Agencies seek input on merger effects from stakeholders “outside the beltway”
Kanter said that the listening forums were intended to assist the agencies in broadening their understanding of how mergers affect the overall economy by hearing from stakeholders that “are true experts in terms of the on-the-ground experience with the impact that flows from mergers.”3 Coinciding with the official public comment period launched by the agencies as part of the process of revising the federal merger guidelines,4 the FTC and DOJ said that the four industries that were the focus of the listening forums were selected by the agencies because they are “commonly impacted by mergers that may reduce competition.”5 The industries chosen also are priorities in the Biden Administration’s broader antitrust enforcement goals, as stated in its 9 July 2021 “Executive Order on Promoting Competition in the American Economy.”6
The listening forums included opening and closing remarks delivered by Kanter and Khan. Members of the public delivered remarks either as “invited speakers” or during the “public comment” portion of the session; public commenters’ remarks were limited to two minutes, while invited speakers delivered lengthier statements. The process by which invited speakers and public commenters were selected by the agencies is not clear. In recent public remarks, Republican FTC Commissioner Noah Phillips implied that the other FTC commissioners were not asked to provide input on the selection of the speakers. Commissioner Phillips said that “there is no transparency to me or the public about how the presenters [in the listening forums] – who have uniformly negative things to say – are being selected. This stands in stark contrast to countless past public hearings, where commissioners besides the Chair got input into who would speak.”7
Below are takeaways from each of the four sessions, with a focus on comments and reactions from DOJ and FTC leadership in response to testimony from listening forum participants.8
During her opening statements during the agriculture session, Khan highlighted the “key aspects of the FTC’s work” focused on promoting competition in the agriculture sector. This work includes looking at whether repair restrictions by equipment manufacturers limit options and raise costs, and enforcing the antitrust laws in retail markets. Khan also touted efforts the FTC has made to partner with the Agriculture Department and DOJ to help “put in place strong USDA rules that can forcefully protect farmer’s rights under the Packers and Stockyards Act.”9
During the session, FTC and DOJ heard from cattle ranchers, grocers, farmers, and other stakeholders and participants in the cattle, dairy, seed, retail, poultry, and pork markets, who testified about how increased consolidation in their industries have affected their businesses. Khan noted her concern that consolidation in the industry can lead to higher costs, lower quality, and reduced choice, and can “enable firms to engage in business practices, such as dictating terms or engaging in discriminatory conduct” that can harm competition. Kanter also highlighted exclusionary practices as an area of focus for the agencies as they work to revise the merger guidelines, saying that he considers such practices to be a “very real consequence of consolidation” that “could be used to effectuate market power as a result of consolidation.”10
Principal Deputy Assistant Attorney General Doha Mekki opened the healthcare session by remarking that in the healthcare industry, “concentrated market structures can harm patients downstream at the same time that they harm healthcare workers upstream.”11 Following testimony from nurses, doctors, pharmacists, and other stakeholders, Khan said that the FTC should be “appropriately skeptical” of efficiency claims with respect to hospital mergers, arguing that “sometimes . . . cost cutting can come at the expense of quality of care.”12 Chair Khan also said that the agencies have been looking at the effects of healthcare mergers on workers and labor markets, expressing concern that mergers are “reducing the employment opportunities for healthcare workers, allowing employers to dictate wages and degrade working conditions, be it in the pharmacy context or physician context, or in the context of nurses or healthcare workers . . .” Of note, many of the comments related to corporate ownership of healthcare providers, rather than to more traditional antitrust theories. Khan also expressed interest in the effect that vertical integration of pharmacy benefits managers (“PBMs”) has had on drug pricing.
Media and Entertainment
Khan opened the media and entertainment session by noting that the entertainment sector has undergone “significant transformation” in recent years, specifically with respect to distribution options and the structure of markets for live entertainment ticketing, streaming content, and news media. Khan discussed how the vertical integration of media companies results in large companies “controlling the supply chain” from content creation to distribution and allows companies to exert market power over creators and other market participants. Khan also called consolidation in the news industry a “troubling trend” that has effects on the quality of local coverage in smaller communities. In line with the testimony of musicians and writers, Khan warned that increased consolidation has facilitated a small number of firms in “wield[ing] outsize power with respect to how power is distributed in this country,” and cautioned that the material effects of consolidation include job losses, wage stagnation, and higher priced and lower quality content for consumers. Kanter reiterated his belief that behavioral remedies cannot solve anticompetitive mergers,13 noting that conditions on a merger that are designed to preserve competition can be difficult to administer.
