Sec. 8. Office of Competition Advocate
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In this section— the term agency has the meaning given the term in section 551 of title 5, United States Code; the term covered company means any company that has, at any time, been required to make a filing under section 7A of the Clayton Act ( 15 U.S.C. 18a ); the term Office means the Office of the Competition Advocate established under subsection (b); the term Chairman means the Chairman of the Commission; and the term Commission means the Federal Trade Commission. There is established within the Federal Trade Commission the Office of the Competition Advocate.
The head of the Office shall be the Competition Advocate, who shall— report directly to the Chairman; and be appointed by the Chairman, with the concurrence of a majority of the Commission, including at least 1 Commissioner who is not a member of the same political party of the majority members of the Commission, from among individuals having experience in advocating for the promotion of competition. The annual rate of pay for the Competition Advocate shall be equal to the highest rate of annual pay for other senior executives who report to the Chairman of the Commission.
An individual who serves as the Competition Advocate may not be employed by the Commission— during the 2-year period ending on the date of appointment as Competition Advocate; or during the 5-year period beginning on the date on which the person ceases to serve as the Competition Advocate. The Competition Advocate, after consultation with the Chairman of the Commission, shall retain or employ independent counsel, research staff, and service staff, as the Competition Advocate determines is necessary to carry out the functions, powers, and duties of the Office.
The Competition Advocate shall— recommend processes or procedures that will allow the Federal Trade Commission and the Antitrust Division of the Department of Justice to improve the ability of each agency to solicit reports from consumers, small businesses, and employees about possible anticompetitive practices or adverse effects of concentration; publicly provide recommendations to other Federal agencies about administrative actions that may have anticompetitive effects and the potential harm to competition if those actions are carried out; provide recommendations to other Federal agencies about administrative actions that may have procompetitive effects and the potential benefit to competition if those actions are carried out; publish periodic reports on— market competition and its impact on the United States, local geographic areas, and different demographic and socioeconomic groups; and the success of remedies required by the Department of Justice or the Federal Trade Commission in consent decrees; collect data regarding concentration levels across industries and the impact and degree of antitrust enforcement; and standardize the types and formats of data reported and collected.
The Competition Advocate may either require the submission of or accept voluntary submissions of periodic and other reports from any covered company for the purpose of assessing competition and its impact on the United States, local geographic areas, and different demographic and socioeconomic groups. Before issuing a subpoena to collect the information described in paragraph (1), the Competition Advocate shall make a written finding that— the data is required to carry out the functions of the Competition Advocate; and the information is not available from a public source or another agency.
Before requiring the submission of a report from any company required to make a filing under section 7A of the Clayton Act ( 15 U.S.C. 18a ), the Competition Advocate shall— coordinate with other agencies or authority; and whenever possible, rely on information available from such agencies or authority. There is established within the Office the Data Center. The Data Center shall— collect, validate, and maintain data obtained from agencies, as defined in section 551 of title 5, United States Code, commercial data providers, publicly available data sources, and any covered company; and prepare and publish, in a manner that is easily accessible to the public— a concentration database; a merger enforcement database; any other database that the Competition Advocate determines is necessary to carry out the duties of the Office; and the format and standards for Office data, including standards for reporting financial transaction and position data to the Office.
The Competition Advocate shall promulgate regulations relating to the collection and standardizing of data under paragraph (2). The Data Center may not disclose any confidential data collected under paragraph (2). Data obtained from an agency shall be subject to the same confidentiality requirements and protection as the agency providing the data. The Competition Advocate shall ensure that data collected and maintained by the Data Center are kept secure and protected against unauthorized disclosure.
There is established within the Office the Division of Market Analysis. The head of the Division of Market Analysis shall be the Director of Market Analysis, who shall— report directly to the Competition Advocate; and be appointed by the Competition Advocate, with the concurrence of a majority of the Commission, including at least one Commissioner who is not a member of the same political party of the majority members of the Commission. The Division of Market Analysis shall retain or employ independent legal, economic, research, and service staff sufficient to carry out the functions, powers, and duties of the Division.
The Division of Market Analysis— shall, at the direction of the Competition Advocate or the Commission, conduct investigations of markets or industry sectors to analyze the competitive conditions and dynamics affecting such markets or industry sectors, including the effects that market concentration, mergers and acquisitions, certain types of agreements, and other forms of business conduct have on competition, consumers, workers and innovation, and shall publish reports on the results of such investigations; shall, at the direction of the Competition Advocate or the Commission, conduct investigations concerning the competitive effects of acquisitions that have been consummated no less than 2 years prior to the start of the investigation, which shall include recommendations concerning appropriate enforcement action to remedy any anticompetitive effects discovered and may include assessments of— the conditions of the relevant markets affected by the acquisition, over the period since the acquisition was consummated, including, but not limited to, the potential impact that the acquisition has had on— the prices of goods or services, including wages in any affected labor markets; the output and quality of goods and services; the entry or exit of competitors; innovation; consumer choice and product variety; the opportunity of suppliers and works to sell their product or services; coordinated interaction between competitors; and subsequent mergers and acquisitions activity; whether the acquiring person or its successors in interest— complied with all obligations under any agreement with the Federal Trade Commission, the United States, or State law enforcement authorities to resolve a proceeding brought under the antitrust laws; and achieved measurable, transaction-specific efficiencies, which did not arise from anticompetitive reductions of output, as a result of the acquisition; and whether any agreements with the Federal Trade Commission or the United States to resolve a proceeding brought under the antitrust laws regarding the acquisition was effective in mitigating the anticompetitive effects from the acquisition; shall rely on public data and information, public comment, information from other Federal agencies, information from the Data Center, information obtained pursuant to the Competition Advocate’s subpoena authority under subsection
(f)of this section and may use compulsory process under section 6(b) of the Federal Trade Commission Act ( 15 U.S.C. 46(b) ) as necessary to carry out the functions set forth in subsections (h)(3)(A) and (h)(3)(B) of this section; and shall report any evidence it obtains that any person, partnership, or corporation has engaged in transactions or conduct that may constitute of a violation of the antitrust law to the Commission, which may institute further investigation, initiate enforcement proceedings, or refer such evidence to the Attorney General.
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