Sec. 2. Findings and purposes
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/bill/117/s/3847/is/section-2·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Congress finds that— the Constitution of the United States prohibits political or economic oligarchies, which are incompatible with a republican form of government; the antitrust laws, including the Sherman Act ( 15 U.S.C. 1 et seq. ), the Clayton Act ( 15 U.S.C. 12 et seq. ), and the Federal Trade Commission Act ( 15 U.S.C. 41 et seq. ), were enacted to prohibit political and economic oligarchies, to protect fair, open, and competitive markets, and to prevent corporations from abusing their power to stifle competition and improperly influence democratic processes;
Federal courts have misinterpreted the antitrust laws to the detriment of consumers, workers, society, and the United States political economy, including by enhancing the misguided and narrowly defined consumer welfare standard, as described by the Supreme of the United States in Reiter v. Sonotone Corp., 442 U.S. 330 (1979), and its progeny; concentrated economic power creates concentrated political power, allowing giant corporations to invest growing sums of money into influencing government to tilt laws and rules in their favor; over the last 4 decades, powerful corporations have unconstitutionally amassed too much influence over the United States economy, stifling competition in United States markets and harming workers, consumers, customer choice, sellers, small and minority-owned businesses (including farms and ranches), local, rural, and low-income communities, communities of color, privacy, quality, entrepreneurship, and innovation; in 1975, 109 companies pocketed half of all profits generated by firms in the United States whereas in 2015, the top 30 firms did so; startup rates fell by more than half over the last 4 decades in industries that saw an increase in concentration; dominant corporations, which often underinvest in their operations and infrastructure, expose consumers in the United States to the risks of concentrated and brittle supply chains, such as shortages of essential goods and increased prices; market concentration in essential markets, including those for medical equipment, food, and retail, can pose serious national-security risks during crisis events such as the COVID–19 pandemic; market concentration is associated with lower wages, and evidence shows that in more concentrated markets, giant corporations are less likely to pass on productivity gains to workers in the form of higher wages and more likely to engage in antiworker labor practices, which disproportionately harm female workers and workers of color; corporate consolidation has especially harmed rural communities, low-income communities, and communities of color, as demonstrated by the impact of the recent Sprint and T-Mobile merger on low-income customers who purchase prepaid plans;
Federal agencies other than the Federal Trade Commission and the Department of Justice may have particular expertise with respect to the competitive effects of an acquisition and should play a stronger role in antitrust enforcement; State attorneys general may have critical local knowledge or regional concerns about the competitive effects of an acquisition and should play a stronger role in antitrust enforcement; section 7A of the Clayton Act ( 15 U.S.C. 18a ) (referred to in this section as section 7A ) was enacted to allow the antitrust agencies to review acquisitions before consummation; the recent explosion of filings under section 7A has overwhelmed the Federal Trade Commission and the Department of Justice, a phenomenon exacerbated by strict statutory deadlines for the review process and an onerous judicial process to obtain injunctions to block acquisitions likely to lessen competition; the antitrust agencies should be empowered to reject acquisitions that they review under section 7A, and those decisions should be treated as reviewable agency actions; the use of structural and behavioral remedies to protect competition and prevent monopolistic behavior has proven ineffective across various industries; the Federal Trade Commission and the Department of Justice have the authority under existing law to conduct retrospective reviews of any consummated acquisition at any time, regardless of whether the acquisition was nonreportable or the government opposed the acquisition before its consummation; because some data about the competitive effects of an acquisition will necessarily emerge after consummation, it is critical that the Federal Trade Commission and the Department of Justice conduct retrospective reviews of acquisitions in order to remedy anticompetitive acquisitions, including through unwinding; an acquisition may have competitive effects in markets beyond the lines of commerce of the transaction, particularly when a party has an extensive business ecosystem; and excessive market concentration must be remedied to restore and protect competition in the United States and ensure the United States economy and democracy benefit workers, consumers, customer choice, sellers, small and minority-owned businesses (including farms and ranches), local, rural, and low-income communities, communities of color, privacy, quality, entrepreneurship, and innovation.
The purposes of this Act are to— ban the most anticompetitive acquisitions; restore and protect the competitive process; amend section 7A to empower the antitrust agencies to reject acquisitions before consummation through agency action; reduce the burdens of contemporary merger litigation placed on Federal and State officials; establish a greater role for Federal agencies and State attorneys general in the merger-review process; establish procedures for retrospective reviews; break up acquisitions consummated during the 21st century that have lessened competition and harmed the competitive process; ensure that the structure of the United States economy is competitive and fair in order to safeguard the nation against economic and political oligarchies; and uphold the mandate in the Constitution of the United States to promote a flourishing democracy by promoting meaningful competition throughout all segments of the United States economy.
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- 442 U.S. 330
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