Kanter opened the discussion of the effects of mergers in the technology sector by remarking that “there is perhaps no more consequential topic in antitrust enforcement today than digital markets.”14 Kanter voiced concern that if diversity in digital markets is not protected, consumers will “lose their ability to exercise meaningful decision-making power of where they get their information” and what companies control the use of their personal data. Kanter argued that allowing “dominant” tech firms to purchase nascent competitors has the effect of reducing competition and limiting innovation. This argument was challenged by the testimony of technology investors and venture capitalists, who countered that foreclosing the opportunity of startups to be acquired by large digital firms would lead to a decrease in innovation by limiting the early-stage investments that allow emerging companies to develop innovative technologies.
Testimony from small business owners addressed the difficulty of (and lack of alternatives to) doing business with large tech firms that demand high fees in exchange for use of their platforms, making it difficult for independent businesses to turn a profit. Khan stressed that the lack of viable alternatives to these dominant platforms results in a small number of digital gatekeepers controlling how consumers find restaurants, home services, healthcare and “a whole host of other services.”15 Finally, the discussion also touched on the difficulty parents and students face in maintaining control of student data routinely collected through the use of educational technology platforms.
The listening sessions highlighted a few common areas of focus across industries that agencies are likely to prioritize in their revisions to the federal merger guidelines. These include the effects of consolidation on wages and labor conditions, the potential harms of vertical integration, the impact of acquisitions of nascent competitors on innovation, and how mergers affect the ownership of user data and the free flow of information. Whether the revised merger guidelines will explicitly address these issues is an open question. However, it is clear that the agencies are considering substantial changes to their merger guidelines.
1 Federal Trade Commission press release, FTC and Justice Department launch listening forums on firsthand effects of mergers and acquisitions (17 March 2022) available at https://www.ftc.gov/news-events/news/press-releases/2022/03/ftc-justice-department-launch-listening-forums-firsthand-effects-mergers-acquisitions.
2 Federal Trade Commission, FTC and DOJ Host Listening Forum on Effects of Mergers in Health Care Industry (14 April 2022) transcript available at https://www.ftc.gov/system/files/ftc_gov/pdf/FTC-DOJ-Listening-Forum-%20Health-Care-Transcript.pdf.
4 The FTC and DOJ’s joint public inquiry soliciting public comment as part of the agencies’ “process to modernize the merger guidelines to better detect and prevent anticompetitive deals” concluded on April 21, 2022. The agencies reportedly received over 5,000 comments during the comment period.
5 FTC press release, FTC and Justice Department Launch Listening Forums on Firsthand Effects of Mergers and Acquisitions (17 March 2022).
6 Exec. Order No. 14036, 86 CFR § 36987 (9 July 2021).
7 Federal Trade Commission Prepared Remarks of Commissioner Noah Joshua Phillips, Disparate Impact: Winners and Losers from the New M&A policy, Eight Annual Berkeley Spring Forum on M&A and the Boardroom (27 April 2022) available at https://www.ftc.gov/system/files/ftc_gov/pdf/Phillips_Keynote-Berkeley_Forum_on_MA_FINAL.pdf.
8 The FTC published additional information on the speakers as well as transcripts and videos of each session on its website, available at the link provided in note 1 above.
9 Federal Trade Commission, FTC-DOJ Merger Guidelines Listening Forum (28 March 2022) transcript available at https://www.ftc.gov/system/files/ftc_gov/pdf/FTC-DOJ%20Merger%20Guidelines%20Listening%20Forum_FTC_March%2028%202022.pdf.
11 Federal Trade Commission, FTC and DOJ Host Listening Forum on Effects of Mergers in Health Care Industry (14 April 2022).
13 Department of Justice press release, Assistant Attorney General Jonathan Kanter of the Antitrust Division Delivers Remarks to the New York State Bar Association Antitrust Section (24 January 2022) transcript available at https://www.justice.gov/opa/speech/assistant-attorney-general-jonathan-kanter-antitrust-division-delivers-remarks-new-york.
14 Federal Trade commission, FTC and Justice Department Listening Forum on Firsthand Effects of Mergers and Acquisitions – Technology (12 May 2022).