s undesired brands as a condition of buying its desired brands, and “category management,” whereby wholesalers or producers purportedly seek to influence retailers’ decisions with respect to purchasing, stocking, and display decisions.

The report also contends that the enforcement of the Federal Alcohol Administration (FAA) Act’s competition provisions4 – originally intended to address overconsumption of alcohol and problems with organized crime—do not fully address the exclusionary impact of some business practices and may impose unnecessary burdens on small firms and new market entrants. The report argues that labeling preapproval requirements, bottle size restrictions, mandatory classification of beverages, and complex production permitting requirements “may impose a disproportionate burden on small and medium-sized producers without corresponding justifications based in public health or the prevention of anticompetitive behavior.”

The report recommends that DOJ and FTC:

  • Consider the effects on distribution stemming from major brewers acquiring craft brewers, and apply skepticism to claims of efficiencies in assessing mergers and in considering revisions to the merger guidelines;

  • Look closely at vertical mergers that may lead to monopolization or exclusion of small firms or new entrants;

  • In revising the merger guidelines, consider including guidance as to markets that are already highly concentrated;

  • Engage with state actors on state laws impacting competition in the alcohol markets; and

  • Consider conducting retrospectives on pricing, innovation, and distribution impacts from major brewers acquiring their craft counterparts.

The State of Labor Market Competition

In March 2022 the Treasury Department issued a report on The State of Labor Market Competition to “summarize the prevalence and impact of uncompetitive firm behavior in labor markets . . . [and] the ways in which insufficient labor market competition hurts workers.” The report posits that market power “may be inherent in the firm-worker relationship” and puts workers at an informational disadvantage relative to firms, limits worker ability to switch locations and occupations, and leads to decreased wages and weakened union power. It also estimates—based on a “review of credible academic studies”—that the increase in market power for employers has led to a roughly 20 percent decrease in wages relative to the level in a fully competitive market.

The report argues that there exists various types of “tacit collusion” in the labor market that may contribute to this power imbalance, such as wage-fixing, no-poach agreements, non-compete agreements, broad non-disclosure agreements, mandatory arbitration agreements, lack of pay transparency, and excessive occupational licensing requirements. In addition, the report describes how “fissured” workplaces with high percentages of outsourced employees can have a detrimental impact on workers and reduce labor’s share of surplus by weakening employees’ bargaining power, and argues that this can lead to reduced wages for outsourced workers. Relatedly, the report cites the “misclassification of workers” as a way that employers can offload the burdens of labor costs and continue to benefit from the productivity of workers who have little recourse. The report also includes a section highlighting the effects of consolidation on the labor markets in select industries including healthcare, agriculture, and minor league baseball.

The report outlines initiatives and policy proposals that it argues will bolster labor market competition and increase workers’ bargaining power. These recommendations include the following:

  • Proposed Legislation. Passing legislation that would expand labor rights to more workers, raise the federal minimum wage, restrict the use of mandatory arbitration and class action waivers, and protect whistleblowers who report criminal antitrust violations from retaliation.

  • Criminal antitrust enforcement. Continuing DOJ prosecution of criminal collusion in labor markets as part of its overall mission to deter, detect, and prosecute cartels.

  • Civil antitrust enforcement. Updating guidance on protecting competition in the labor markets “particularly in areas where changes in the economy may have led some people to incorrectly interpret the agencies’ past guidance in ways that are insufficiently protective of workers’ access to robust, competitive labor markets.” The report states that the agencies are working to revise their 2016 joint Antitrust Guidance for Human Resources Professionals to reflect “recent case experience and research that have shown that information-sharing, particularly in concentrated markets, may have potentially significant anticompetitive effects even when purportedly anonymized.” In addition, the report states that the upcoming revised federal merger guidelines will “reflect lessons learned from multiple recent merger cases brought by the agencies that implicated the rights of workers.”

  • Research and rulemaking. Using the FTC’s rulemaking authority to address the overuse of non-compete clauses and other clauses that may limit worker mobility unfairly.

  • Occupational licensing reform. Funding studies designed to understand and to reduce the impacts of inefficient licensing requirements.

  • Administrative actions. The report cites recent steps the Biden Administration has taken to decrease the level of concentration in labor markets, including issuing Executive Orders setting the minimum wage at $15 per hour for workers participating on or in connection with federal contracts and creating the Task Force on Worker Organizing and Empowerment to find ways that the executive branch agencies can use their existing authority to facilitate worker organizing and collective bargaining, and issuing a Department of Labor final rule placing reasonable limits on when an employer can take credit against its minimum wage obligations such as when a tipped employee performs non-tipped work.

Agricultural Competition: A Plan in Support of Fair and Competitive Markets

In May 2022, the USDA issued a report titled “Agricultural Competition: A Plan in Support of Fair and Competitive Markets.” The report “lays out USDA’s approach to promoting competition in agricultural markets,” and is part of the USDA’s “broader initiative to enhance supply chain resiliency by supporting more and better markets across multiple components of the food system.”

The agriculture report contends that the “longstanding challenges of market concentration and unbalanced market power” in the agricultural sector have worsened in recent years, resulting in high levels of concentration in the U.S. poultry grower, pork packing, and cattle slaughter industries that “makes our food supply system . . . more vulnerable.” The report outlines the agency’s “robust and aggressive plan” to decrease concentration and increase competition in the agriculture sector, with a focus on the following strategies:

  • Investing in promoting competition in meat and poultry processing. The report cites the Biden Administration’s efforts to expand meat and poultry processing capacity by improving access to capital through the Meat and Poultry Processing Expansion Program and the Meat and Poultry Intermediary Lending Program. The programs invest in food safety capacity, workforce training, and other measures that are intended to ensure success for independent processors, as well as in local and regional food infrastructure options for producers and consumers.

  • Restoring confidence, fairness, and integrity to the regulation of livestock and poultry markets. In partnership with DOJ and the FTC, the report states that the USDA is committed to robust antitrust enforcement to enhance food and agricultural supply chain resiliency. The report cites DOJ’s efforts to prosecute price fixing in the poultry markets5 as an example of the agency’s “determined and persistent approach to combatting . . . blatant violations.” In addition, the FTC and DOJ established FarmerFairness.gov, billed as a “one-stop shop” portal for ranchers and farmers to provide complaints and tips related to unfair and anticompetitive practices. The USDA is also developing new ways to use its authority under the Packers and Stockyards Act and Livestock Mandatory Reporting Act to address poultry contracting and tournaments, unfair practices, undue preferences, unjustly discriminatory practices, and deceptive practices as well as enhance transparency in cattle markets, respectively.

  • Enabling farmers and ranchers to fairly access value-added markets. The report commits USDA support to programs funding local and regional market development, building producer capacity to access those markets, and supporting regional coordination and collaboration to increase economic opportunities for local and regional farmers and ranchers, food businesses, and communities.6

Other Executive Order Initiatives and Agency Responses

In addition to formal reports submitted to the White House Competition Council, as described below, a number of federal agencies have responded in other ways to directives in the Executive Order focused on the following:

Agriculture
  • In January 2022, DOJ and USDA released a statement of principles and commitments to “protect against unfair and anticompetitive practices” in the agriculture sector.

  • In February 2022, DOJ and USDA launched farmerfairness.gov, an online tool allowing farmers and ranchers to report anonymously potentially unfair and anticompetitive practices in the livestock and poultry sectors.

  • In March 2022 the USDA issued a request for comment and information on the effect of retail concentration and retailers’ practices on the conditions of competition in the food industries.

  • In May 2022 the USDA announced (1) a proposed rule under the Packers and Stockyards Act that would require poultry processors to provide key information to poultry growers at several critical steps—increasing transparency and accountability in the poultry growing system; (2) that it is making available $200 million under the new Meat and Poultry Intermediary Lending Program; and (3) that it will provide $25 million7 in investments for workforce training programs for meat and poultry processing workers targeted through new and existing National Institute of Food Agriculture (NIFA) programs designed to create and expand upon good paying jobs that can strengthen the meatpacking industry by attracting and retaining employees.

  • In June 2022, the USDA issued a notice of proposed rulemaking seeking comments to inform policy developments regarding the use of poultry grower ranking systems (tournaments) in contract poultry production. Comments are due on 6 September 2022.

Communications
  • In August 2021 the Federal Communications Commission (FCC) announced two new Innovation Zones for Program Experimental Licenses in designated areas in Raleigh North Carolina and Boston, Massachusetts to “advance ongoing work to develop Open RAN . . .” in order to increase “competition and security in network equipment for 5G service and beyond . . . [and] turn up the innovation and supercharge competition and vendor diversity in the 5G supply chain.”

  • In January 2022, the FCC proposed new rules that would require broadband providers to display easy-to-understand labels to allow consumers to comparison shop for broadband services.

  • In February 2022, the FCC announced that, to “crack down on practices that prevent competition and effectively block a consumer’s ability to get lower prices or higher quality services,” it had adopted rules to prohibit broadband providers from entering into certain revenue sharing agreements with a building owner that keep competitive providers out of buildings.

  • In April 2022, the National Telecommunications and Information Administration (NTIA) issued a request for comment on competition in the mobile application ecosystem.

  • In July 2022, the FCC voted to create a new Enhanced Competition Incentive Program (ECIP) to establish incentives for wireless licensees “to make underutilized spectrum available to small carriers, Tribal Nations, and entities serving rural areas.”

Consumer Finance
  • In December 2021, DOJ (in consultation with the Federal Reserve, Office of the Comptroller of the Currency (OCC), and Federal Deposit Insurance Corporation (FDIC)) announced that it was seeking additional8 public comments on whether and how the Division should revise the 1995 Bank Merger Competitive Review Guidelines, “focuse[d] on whether bank merger review is currently sufficient to prevent harmful mergers and whether it accounts for the full range of competitive factors appropriate under the laws.” The comment period closed on 15 February 2022 and comments are published on the DOJ website.

  • In March 2022, the FDIC published a Request for Information in the Federal Register seeking information and comments regarding the laws, practices, rules, regulations, guidance, and statements of policy that apply to merger transactions involving one or more insured depository institutions, including the merger between an insured depository institution and a noninsured institution.

  • In a May 2022 speech at the Brookings Institute, the acting head of OCC announced that he had asked his staff to work with DOJ and other federal banking agencies to review the agency’s frameworks to analyze bank mergers. In the meantime OCC will review merger applications on a case-by-case basis and will only approve applications that promote competition and financial stability and cater to communities who rely on banking.

  • In May 2022, the Consumer Financial Protection Bureau (CFPB) announced the establishment of an Office of Competition and Innovation to “support a broader initiative by the CFPB to analyze obstacles to open markets, better understand how big players are squeezing out smaller players, host incubation events, and, in general, make it easier for people to switch financial providers.”

Health Care
  • In April 2022, the Centers for Medicare & Medicaid Services (CMS) released public data and an analysis of mergers, acquisitions, consolidations, and changes of ownership from 2016-2022 for hospitals and nursing homes enrolled in Medicare to inform policymaking to bolster competition in health care.

  • In July 2022, letter to the FDA, the USPTO outlined a series of joint initiatives to ensure that the patent system promotes research and development and protects key innovation in the manufacture and development of pharmaceuticals. According to a 6 July 2022 joint blog post, the letter highlights initiatives that the agencies believe will “protect against the patenting of incremental, obvious changes to existing drugs that do not qualify for patents . . . and [can] lead to lower drug prices because drug companies will not be able to unjustifiably delay generic competition on trivial changes to a drug product.”

  • In July 2022 the Director of the USPTO, Katherine Vidal, published a Notice in the Federal Register citing the Executive Order and stating that the “duty of candor and good faith in dealing with the [USPTO] includes the duty to disclose to the USPTO information material to the patentability of a claimed invention . . . including . . . statements made to the USPTO that are inconsistent with statement submitted to the FDA and other governmental agencies.”

Labor
  • In March 2022, DOJ and U.S. Department of Labor (DOL) signed a memorandum of understanding (MOU) “to strengthen the partnership between the two agencies to protect workers from employer collusion, ensure compliance with the labor laws and promote competitive labor markets and worker mobility.”

  • In July 2022, Secretary of Labor Marty Walsh published a blog outlining the steps the DOL has taken in the last year to eliminate anti-competitive employer practices, and committed to continuing to “working to empower and protect workers under President Biden’s Executive Order.”

  • In July 2022 the FTC announced that it had signed an MOU with the National Labor Relations Board (NLRB) outlining “ways in which the Commission and the Board will work together moving forward on key issues such as labor market concentration, one-sided contract terms, and labor developments in the ‘gig economy.’ ”

  • In July 2022 the DOJ and the NLRB signed a MOU “to strengthen the partnership between the two agencies to better protect competitive labor markets and ensure that workers are able to freely exercise their rights under the labor laws.”

Right to Repair
Shipping
  • In July 2021, the Federal Maritime Commission (FMC) and DOJ signed a Memorandum of Understanding to “foster cooperation and communication between the agencies to enhance competition in the maritime industry.”

  • On 28 February 2022, the FMC and DOJ announced a joint initiative to promote competition in the ocean freight transportation system.

Standard-Essential Patents
Transportation

Outstanding Executive Order Directives

A handful of agencies have not yet taken public action to address the competition-related mandates in the Executive Order directed at their organizations. Outstanding mandates include, but are not limited to the following:

Consumer Financial Protection Bureau
  • Undertake rulemaking under section 1033 of the Dodd Frank Act to facilitate portability of consumer financial transaction data to allow consumers to more easily switch financial institutions and use innovative financial products.
  • Enforce prohibition on unfair, deceptive, or abusive acts or practices in consumer financial products or services pursuant to section 1031 of the Dodd-Frank Act to prevent actors from distorting the proper functioning of the competitive process or obtaining an unfair advantage over competitors.
Department of Agriculture
  • Submit a report to the Chair of the White House Competition Council on the effect of retail concentration and retailers’ practices on the conditions of competition in the food industries and on grants, loans, and other support that may enhance access to retail markets by local and regional food enterprises.
  • In consultation with the Under Secretary of Commerce for Intellectual Property, Director of the USPTO, submit a report to the Chair of the White House Competition Council enumerating and describing any relevant concerns of the USDA and strategies for addressing those concerns across IP, antitrust, and other relevant laws.
Department of Commerce
  • In consultation with DOJ and FTC, conduct a study, including by conducting an open and transparent stakeholder consultation process, of the mobile application ecosystem, and submit a report to the Chair of the White House Competition Council, regarding findings and recommendations for improving competition, reducing barriers to entry, and maximizing user benefit with respect to the ecosystem.
Department of Defense
  • Submit a report to the Chair of the White House Competition Council on a plan for avoiding contract terms in procurement agreements that make it challenging or impossible for the Department of Defense or service members to repair their own equipment, particularly in the field.
Department of Transportation
  • Consult with the Attorney General regarding means of enhancing effective coordination between the DOJ and the DOT to ensure competition in air transportation and the ability of new entrants to gain access.
Department of the Treasury
  • Submit a report assessing the effects on competition of large technology firms’ and other non-bank companies’ entry into consumer finance markets.
Surface Transportation Board
  • Consider rulemakings pertaining to matters of competitive access, including bottle neck rates, interchange commitments, or other matters.

Next steps

There are likely to be new competition-related initiatives and policies announced in the coming weeks and months as federal agencies continue to respond to the mandates laid out in the Executive Order. Hogan Lovells will be closely following these announcements, and this article will be updated on a regular basis to reflect any relevant developments.

References
  1. Earlier this year, the FTC and DOJ launched a joint public inquiry seeking comments on developments in the modern economy and new evidence of mergers’ effects on competition to inform potential revisions to the federal merger guidelines.

  2. While the Executive Order contains directives related to both consumer protection and competition/antitrust concerns, this article will focus on the latter.

  3. 27 U.S.C. § 205(a)-(d).

  4. DOJ recently suffered a protracted, high-profile loss in its prosecution of multiple former and current executives from Pilgrim’s Pride Corp. and Claxton Poultry Farm for allegedly engaging in a scheme to rig bids for chicken sold to restaurant chains and grocery stores. Following two mistrials, on 7 July 2022 a Denver federal jury found the five chicken industry executives not guilty of price-fixing charges. Despite this loss, DOJ has committed to “continue to vigorously enforce the antitrust laws, especially when it comes to price-fixing schemes that affect core staples.” DOJ has two chicken price-fixing criminal cases currently pending in Denver federal court: a case against four Pilgrim’s Pride employees (trial scheduled for October 2022) and a case against Koch Foods and Claxton Poultry Farms (trial scheduled for April 2023).

  5. These programs include the Local Agricultural Marketing Program, Dairy Business Innovation Initiatives, and Specialty Crop Block Grant Program.

  6. Taken from American Rescue Plan Act Section 1001 funds.

  7. DOJ first announced that it was seeking public comments on the Bank Merger Guidelines on 1 September 2020. The original request for public comment included the following questions: (1) whether any new guidance should be bank-specific; (2) whether any new bank merger guidance should be jointly issued; (3) whether the 1800/200 Herfindahl-Hirschman Index (HHI) screen should be updated, and (4) whether there should be a de minimis exception. Building on the responses, the updated call for comment.

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